Pérez Royo: ‘The agreed-upon referendum is nearly inevitable’

Date: 14.12.2016

Author: Josep Casulleras

Source: Vilaweb English


The professor of constitutional law believes that the Spanish constitution will not be reformed, and that Spain may be nearing the end of its ‘second Restoration’

Javier Pérez Royo is one of the most regarded analysts of Spain’s political landscape. A professor of constitutional law at the University of Seville, he was a member of the Spanish socialist party (PSOE) for many years, and is now closer to Podemos. Pérez Royo believes that the crisis of the Spanish political system has reached a dead end, that constitutional reform is not possible, and that the only remaining option for Catalonia is to hold a referendum, with ground rules agreed upon by the Catalan and Spanish governments.

—You say reforming the Spanish constitution is not a possibility. Why?
—It’s completely necessary, but it will not be done. Constitutional reform is the foundation of the democratic state. If you remove the option of constitutional reform, the entire building collapses. And to be unwilling to implement constitutional reform is a pathology, and this is what is happening in Spain; it is a very serious pathology. In all other democratic countries in the European Union, constitutions are reformed, because states are democratic. Spain is the only country where this does not happen.

—Why has it not been reformed?
—It certainly isn’t for legal reasons, but political reasons. Mark my words: there will be no constitutional reform in Spain. And we may be playing with fire, because constitutions that are not reformed end up going up in flames.

—What do you mean by ‘going up in flames’?
—We have, for example, the experience of the first Restoration, with the constitution of 1876; since the beginning of the twentieth century, there has been constant debate in Spain about the need to reform that constitution, because it has run its course and no longer serves us . . . But the constitution was never reformed.

—And the Republic came.
—Yes, the municipal elections of April 14 came around and the political system set forth by that constitution collapsed. Spain went to bed monarchical and woke up Republican.

—Are you saying something like that could happen now?
—History is never repeated in the same terms. But, mutatis mutandis, the same is happening in the second restoration as in the first: the political system’s inability to renew itself through constitutional reform. What constitutional reform accomplishes is linking its initial or stated legitimacy with a de facto or actual legitimacy. Original legitimacy fades as time passes, it loses power. That is why reform is necessary, you lose legitimacy otherwise. And Spain has a formidable dearth of political legitimacy.

—Is the situation in Catalonia one of the first symptoms of the implosion you predict?
—The so-called Catalan process is Spain’s great constitutional challenge. In Catalonia, the constitution has been hollowed out. The substantive constitution that has been created in Spain, little by little, by means of the statutes of autonomy, and everything that has built upon the 1978 constitution, no longer exists in Catalonia.

—Is this because of the 2010 ruling on Catalonia’s statute of autonomy?
—Yes, the sentence was a neutron bomb: it left the walls of the building intact but annihilated any life inside. In Catalonia, the constitution and statute exist as regulations, but they are not accepted by the people. Without citizen adherence, the constitution and statute are useless. There is no constitution in Catalonia. And, since the ruling, Catalonia has been in a terrible state of political disarray. The rest of Spain reacted with joy, celebrating the infighting among separatist ranks. But that disorder was only the prologue to Spain’s disorder. Spain will remain ungovernable until Catalonia can be governed.

—But political actions in Catalonia can result in the dissolution of Spain.
—Many things can happen, yes. There could also be a suspension of Catalonia’s autonomy, which would be almost inconceivable, because this is not 1934. The Catalan government then and today are completely different animals. Back then, it was nothing, it was only two and a half years old. But today . . .

—De facto, it has already been taken over by the central government.
—Yes, like most governments, for economic reasons. The entire country is in de facto administration. Because in the end, without money there is no state, and now you have to present your accounts to Brussels. But this is nothing more than a situation of economic dependence on the European Union.

—Do you think the Spanish government will intervene if the Catalan government calls the September 2017 referendum?
—I think it will. But I don’t think this referendum can be held. You can’t hold a referendum while there is an open confrontation with the central government because the necessary conditions would not be in place. It would almost be like the unofficial referendum of 9 November 2014, again. A confrontation would reduce participation. And it would not be legally viable, it would be challenged in the constitutional court, which would then rule that it cannot be held. Then it would be illegal, and there would be criminal cases brought against those who called it. The whole thing would be something terrible, because the local police, the Catalan police, would be ordered to prevent it from taking place. It would be a breaking point. I don’t know if it will come to that, to tell you the truth.

—But independence has its path laid out for it.
—And I can’t see the separatists backtracking, but neither do I think the Spanish government will. The perspective of the train crash is a terrible one, but no one can see how it can be avoided. A process has been set in motion that nobody controls.

—What about international mediation?
—It won’t happen. No one has the legitimacy to act in this capacity, and the EU will never get involved. After all, it is not just the Spanish state that can say it has this problem. It is seen as an internal problem, and the message will be, ‘sort it out among yourselves’.

—If constitutional reform is not carried out, and a unilateral referendum isn’t feasible, nor international mediation, what then?
—The problem in Catalonia is constitutional in nature, and we have been left without a constitution or a statute in Catalonia, given that citizens reject the statute resulting from the constitutional court’s ruling. So now, what? We have exhausted the integration route, of Catalonia within Spain via the constitution. What is the way forward? I don’t know. Theoretically, it is constitutional reform. The Spanish constitution laid the foundation for the construction of autonomous states, which were not defined, but which were made possible by means of the statutes of autonomy. But that formula is no longer useful in Catalonia, because no one is going to say to the Catalan people ‘go ahead and draft a statute’. The Catalan people no longer accept this.

—You haven’t mentioned any alternative to independence.
—The only alternative would be a new, genuinely federal constitution.

—But there is no political will to do this, you say.
—No, there isn’t. And there will be no reform of the constitution. It will not be reformed at all. Rajoy has made it clear. They want people to content themselves with a funding reform. But what reform are we speaking of, if right now we cannot even agree on financing for Catalonia?

—So there is no possible alternative to independence.
—Not right now. I don’t think anyone will be able to come up with one. I don’t know how we will get out of this situation. The ideal solution would be to revise the constitution to create a federal state where all of us could have a say. But in practice this is science fiction.

—Is the integration of Catalonia within Spain impossible?
—The Spanish government says that it is already integrated, that it already has its statute of autonomy. How will we move forward? I do not know, I don’t think anybody knows. We are in a phase that is more political than legal, a phase of trial and error on the part of the separatists, to see what solutions there are, and the other side is simply waiting for the pro-independence movement to deflate.

—Would Spanish public opinion accept a referendum in Catalonia?
—I don’t know. At the moment, given how it has expressed itself at the ballot box, no. The governing coalition formed by the PSOE, the PP and Ciudadanos does not accept it. The referendum is a red line. If the referendum had not been an issue, we would have had a government in December and the elections would not have had to be repeated. We have had to hold elections again because of Catalonia. That was the only reason. The constitution is based on a balance between the centre-right and the centre-left, arbitrated by the nationalists. This is the Spanish constitution, and it continues to exist as such: there is a tie between PSOE and Podemos, on the one hand, and PP and Ciudadanos, on the other. Who mediates here? Catalan and Basque nationalism. Since these nationalist factions are unable to fulfil their role because of the referendum, there is an impasse. Nationalist parties have always acted as mediators, with the UCD, as with the PSOE and the PP, and Spanish society has always accepted this. What Spanish society cannot understand is for the PSOE to enable the PP to govern.

—The PSOE had to choose between the referendum or an agreement with the PP.
—There was no real choice for the PSOE. If it had chosen a referendum, the party would have fractured.

—It has already fractured after the pact with the PP.
—But it is a rupture that can be reabsorbed; in the other scenario there would have been a definite fracture.

— Spain, ‘better red than broken’, as they say.
—Spain has a great constitutional problem: the Basque Country and Catalonia. This was already the case when the constitution was drafted, and for this reason, the legal challenge against Catalonia’s statue, and the constitutional court’s ruling afterwards, was an outrage. Not a problem, they said. Well, look, we have torn apart the constitution that organized the territory, and now anything can happen. I don’t know how this can be righted. What will Soraya Sáenz de Santamaría offer to the nationalists? A little money, something else to sweeten the deal? And in Catalonia, you continue to move forward, with the same constitution and the same statute. Will what they have to offer be acceptable to Catalonia? I don’t think so. And otherwise, the only thing to do is to put everything on the table and undertake a complete, federal, reform of the constitution. But would Catalonia accept such a state model?

—This option might never be on the table.
—Of course. That is why there needs to be a referendum. Unfortunately, the time has come for a referendum to decide on Catalonia’s integration in Spain.

—Is the referendum that the Catalan government is planning for next September good enough?
—No. It should be a referendum held only in Catalonia, but with an agreement between the central government and the Catalan government, as was done in Scotland. Let the people of Catalonia decide whether they want to remain in Spain or leave and become an independent state.

—But it is a question of sovereignty: neither PP nor PSOE accept the sovereignty of the Catalan people.
—The problem is that the only solution is for Spain to call the referendum. This can be accomplished by granting the Catalan government the power to dictate the terms under which the vote would be held. Like in Scotland. It can be done. And given the context, it is almost inevitable, if we indeed want to solve the problem. And the model for Catalonia’s integration in Spain should have already been negotiated, in case this turned out to be the winning option. But at this point this is merely a wish list.

—Is the end of the two-party system in Spain real?
—The two-party system is not over. The only way to form a government is for the PP and PSOE to come together. Voters have rejected the alternating between one party and the other, so now they must govern together. The two-party system that has govern the country still exists: there is a de facto coalition between the two parties.

—Does this spell the beginning of the end for the PSOE?
—It may be the beginning of the end for the entire political system in Spain. The PSOE is not just any piece in the system, it has been the key piece in the organization of the Spanish political system. During the eighties, the Socialist Party was practically the whole of the Spanish political system. The PSOE, together with CiU, held up the system all those years. The PSOE is not Podemos, it is not a minor player, it was pivotal.

—What will happen if the PSOE crumbles?
—I don’t know. It would be an earthquake, and we would have to see how the tectonic plates settle. The crisis is of such magnitude that one cannot foresee what will come afterwards.

—Is it too late for the PSOE?
—The PSOE is the only party with a hundred and forty year history, and it merits our respect. It is the only one that has been around, in contemporary Spain, since the Sexenio Revolucionario of 1869-1874. All the other parties have come and gone, and that must mean something. I think the PP will disappear before the PSOE does.

—Because the PP has corruption in its very foundation, it is not something accidental. Therefore, it is mined from within. Right now it’s in power and it seems strong. But any setback would cause the PP to disappear. It can be re-founded, though, the Spanish right rebuilds easily: the UCD disappeared and the PP appeared. This would not necessarily happen with the PSOE.

—In the last elections, the PP was mired in corruption cases, yet it still gained support.
—But now they must govern with the PSOE. And the socialists can reach agreements with one side or the other, they are centrists. The PSOE is in an extraordinarily weak position, true, and it is doomed to remain thus until the Catalan problem is resolved. What weakens the PSOE is the territorial problem. The territorial factor was what strengthened it when it was not a problem, but now it is a problem. The Catalan question weakens it.

—Catalonia is a problem for the PSOE because the socialists feel threatened by the PP?
—No, because the PSOE is the socialist party in Spain and also in Catalonia. And when the problem in Catalonia takes on the shape it has now, it is a tragedy for the PSOE. Remember that the PSOE is the party of José Bono, Susana Diaz, Alfonso Guerra . . . who are more pro-Spain than anyone. The consensus between the Spanish (PSOE) and Catalan (PSC) branches of the socialist party, forged at the beginning of the transition, was the source of the PSOE’s strength, and it is what has now been broken. The PSOE, without the PSC cannot be what it is now, and vice versa. In contrast, the PP has no need to be a governing or prominent Catalan party to govern in Spain.

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