[Chapter-delegates] FYI - ISOC statement about on Internet blocking measures in Catalonia, Spain

[Pablo García Mexía]

Dear Friends:
I hope this account may contribute to shed some light on the issue,
especially the background of the problem.
1. Spain is a full democracy.
In a 1-9 scale on The Economist Democracy index, it scores 8: that ranks
Spain together with the UK or Germany and higher than France, Italy, the US
or Japan. https://www.economist.com/blogs/graphicdetail/2017/01/daily-
chart-20
Its courts are independent and its press is among the freest in the world.
2. Catalonia (pop. 7.500.000) is an autonomous region within Spain, that is
to say it exercises political powers pretty much the sort of a Canadian
province or a German Land. For a quick glance, www.gencat.cat
Amongst this array of powers are to be noted the most important levers of
today´s welfare, including health and education.
Catalonia (only the Basque country as well) is also fully responsible for
security within its borders: a 17.000-manned police force is in charge of
this.
Catalonia elects a Parliament every four years. Its President is designated
by this Parliament. Its President in turn appoints the government.
Catalonia is a very prosperous region, it accounts for 20% of the Spanish
GDP.
3. In 2006, both Catalonia and the Spanish Parliament passed a thorough
revision of the Catalan regional constitution. Four years later in 2010,
the Constitutional Court validated most of the text, although it also
struck down some of its most controversial features, notably those leading
to placing Catalonia on an equal foot with Spain as a whole.
4. Shortly after, the nationalist forces in Catalonia began to strive for a
referendum as the only way out of their aspirations for more political
power, let alone full independence. According to reliable polls, around 80%
of the Catalan people support their right to decide upon their own future,
irrespective of the rest of Spain; this percentage goes down to around 15%
among the rest of Spaniards, aprox. 80% contending that the whole of the
country and not only Catalans should decide upon this.
A popular "consultation" was promoted by the Catalan government in the Fall
of 2014 (the word "referendum" was deliberately avoided for the reason
explained below). The government in Madrid considered this illegal, for
according to the Constitution only the Spanish Parliament is entitled to
call a referendum. In an injunction the Constitutional Court held the legal
framework for the consultation inapplicable. Yet the Spanish government
allowed the vote to actually take place. Votes for independence were 80,76.
Turn out was 37,02%.
As a result of the use of public resources, the President of the Catalan
government at the time and several cabinet members were prosecuted in court
(also by the Spanish Parliament-dependent equivalent of the Accounting
Office) under several allegations, including misappropriation of
government funds.
5. In the regional elections of September 2015, the nationalist parties
joined forces under the slogan "Together for Yes", with a view to turn the
election into the referendum Catalonia had not been allowed to carry out.
These parties obtained 62 seats in Parliament; the other pro-Independence
party (CUP) obtained 10: 4 seats above the absolute majority (68). However
the popular vote obtained by all of them accounted for 47,8% of the popular
vote. 52,2% of the voters did not support them. Turn out was very high as
compared to other previous elections: 77,3%.
6. With support from CUP, the "Together for Yes" parties designated the
current President and cabinet of Catalonia. The core of their political
agenda was a new referendum for independence. Outright independence has
been openly envisaged by the President and his cabinet since in power,
should the referendum be won. Catalan government resources and efforts have
eversince been devoted to preparations for independence.
The two critical pieces of legislation paving the way for this process are
the one calling the referendum and the one providing for transition
measures once independence should be declared.
Both were passed in application of a previous revision of the Parliament´s
rules of procedure that had been found inapplicable by the Constitutional
Court. This revision made it possible for these two bills to be passed in a
single seating and hence in one day and after granting the opposition
parties a two-hour term to amend them. Texts had been kept away from public
scrutiny until that very day. This was done against the views of the two
Clerks of the Catalan Parliament, who warned of potential criminal
consequences. The opposition parties requested their right to have the
Regional Constitutional Court issue an opinion on these laws. The Regional
Constitutional Court published a statement that very day whereby they
declared that such an opinion was compulsory according to the Regional
Constitution. The Regional Constitutional Court ended up not being
consulted.
All the opposition parties (52 seats) except for Catalunya Sí que es Pot
(11 seats) left the room before the vote took place. The reforms were
passed with the votes from the pro-independence parties, namely "Together
for Yes" and CUP. Catalunya Sí que es Pot voted against.
One of said laws proclaims the sovereignty of the Catalan people and as a
result its right of selfdetermination and of secession from the rest of
Spain. According to the Spanish Constitution, sovereignty lies with the
Spanish people as a whole.
The UN restricts the scope of the right of selfdetermination to former
colonies. Two Constitutions in the world enshrine the right of
selfdetermination of a region within their own territory: Ethiopia´s and Saint
Kitts and Nevis´ (in the Caribbean).
The other law establishes the main rules for the referendum among the
Catalan people: no reinforced majority needed, no minimum turnout needed
for independence to be declared.
7. Again the Spanish government challenged these legislative measures
before the Constitutional Court, with support from the main opposition
party in Spain (PSOE) and the fourth biggest (main oppositon force in
Catalonia itself, Ciudadanos). The third national force instead (Podemos)
supports the referendum.
One further step: the Attorney General pressed charges before the relevant
criminal courts against the high-ranking officers, other officials and
other citizens allegedly involved directly in the referendum´s
organization. These courts have ordered arrests as a result of these
actions.
Police forces following court orders in this context include the Catalan
autonomus Police.
8. Other measures ordered by the courts include banning access to certain
websites displaying contents related to the referendum´s organization. As
you know, our colleagues from ISOC.Cat contend that such ban breaches free
speech rights; also that some of those websites are not directly involved
in the referendum´s organization itself.
I refer to the Statement having been made public by ISOC-Spain´s Board as
to the lawfulness of requesting from ISPs the banning of certain websites
inasmuch as their contents maybe illegal as determined by courts, the
banning itself being requested by Police forces following court orders.
Though I must point out this lawfulness has already been confirmed by the
Court of Justice of the EU since 2014 (UPC Telekabel Wien, C-314/12), as
long as proportionality is respected. For the sake of comparison: also for
instance by the Canadian Supreme Court in their ruling from last June 20,
compelling Google to deindex search results linking to illegal contents
(not only from Canadian extensions, but across the world).
I also refer to what ISOC-Spain´s Board recently declared as to the main
contention of ISOC-EU´s statement, namely the allegedly indiscriminate
banning of .CAT websites as requested by Police forces following court
orders.
9. If you have been uncautious enough as to have read this far, you will
easily understand why ISOC should in my view have consulted the other
Chapters within Spain before exclusively relying on the views of our
colleagues from ISOC-CAT, absolutely legitimate on the other hand.
10. This is why I hope this unfortunate event will be of use to all of us
in ISOC in the future. For better or worse, the Internet is already just
too important to remain isolated from the rest of the world.
Civil rights will only be rights in today´s world if they can also be
upheld online. Correspondingly, no laws can simply aspire to be minimally
respected if they cannot be enforced on the Internet as well. Also laws
entailing civil rights themselves.
The rights of those in favor of the referendum and of those against. If it
is of any use, some of the organizations for independence are encouraging
citizens to make up lists containing names of persons against independence
in their surroundings who consequently do not intend to vote. Also dozens
of public schools have taken kids out of regular classes and sent them to
pro-independence demonstrations or had them distribute pro-independence
propaganda on the streets.
I leave judgment and opinions to yourselves.
And I sincerely apologise to those of you who may find this account as a
source of politicization of our organization: I am the first one to regret
having found myself in a position to deem it as a duty sharing this
information with all of you.
Best wishes.

--
Pablo García Mexía, J.D., Ph.D.
Board Member
ISOC-Spain






On Wed, Sep 27, 2017 at 10:29 PM, Evan Leibovitch <evan at telly.org> wrote:

> *Disclaimer; I am a white male Canadian with no family or business affairs
> in Catalonia or the rest of Spain. I have experienced first-hand separation
> referenda in my own country but make no comment on the merits of Catalonian
> independence or even the right to separate. If these characteristics cause
> one to discount my opinion, that is your prerogative. I speak for nobody
> but myself.*
>
> Personally I see this as two very distinct issues being mixed together
> with awful results.
>
>    - The legality of this (or any) referendum vote and the obligation of
>    any public body to recognize its results
>
>    - The rights of the population of Catalonia to express an opinion
>    whether or not it wishes to separate
>
> Spanish courts have ruled that the vote is not part of a legal separation
> process. I have no opinion on that but accept its judgment. Fine, this
> means that the vote being proposed is not authoritative or binding on any
> government and legally can be nothing more than a (very comprehensive and
> expensive) advisory survey.
>
> What I can neither understand nor accept as legitimate is the so-called
> illegality of even holding this non-binding advisory survey. Declaring the
> mere collection of opinion to be illegal crosses the line very clearly from
> structure and constitution to the right of people to express themselves.The
> vote is not one to express hate, racism or violence and as such should be
> protected as a form of free speech. The mere expression of dissatisfaction
> with constitutional structure should not be a criminal act, to make it so
> is an artifact of repressive regimes.
>
> Furthermore -- and this is the relevance to ISOC -- state action against
> websites and puntCAT represents a politically-justified assault on peoples'
> ability to express opinions on where and how to even arrange this
> non-binding advisory survey. The need for the Spanish government to silence
> the mere operation of the survey indicates -- to this distant and
> dispassionate observer -- extreme fear of the result, not the reaction of a
> democratic society.
>
> Just my opinions. I welcome facts and alternative views and remain open to
> change my mind.
>
> --
> Evan Leibovitch
> Toronto, Canada
>
> Em: evan at telly dot org
> Sk: evanleibovitch
> Tw: el56
>
>
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> Chapter Portal (AMS): https://portal.isoc.org
>
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