Backing into the future – on the new Spanish ”gag law”

In the wake of the sharp protests against various “austerity politics”, the Spanish government has in recent years carved away at civil rights and freedoms, writes teacher in International Law at the University of the Balearic Islands Margalida Capellà i Roig. International critic has not been long in coming – but does it have any impact on the Spanish rulers?

October 13 2015 Text: Margalida Capellà i Roig

On July 1 the new Public Safety Law, more widely known as the Gag Law, came into force in Spain. The nickname this law has been given by the public and media is more than justified: it constitutes, together with some modifications of the Penal Code which were published simultaneously, the most serious regression of rights and freedoms in Spain since the transition to democracy at the end of the 1970s. During its implementation, the law failed to gain any parliamentary support from the opposition, and was approved by votes solely from the governing party, Mariano Rajoy's Popular Party. The left parties have brought the matter to the Constitutional Court, but there is no expectation of great results from a court which has been traditionally characterised by its alignment with the government.

The aspects of the law most protested against relate to the severe restrictions imposed on the right to free expression of political positions and on the right to protest. These are restrictions designed in response to peaceful protest actions that have occurred in Spain in recent years.

A large demonstration in Madrid, on May 15, 2011, marked the beginning of what would become known as the “indignant” movement, a wave of social protests against corruption, against the stagnant Spanish political system, and against the power of banks and corporations over that system. Some of the protests took place in front of the Congress of Deputies and regional parliaments, such as the Catalan parliaments. One of the articles of the Gag Law, in response, classifies “any disturbance of order” which occurs before the Congress, the Senate or the regional parliaments as an offence.

Another citizen movement which has become visible in the media and on the street is “anti-mortgage platforms”, which involved a lot of protest actions against the execution of evictions carried out by the banks in the event of non-payment of mortgages. These actions are also included on an ad hoc basis in the Gag Law, which establishes that the police can punish those who “obstruct any authority, public servant or official corporation in relation to compliance with or enforcement of administrative or judicial agreements or resolutions”.

Let us also consider actions which are typical of Greenpeace and other environmental groups, seeking the media exposure via activists hanging from buildings such as nuclear power plants or works with a large environmental impact. The law covers these too, and establishes prohibitions and appropriate sanctions.

One of the items which has proven most controversial is that which aims to promote the opacity of actions by the forces of public order, prohibiting the taking and publishing photographs of policemen (via social networks, for example), under the pretext that it may endanger their safety or that of the buildings they protect, or endanger the success of an operation. It is not difficult to see that this is a law which hinders any citizen surveillance in relation to the performance of security forces.

Parallel to the Gag Law, the government also prepared an amendment to the Penal Code that, in many respects, goes in the same direction. These modifications,in addition to aspects relating to protection of children and of intellectual property, introduces aspects such as the ability to classify various behaviours as terrorist offences and introduced “revisable permanent imprisonment”, a euphemism for life imprisonment, contrary to the Spanish constitutional system. The new Penal Code came into force in Spain at the same time as the Gag Law: these are two legal texts which make up a unique package of measures of repression.

The Gag Law and reform of the Penal Code were met with criticism from the moment their contents became evident. Leftist parties, much of the press, citizen movements and a lot of voices from the world of culture and law have mentioned their repressive nature. The criticisms spread rapidly worldwide. In April 2014 (more than one year, therefore, before final approval), the international secretariat of Amnesty International had already published a report of almost 100 pages with the significant title “Spain: the right to protest, under threat”. The final recommendations, quite contrary to the new law, urged public authorities to regulate the right to protest in the least restrictive way possible and to introduce mechanisms for transparency and accountability for police forces.

The Spanish Government must not have suspected that the Gag Law would be questioned by the highest levels of international organizations. In February 2015 the United Nations published a report signed by three special representatives of the Organisation, in which it was alleged that the Spanish laws “threatened to violate rights and fundamental freedoms”. However, the headlines declaring that “The United Nations accuses Spain of cutting rights and freedoms” did not seem to exercise any effective pressure on a government dedicated to democratic regression.

Shortly afterwards, in April, another blow to the international reputation of the Spanish Government appeared, in the form of an editorial in the New York Times. The title of the text is perfectly indicative of its content: “Spain's Ominous Gag Law”, with the final paragraph being the most damaging, i.e., in the comparison with the Franco dictatorship: “Spain's new gag law disturbingly harkens back to the dark days of the Franco regime.” It is well known, however, that for the leaders of the Popular Party accusations of similarities to Franco are not particularly offensive.

Another example of an international echo in relation to the new legislation occurred last August, and referred to a sanction imposed on a citizen in application of the law in force. The news appeared in “Le Monde” and other French media last August, and recounted the news of a citizen of Petrer, a locality of Alicante, receiving a fine of 800 euros for publishing a photograph of a police car parked in a space reserved for disabled people via social networks. Explanations from the police, according to which this was a car responding to an emergency situation, could serve to explain the vehicle's parking but hardly justify the fine. The information was accompanied by a photograph of a young protester with a gag covering their mouth.

In December a general election will be held in Spain which may result in either a new Popular Party Government or a Government of the political forces which brought the Gag Law before the Constitutional Court. Spanish society, and international society, should continue to demand the abolition of these new legal texts. The way in which this issue is resolved will be indicative of whether we are (in Spain, but also in the whole of Europe) in the midst of a historical moment marked by the repression of rights and freedoms, or whether our societies will continue advancing, even with setbacks as significant as this one, towards greater levels of freedom. At the moment, what has happened in Spain constitutes a reversal of years of progress which this society will find difficult to forget.