The former senior lawyer of the Parliament of Catalonia dissects the year of the ‘procés’ in the book ‘No todo vale’Antoni Bayona (Sabadell, 1954) has reflected in the book No Todo Vale (Peninsula) his experience as a senior lawyer of the Parliament of Catalonia in a momentous stage, when the Executive of Carles Puigdemont held the referendum of 1-O and declared independence. Part of the then Govern is now being tried in the Supreme Court for these facts. Bayona himself has been subpoened as a witness in the trial
Did you feel pressured as the senior lawyer of the Parlament during the last legislature?
The secretary general of the Parliament and the senior lawyer have the mission to assist the organs that are the kitchen of the House, the Board of the Parliament and the committee of spokespersons. There is always some pressure. But when arriving at the dimensions that we arrived then, the fact of opting for the unilateral route and disconnecting and overflowing the Constitution left the lawyers in a very delicate position. A kind of clamp was created by all of them. I felt used by everyone, but that goes with the salary.
In your book you posit that the neutrality of the Parliament has been lost. And that even the workers of the Parliament have suffered tensions.
That has happened. And reaching the current level, with preventive prisons, even more. The workers of the Parliament are in an institution that is plural and we should maintain the appearance of neutrality, but there are people who have put the emotions above that. There are situations inside, human relationships have been affected. I have noticed a certain emptiness around. There are people who have not understood that the lawyers made warnings like those of the last legislature, warning of the consequences of not fulfilling the orders of the Constitutional Court. I mention it as an attempt to let the reader know that the environment, beyond politics, where it is already quite tense, has also deteriorated in the parliamentary administration.
“Forcadell was exposed to a series of decisions taken by more people ”
You mention that the pro-independence majority of the Board of Parliament left the former president Carme Forcadell alone, and that they somehow shirked responsibilities to transfer them to her.
I have this perception, and I can deduce it from things that happened. Forcadell was expressly exposed to a series of decisions that a group of people had taken, but in the end they ended up falling individually on her. Decisions that could have been taken by the Government were transferred to the Parliament. And with this system of having to make extensions of the agenda of the plenary sessions to approve laws such as those of transition to the republic or of the referendum, or the conclusions of the commission of the constituent process, it was on Forcadell personally, as president of the Parliament, where such decisions were visualized. And this had to be said in fairness.
You maintain that the independence process has underestimated the law.
Here there have been very notable distortions of reality. An imaginary has been built in Catalonia, as if we were in an authoritarian state, creating a parallel fantasy world. Then, to propose a way of unilateral independence, overflowing and saying it without subtleties as was done in resolution I / XI [the declaration of breakup annulled by the TC], already meant dispensing with a fundamental value of a State, which is the value of the law. And that has not been done in Scotland or any other country.
From the story you build in the book it is clear that the independence leaders acted either with naiveté, or with unconsciousness.
Yes, I would define it with these expressions. It is very difficult for me to understand why they did what they did and I do not have an answer if it is not this: that they acted that way. It has long been known that the right to self-determination recognized in the UN human rights pact is redirected to very extreme situations and Catalonia cannot be included there.
“Catalonia does not have the right to self-determination in international law “
Does Catalonia have no right to self-determination?
No, in international law no. Because international law also protects the integrity of states. And when this pact is made in the 60s it is to end colonial situations or the situation of peoples who are oppressed and have no right to participate. In a democratic state, in which we have autonomy, with our own institutions, where we choose the Spanish parliament … all this has nothing to do with those cases. That’s why I was so surprised that the referendum law was based on the right to self-determination. And now they want to assert it in front of the Supreme Court in the trial. It seems to me a very weak argument.
What happened in Catalonia on October 27? Was it a coup? Nothing happened?
I do not agree with the statements that qualify it as a coup d’etat. Linked to the two laws, what theoretically was done that day, and that was apparently done, because it was the perception that gained the citizenship, that the independence was consummated. However, it seems that its promoters did not want to do it. It was something more rhetorical or political than effective.
Something sufficiently ambiguous was approved to make it appear that independence had been declared, but an independence is not made effective unilaterally if it is not materialized afterwards. The Govern declared the independence of Catalonia and immediately thereafter left for the weekend. And to make independence effective it would have had to bend the will of the State.
“The declaration of independence was the end of a flight forward “
How do you define it?
It is the end of a flight forward. Of so many promises and of creating so many expectations. As people were convinced, no one in the Government dared to put the brakes on the end. It is like an act of final immolation. But this is not so much a problem of judicial responsibility as of political responsibility.
Watching from within the decisions taken by Forcadell and the pro-sovereign members of the Board, would you say that they disobeyed the Constitutional Court?
It is difficult, because it is based on facts, to say that there were no breaches of resolutions of the TC. There were warnings to the Board not to continue on this path, and they continued on this path. This is accredited and occurred several times.
Were Forcadell and the members of the Bureau aware of not complying with these resolutions?
We warned them. When the General Secretary of the Parliament and I found ourselves in this situation, and we saw that there could be a responsibility derived from this situation, you have to say: be careful. And therefore, these warnings are accredited.
In the book you also firmly state that there was no crime of rebellion.
So it is. All the construction included in the statement of charges of Judge Llarena, which focuses on what happened on September 20 and October 1, is difficult to be made to fit into the way the criminal code regulates the rebellion.
What happened there then?
Maybe something happened that is not covered in the penal code. Sometimes something can happen that can go beyond a simple disobedience, because it was more systematic and repeated, but that is not contemplated in the penal code. In criminal law you cannot judge by elevation. With a much greater crime. And here is a major problem in the trial. That also links with the title of the book “No todo vale”. The trial, from the legal point of view, is subjected to a stress test. We will see if it is able to overcome it.
You can not define the independence leaders judged as political prisoners “
Are the independence leaders who are being tried at this time, are they political prisoners?
For me a political prisoner is one who is in prison for expressing and making public her ideas. The concept should not be trivialized. Here there is a difference, and that is that some ideas have been defended and some decisions have been taken as public authorities. And this is an element to consider which makes me think that they cannot be defined as political prisoners.
Which way out do you see to the current situation?
We have to do a reset. It cannot be proposed to the government of Madrid, as it was proposed to Pedro Sánchez: “my conditions are referendum, international mediation, self-determination and freedom of the prisoners”. Man, this is clearly something the other side cannot take. We should do a turn of moderation, at least as a temporary solution. To look for an accommodation, because the constitutional framework is sufficiently open. Let things deflate a bit, and then we’ll see. It would also be necessary to find a way to make a consultation, because there is a significant social demand in favor of independence and a referendum would be justified. The first thing we should do is give ourselves a truce.
Do you fear that the publication of this book may compromise your neutrality as a lawyer of the Parliament?
It’s something I’ve reflected on and I’ve concluded that I do not. Because the lawyers of the Parliament work for the whole institution. By definition we are not lawyers of the majority, we are of an institution that is plural. And I know how to differentiate between my opinion and my professional duty. I would not have written it if I were a senior lawyer, but now I’m a normal lawyer, and after all I’m just talking about what happened, about the story.
Are you in favor of independence?
After the sentence of the Statute it seemed to me that the way of independence was logical and possible because a door had been closed, the Statute’s ruling was very belligerent and deliberately closed many doors that were open in the Constitution. I believed in the independence project and we could say that I could be pro-independence. But when I see that this takes place in a way that I do not consider correct, since I see that the unilateral path would lead to failure, I emotionally disconnect. My pro-independence mood is currently in the freezer. Not discarded, but I cannot associate it with a way of doing and with actors with whom I do not feel identified.