I.

Introduction

Pas de libert pour les ennemis de la libert

(Antoine de Saint-Just, 1767-94) The author of this quote Louis Len Saint-Just was a French revolutionary and military leader. The translation would be no freedom for the enemies of freedom. All societies should live in freedom, because freedom is the maximum expression of individuals desires. However, this freedom must be framed. There must be some limitations, otherwise we would be in what Hobbes called state of nature, a war of all against all. The contemporary democracies have solved this issue; there is a contract between the citizen and the politicians. The freedom is guaranteed within the rule of law in most constitutions in the world. In Spain, the freedom of expression and association is guaranteed in the 1978 Constitution. However, the government of the right-wing party of Jos Mara Aznar aims to defeat the terrorist band ETA, and in 2002 drew up a political party law. This restricts some political forces to participate in the formal political arena, in other words, in electoral competition. Some could ask, why a political party law? ETA is a terrorist band not a political party. The thing is that, there was a political party called Herri Batasuna, (HB) or the People United that was viewed as ETAs political surrogate (Douglas et al, 1990, 247). While it is true that the past demonstrated a link between Herri Batasuna and the terrorist band, it does not mean that all the new left Basque nationalist political forces had to. This paper try to examine the legal situation of a new Basque political party called Sortu, giving reasons to advocate for the legalisation of it. It begins with an introduction about the origins of the Basque nationalism, then it is exposed the arguments in favour of the legalisation of Sortu, subsequently the counter-argument is explained; the following part is the refutation of the counter argument and finally the conclusion.

I.I Background

Sabino Arana was the founder of the modern Basque nationalism movement in the last decades of the nineteenth century (Douglas et al, 1990, 243). He thought that the Basque culture was in imminent danger of extinction, due to the increasing immigration from the rest of the country, as well as industrialisation and urbanisation of the area (Douglas et al, 1990, 243). Moreover, during the nineteenth century Basques fought in two wars, the Carlist campaigns against the liberals and against the Spanish government in defence of the regional privileges. In an environment of politically and military defeat it arose the idea that the Basque country should be exclusively the homeland of those who were racially Basque (Douglas et al, 1990, 243). It was nationalism based on ideologically conservative ethnicity. The Basque nationalism history has had its ups and downs. During the Second Republic (19311939) the mainstream Basque Nationalist Party (PNV), inherited from Aranas ideas, was able to contest local and national elections becoming a dominant political forces in municipal and provincial bodies, and a vocal minority within the Spanish Parliament. Nonetheless, the years during Franco dictatorship are characterised by the systematic state suppression of all Basque cultural expression including the use of the language; hence the Basque nationalism party operated in the clandestinely and in the exile. In this context, in 1959 a group of young Basque rebels, exasperated by the situation formed Euskadi Ta Askatasuna (ETA; the translation would be Basque Country and freedom). They proclaimed that the Basque Country was occupied by a foreign power and they called for a campaign of national liberation (Douglas et al, 1990, 244). At this point, it could seem that this group and the Basque Nationalist Party did not have any differences, but Euskadi Ta Askatasuna, not only announced this, but also advocated it: 1) the exclusion of the church from the politics; 2) Rejected race as a basis of Basqueness and substituted this notion for the cultural Basque ideals; and 3) Show a compromise with the workers and their position within the capitalist system, with the aim to create a independent socialist state for Basque (Douglas et al, 1990, 244). In order to carry out this objective, the organisation opted for armed 2

struggle as a guerrilla. The tactics employed by ETA have included bank robberies, kidnappings, intimidation, and exaction of a revolutionary tax, between others (Douglas et al, 1990, 238). The terrorist bands most spectacular accomplishment along these lines during the 1973 assassination of Carrero Blanco, Francos successor in the streets of Madrid (Douglas et al, 1990 246).Despite these victories, ETAs fortunes waxed and waned (Douglas et al, 1990, 246). During the 1960s and 70s, ETA suffered various schisms. The most important one occurred in 1974, when there was a debate about the future tactics of the organization; there was a divide between the two groups. The first one, called ETA poltico- militar (ETApm) and ETA militar (ETAm). The formers advocate for conventional political activity with selective armed action, and the latter favoured continued unrelenting armed resistance as the only avenue toward true national liberation(Douglas et al, 1990, 246). The initial ETA poltico-militar form a political party Euskadiko Eskerra (EE) or the Basque Country Left, dissociates itself from the terrorist band and totally rejects the use of violence. At the same time, another radical political party Herri Batasuna (HB) or the People United appeared in the Basque party system, for many observers it was viewed as ETAs political surrogate (Douglas et al, 1990, 247). In April of 2002 a Spanish Party Law was approved by the Congress and the Senate of Spain. The new Ley Orgnica de Partidos Polticos (LOPP) has thirteen articles, grouped on four chapters. The LOPP has two fundamental objectives: to set out clearly the required democratic standards and to prevent a party from indirectly violating the rights of citizens by promoting racism, violence, and ends and means of terrorist group (Turano, 2003, 732). The article nine is particularly important because it is the key to allowing the declaration of illegality to be made against a party (Turano, 2003, 733). It reiterates the freedom of parties to conduct business; always respecting democratic principles and human rights, and also defines the types of behaviour that will be considered that have violated these principles (Turano, 2003, 733). The extensive detail of the Spanish law is exceptional in the context of this type of legislation, and may find its explanation in the context, in which the law was enacted, the objective was to ban Herri Batasuna 3

(HB)(Navot, 2008, 755). This law allows the governments to ban groups that support violent acts committed by others even though they do not engage in violence themselves. Sortu (means to create in Basque) is a new Basque political party founded in February 2011. The ideology of the party is the Basque nationalist left (izquierda abertzale). The members of this party reject the violence and they condemn the actions made by ETA. However, this announcement is not sufficient enough for the Spanish Supreme Court, whom recently declared Sortu as an illegal party, because they perceived it as a new iteration of Batasuna, ETAs political wing (The Independent, 2011).

II. Arguments for

First of all, trying to find a definition of terrorism is a difficult task. The idea has never reached a consensus. Although, many observers took Kushners definition as the one that it is more general terror is the use of force (violence) against government or civilian population to create fear in order to bring about a political (or social) change (Navot, 2008,752). It seems logical that there must be an armed struggle in order to be able to define a group as a terror organization, indeed there must be actual activity in order to disqualify a party (Navot, 2008, 752). This does not happen in the Spanish case, Sortu has appeared in a context in which there was no activity from the terrorist band Euskadi Ta Askatasuna. Moreover, the members of Sortu have not been involved in any action related with ETA, nor have they been members of Batasuna. In the Spanish Party Law, parties will be considered to have violated democratic principles and human rights when:
giving express or tacit political support to terrorism, and thus legitimizing terrorist actions by seeking to minimize the importance of human rights and their creating a culture of confrontation linked to the actions of seeking to intimidate, deter, neutralize or socially isolate

violations;

terrorist and thereby

anyone who opposes such actions; including regularly in its directing bodies and on its electoral list persons who have been convicted of terrorist crimes and

who have not publicly renounced have not publicly renounced terrorist methods; using an official way symbols, are normally identified with a slogans, or other representational elements that terrorist organization.

(Navot 2008, 755)

The most important fact is that Sortu has explicitly condemned ETAs actions, and they have also advocated for the dissolution of the terrorist band. Sortu meets all the requirements in order to be legalized. Moreover, limitation on citizens right to be elected violate the essence of the democratic regime (Navot, 2008, 745). Democracies are open regimes where the debate and the political game are the fundamental features. The constraint of political freedom, particularly those suppresing the ideology, the platform or the political actions of potential candidates or parties show that certain principles as equality and representation have been overridden. (Navot, 2008, 746) In the wake of this, the banning of a party represents that a sector of the Basque electorate is disenfranchise, which in the case of Sortu, will be between 10 and 15 percent of Basque voters (Ara, 2011).

In addition, the Spanish Party Law was not drawn up as a neutral political action. The majority party with the help of some of the other parties had representation in the political institutions by passing the law, and thus they have abolished another political party. This represents a distortion of the normal competitive relationship between them (Turano, 2003, 753).

Additionally, the law not only claim about terrorism, but the requirements of the Democratic Party structure. This law intended to catch Batasuna, may now train the spotlight on other parties, because it is well known that political Spanish parties despite their democratic origins tend to favour an oligarchic structure (Turano, 2003, 735). It is not entirely desirable to promote a political culture in which parties scrutinize one anothers internal workings with an eye to seeking the dissolution of rivals. 5

Furthermore, there has been no proof that banning a political party will help to defeat terrorism.

III. Counter-argument.

The political parties are essential elements of democracies. They play an important role in capturing the peoples needs and desires. So, extreme care must be given to any decision that includes political parties. As Rubio Llorente points out to ban a political p arty not for reasons that have to do with criminal activities but simply because their end and methods are incompatible with the democracy (Leslie, 2003, 736). The explanation of banning Sortu lays on the roots of the socalled preventive act, meaning that there is no need to wait for the candidate or party to put its goals into effect (Navot, 2008, 753). The Supreme Spanish court has declared Sortu illegal as a prevention of the future events.

IV. Refutation of the counter argument.

Banning a political party as a preventive measure is a direct attack to a democracy. Moreover, taking into consideration that the party clearly states its position on the alleged danger, the terrorism. Sortu should be legalized because it meets all the requirements under the law. Democracy within the rule of law, states that, the law must be enforced. In this case the Spanish court was not entirely objective and has been driven by external issues of the past.

V. Conclusion

Sortu should be legalized because it achieves all the requirements that the Spanish Party Law stipulate. It is clear that the party does not have any connection with the terrorist band. The members are independent people from different sectors of the Basque society who are unrelated to ETA. Moreover, they represent a part of the Basque population, who is identified by the Basque nationalist left.

Democracy it is based on competition between parties. If a judicial institution without any proof is banning one of the elements of the democratic process it could be said that is attempting to go against the regime. This means, that it is distorting the political game.

Furthermore it is to say that declaring a party illegally, would not solve the problems of terrorism that Spain has been suffering from for years. On the contrary, the Spanish Party Law is desperate and probably is an ineffective measure against terrorism; one can only hope that it will not serve to exacerbate the situation (Tureano, 2003,739).

VI. Resources

Gil Calvo, Enrique Sortu El Pas. March 21, 2003 Douglas, William A. And Joseba Zulaika (1990) On the interpretation of Terrorist Violence: ETA and the Basque Political Process. Comparative Studies in Society and History, Vol. 32No 2: 238-257 Lzaro Manuel, El Supremo acuerda ilegalizar Sortu por solo dos votos de diferencia El Pas. March 24, 2011 Ley Orgnica 6/2007 de 27 de junio de Partidos Polticos M. Cerbeiron and Aixpeolea L.R, Sortu se presenta como un nuevo partido democrtico El Pas. Febraury 9, 2011 Navot, Suzie (2008), Fighting Terrorism in the Political Arena: The Banning of Political Parties Party Politics Vol. 14-No.6:745-762 Rubalcalba sobre Sortu: "Ha habido cambios, pero no ha demostrado que ha roto con ETA" El Pas. March 25, 2011 Sortu, alegal per omnipresent, Ara. March 3, 2011 Sortu reclama al Supremo ser legalizada para acabar con la violencia La Vanguardia. March 22, 2011 Towards Peace and legalization The Independent. Febraury 19, 2011 Turano, Leslie (2003) Spain: Banning Political Parties as a Response to Basque Terrorism International Journal of Constitutional Law 730-740