Javier Pérez Royo is a Professor of Constitutional Law at the University of Seville, where he was born in 1944, and a political commentator. In 2007 he was awarded the Blanquerna Prize, awarded by Catalonia’s Generalitat government, when he warned of the risks of “disaffection.” In 2010, he was one of the few jurists who warned of the consequences that the ruling of the Constitutional Court paring down Catalonia’s Estatut or basic law —which he described as a “coup d'état”— would have for the Spanish political system. From his position of independent opinion, Pérez Royo believes that, as a result of that decision, a referendum for the Catalans to decide whether they want to continue in Spain is now “unavoidable.”
The Chief Public Prosecutor of Catalonia has filed a complaint, the second, against the Speaker of the Catalan Parliament, Carme Forcadell, and three members of the Bureau for allowing a vote on the referendum. However, it has excluded a fourth member, Joan-Josep Nuet, because of his political background, in favour of the right to decide but against independence. How do you read that from a legal standpoint?
Politically, it is very easy to understand. They want to divide those who are in favour of independence and those against. They don’t put him in the same boat because we’re talking about criminal prosecution. If they extend the scope of criminal persecution, the turf will become very complicated for them. They have limited it those who defend independence, but if they go for Podemos —the new Spanish left— the risk of the operation getting out of hand for them is much greater. They are doubly prejudiced: the defendants are told, “You are what you are [pro-independence] and I am going for you”, and Nuet is exonerated of responsibility: “You have done this but you didn’t know what you were doing”...
So where does the Law stand?
[Spanish Prime Minister Rajoy’s] Government has stubbornly made this a legal issue, but this is a political problem and it’s politics that’s in play here. And what they are doing is playing politics via the Constitutional Court and the Public Prosecutor's Office. They have decided that this is a territory that is out of bounds: the Constitution is what it is, and whoever goes just one step beyond is sent to the Constitutional Court or the Office of the Public Prosecutor, and that’s it. Full stop. That’s the strategy and that’s what we’ve had since the 2010 sentence [against the Estatut].
The Government plays politics via the Constitutional Court and the Public Prosecutor's Office
Are people being persecuted as if they had by dint of being in favour of independence committed a thought crime?
Let’s see. Thought crime it isn’t. In the interpretation made by the Constitutional Court, what is being pursued is disobedience. There is a court order, which is made expressly as the Constitutional Court now sends the orders so that it cannot be said that they haven’t been served [as defendants alleged in the first trial for the non-binding ballot of November 9th, known as 9-N]. There is a prerogative writ to stop it. That is what is being done. It is an infernal logic. For both sides. One side says: “I'm going ahead as if there were no Constitutional Court”; And the other says: “I'm going ahead because the Constitution does not allow it.”
The collision is taking place in court. The first 9-N trial has already been held, at the Superior Court of Justice of Catalonia, against former President Artur Mas and his Ministers Joana Ortega and Irene Rigau. This Monday, the second will be held against Congressman Francesc Homs at the Supreme Court in Madrid. Where are we going with this?
I published an article in the newspaper El País —when they were still willing to publish my articles in El Pais (he laughs)— where I said that in the issue of the 9-N ballot there had been no disobedience, on the contrary, that Artur Mas had obeyed. First he wanted to call a referendum; He then got a law for non-binding ballots passed which they declared unconstitutional because they considered that it was a covert referendum, conflicting with the authority of the State; He called the ballot anyway and then when the Constitutional Court writ came he called it off. Which is why there was no formal call, no electoral commission, etc, but it was transformed into a participatory process. So what President Mas and the Generalitat did was obey the order and call the ballot off, and then organise a protest and summon the citizens to the protest. I believe that this has constitutional coverage. It was as if a rally had been organised, but with cardboard ballot boxes. An act of protest: 'I have not convened the ballot but I should be able to convene it, and I call the citizens to say whether they agree with me or not.' Consequently, for me there was no offence, but the exercise of a fundamental right. Consequently, I believe that this (the trials) is the criminalisation of the exercise of a fundamental right.
The 9-N trials are the criminalisation of a fundamental right
What do you think the verdict will be, in both trials?
I think they must be giving it a lot of thought. And if they can find something so as not to condemn them, by means of some legal ruse... Perhaps basing their findings on very strict legal foundations, saying that it was an outrage, but lenient in the sentencing... In the end, this is no longer a legal assessment, it is political: 'what is it that interests us most right now?' The thing is, neither the government nor the prosecutor will make the assessment, but rather those who are to pass the verdict [the judges].
In other words: political verdicts for political trials?
Unavoidably, the sentence must be political. What is going on here is that everyone has taken political time out: the Government, the Prosecutor, the judges...
Everyone has taken political time out: the Government, the Prosecutor, the judges...
So, is the solution to the conflict between Catalonia and Spain the referendum demanded by the majority in the Catalan Parliament?
My impression is that a referendum is a bad solution for this kind of problem. That is why things must be done in such a way as to avoid a referendum. The snag is when a situation like the one Catalonia has reached, in which the referendum is already inevitable. The true integration of Catalonia into Spain, democratically, requires the citizens of Catalonia to say through a referendum whether they want to integrate or not. This should have been avoided.
How have we come to this?
The Constitution and the whole mechanism of integration through the Estatut or Basic Law for Autonomy were developed to avoid this, but the 2010 ruling of the Constitutional Court demolished that. The pact between the two [Spanish and Catalan] parliaments, approved by the citizens the pact addressed, was demolished. This is the territorial Constitution, not the articles: the pact between the Parliament of Catalonia and the Cortes Generales [the Spanish parliament] endorsed by the citizens. The finding overruled the pact between the two parliaments and took the final say from the citizens of Catalonia. After the sentence, the Constitution was wrecked because the territorial Constitution no longer exists. There is no longer a constitutional bloc. We are faced with a constituent issue, with the additional problem that the formula that was used in 1978 is no longer valid, because the sentence wrecked it. It will be necessary to come up with something new.
We are faced with a constituent problem and the 1978 formula is no longer valid
Where do you think we should start? It doesn’t look like the Spanish Government is willing...
The starting point now, the first step, has to be the referendum, but no longer for ratification of a pact [such as that of the Estatut], but the expression of the will of the citizens of Catalonia, in the end, whether to continue in [the State] and we will see under what conditions. I imagine that it will be almost impossible not to. And while this is not recognised we will be where we are, in political and legal disorder, in Catalonia and the State. All this dancing from one election to another in Catalonia since 2011, and that is no happening in the rest of Spain...
Spain cannot be governed democratically without Catalonia
In what way?
Spain cannot be governed democratically without Catalonia. We are without a Constitution, whatever the Government, the Socialist Party to a certain extent, and Ciudadanos say. But right now the problem is that the Constitution no longer offers a solution to the issue of the integration of Catalonia.
Don’t you think a reform of the Constitution would solve the problem either?
No. There will be no reform. With the Partido Popular there’s no way, and with the scenario there is now it would be almost impossible to reach a consensus. This has to stop at some point.
Stop the clock and get talking...
Of course. The situation is a bit dramatic. Everything is really broken down. It is about sharing the question of whether there is any kind of solution, for Catalonia to integrate into Spain. The position of the government of the nation, ‘keeping the Catalans with the Estatut just as it is, and the Constitution as it is, and give them a bit more investment...’ just won’t work any longer.
There will be no reform of the Constitution. With PP there’s no way
There have been some conversations with Moncloa [the Spanish PM’s residence] recently. [Catalan President] Puigdemont proposed an agreement with Rajoy on the referendum, the question, the date...
We are in a muddle, and I don’t know how we will come to an orderly situation. The wreck is huge. It took a lot of work to do what was done in ‘78, getting it to function for thirty years, a statutory reform that complied with the Constitution and the Estatut scrupulously and, suddenly, all this was thrown out the window...
The verdict on the Estatut was a coup d'etat and the governing PP doesn’t know how to deal with it
What do you think was the aim of the ruling on the Estatut?
Right now I think they regret it. They didn’t believe there would be the reaction that there has been in Catalonia. Politically, it was a coup d’etat: they liquidated the Socialist Party and they’ve done away with Catalan nationalism, which was the predominant majority. The two parties that had worked out the reform of the Estatut were dismantled and this was the antechamber for them [the PP] to achieve absolute majority in 2011, in all the autonomous regions in May and again in November, in the general elections. They thought they would put it all in order, but what happened is that in a coup d’etat you know how it starts but not how it turns out. And they can’t get out. They don’t know how to manage the coup they committed. Formally, it was a ruling, but materially it was a coup. They used the Constitutional Court to enforce the Constitution. And now they don’t know how to manage the coup.
In democracy, the Spanish political system cannot impose the ‘I’m the boss here’ method in Catalonia. That was what General Franco did with a civil war
The PP government says there will be no referendum. Do you think that finally Catalonia will secede from Spain?
I had always thought that independence was a kind of mirage, but the general climate in which we are now is that of disintegration. When the Constitution was drafted it was the moment of the Helsinki summit, of the integrity of the territorial boundaries established in Europe after the Second World War. You couldn’t shift even a leaf, anywhere, whether in Catalonia or in the Basque Country. What would have happened if the Constitution had been made after the fall of the Berlin Wall, with the disintegration of the Soviet empire or Yugoslavia? We now have Brexit, and if there is disintegration of territorial units of the European Union, we will see what happens. The times are totally different. What is happening in Catalonia is something that should have been foreseen, in a worst-case scenario, considering you couldn’t play around because Spain is at a tremendous risk of territorial breakup. But no, they opted for ‘I will win the elections and I will put [former PM] Zapatero on the scrap heap, along with Convergència [the Catalan nationalists], I will put all of them on the defensive and I will impose an ‘I’m the boss here’ attitude. But no, General Franco did that with a civil war, but without civil war you cannot do that, they’re not strong enough. The Spanish political system is not able to impose this on Catalonia if it is not by war, in democracy it cannot be done.