Javier Pérez Royo: “Neither the Catalan Statute nor the Spanish Constitution are applicable in Catalonia anymore”

Javier Pérez Royo is Professor of Constitutional Law at the University of Seville, writes a column in El País and is a guest in political debates. He is the go-to Constitution expert in Spain, certainly as far as the media are concerned. After being a member of the Spanish communist party (PCE) and working with the PSOE, he has tried to make a political comeback with Podemos in the elections of December 20. He was supposed to take the third slot in the Seville slate, but had second thoughts.

4 min
Javier Pérez Royo va ser ponent en la redacció de l’Estatut andalús  i assessor del Govern en el de Catalunya de l’any 2006.

Javier Pérez Royo (Seville, 1944) is a minute, hyperactive professor. Shortly before announcing that he intends to have a go at politics, he released “La reforma constitucional inviable” (published by La Catarata) —The Unworkable Constitutional Reform, in English—

He paints a gloomy picture.

Why is a constitutional reform unworkable?

It is unworkable from a political point of view, not so much from a legal standpoint. Other European constitutions require a supermajority, too. It will not undergo a deep reform and that is precisely what jeopardizes it the most: petrification. A reform would tie its original legitimacy to its current exercise and, unless it is changed, unless it is renovated, it will get diluted. We’re stuck in a morass not unlike 1931 with the 1876 Constitution. And back then the system collapsed.

Are the political parties aware of this?

The PSOE is, but the PP refuses to change anything and they will always be in a position to vote against and stop any proposed amendments. The PP is the first great hurdle. And it would not be enough, if they didn’t oppose it. They would also have to lead the alliance for reform and agree on the diagnostic that the situation has become untenable. And if anyone within the PP had any doubts, you’d have Aznar ready to avert all reforms. The PSOE isn’t strong enough and can’t agree on what sort of constitutional reform they want.

Catalonia would seem to be the main problem. After the fiasco with the Catalan Statute, do the PSOE and the PP have any credibility?

The Catalan issue is the most urgent and visible, but not the most important one. The main problem is that the current system does not allow society to express itself, it does not cater to the country’s political complexity. We would have to turn the system upside down and then tackle the matter of Catalonia and Spain’s regional structure. So far, this had been dealt with through the Constitution and the Statute, but this binomial disappeared with the Constitutional Court’s ruling on the Catalan Statute. Catalans no longer accept it. The texts are still there, but they do not apply, as far as a vast majority of Catalans are concerned. We don’t know the way out of this conundrum, but it would probably require a new Constitution that defined the structure of Spain.

One that included the right to decide?

We already have that …

Well, what about Catalonia’s right to secede?

That’s a different matter. Two Constitutions would be needed: one that recognised the right to secede and another for a Spain without Catalonia. It is unreasonable to propose a State that doesn’t exist within a Constitution. If that is what you want, you might as well vote first and then devise a legal framework that fits the result.

Not even Podemos argue for that …

Sure. But logic points in that direction. A reform must be conducted once the unknown is resolved. But this would be extremely protracted. Once you’ve got this far, a referendum is needed and there is no way round it. Anything short of that would be absurd.

I see. So one path is legal yet absurd, whereas the other is logic and illegal, as far as the Constitutional Court is concerned.

Indeed. Still, there is no solution for the Catalan issue but to hold a vote, given that most Catalans no longer perceive the Spanish Constitution as being their own. There is no juridical solution, even though we must find a way out; we just don’t know how. We cannot go back to the old Statute and we cannot draft a new one. A way round the problem would be for everyone to agree on a regional model and build that into the Constitution.

If that were to happen, it would be without the broad-based agreement of 1978, when Catalan separatists were a small minority.

That is the one terrible thing. There is no Constitution in Catalonia and there’s been an evident degradation. They’ve reached the end of the road but it is only now when the PSOE talks about a reform for the first time. I think Ciudadanos will be game. Proposing a reform like that is pointless. You must first agree on the diagnostic: we cannot go on like this and the Constitution must be changed. Once you have agreed on that, then we will see what you can achieve with technical and political work. A consensus must be reached at the end, not to begin with. When the PP insists on an initial consensus, it is denying the reform. To be honest, I can’t see it happening just yet. I believe the current deterioration is here to stay and Catalan separatism is an expression of that.

You paint a gloomy picture …

Well, the Spanish parliament would first have to commit suicide in order to reform itself and I don’t see that they’re willing to do so. The crowning of the new King has not yielded the expected results, as he no longer has the political role that the monarch had. It is a very serious situation and that is why I say that the Second Bourbon Restoration will end up like the first: collapsing. We won’t have a dictatorship, but a much more genuine democracy, as today’s has already accomplished what it was meant to. Its hands are tied and the principle of equality has been tamed.

Will the new emerging left be any different?

Indeed. The left has built up exhaustion, mistakes, decapitalisation … it will all be different. There’s less hope nowadays and we no longer have a clear objective, as joining the EU used to be. I fail to see what shared project we can look forward to, bearing in mind that Catalonia and the Basque Country may choose not to be a part of it.

Was Spain’s regional system a mistake, considering how it was set up?

It was an answer to a problem.

An asymmetrical reality was given a symmetrical answer.

Reality is always like that, even in the US. In a federal country everyone is expected to take on the same spot in the federation. I do not understand why the Constitution should enshrine asymmetries. Everybody is a nation. The question ought to be whether the problem concerns only Catalonia and the Basque Country or has a broader scope.