With the referendum of independence Rajoy found at long last the desired opportunity to deal Catalan self-government the final blow by “decapitating” (his term) the Parliament and running it from Madrid. This and no other is the reason why last Thursday, Rajoy refused to stop application of article 155 in exchange for President Puigdemont’s offer to hold regional elections. By refusing to realize then and there the alleged goal of his invocation of article 155 (namely restoring statutory normality), Rajoy and his hard-liner Deputy Prime Minister Soraya Sáenz de Santamaría gave away their real goal. They both saw the conflict as an opportunity to complete their party’s recentralizing mission by seizing not only the Catalan institutions of government but also the public media.

In one fell swoop, they snatched the coveted Catalan system of education. It is not long since Minister of Education José Ignacio Wert proposed a law to “hispanicize” Catalan schoolchildren. Last week’s shrill allegations that Catalan schools teach children to hate Spain previewed the implementation of an education system with the spirit of Wert’s project.

Spanish nationalists are so keen to revert to Franco-era control that they hardly bother to conceal their intentions. On Sunday, Albert Rivera, leader of the ultra-nationalist anti-Catalan party Ciudadanos, exulted that the December snap election gives Spaniards “a once in a lifetime opportunity to put an end to [Catalonian] nationalism.”

The state’s take over of Catalonia proceeds like a well-oiled machine, with the Spanish and a few Catalan media providing the framing and centralist parties the tools to implement an undeclared state of exception. Catalans of all persuasion must navigate between two contending legalities. Officialdom — that is, heads of state, the spokespersons for the EU, the State Department, and the media that echo the directives of realpolitik — describe the contest of wills in sharp tones of legality versus illegality. To put things in such terms is to give short shrift to a complex situation. It is to ignore that laws can be oppressive and not meet with the consent of the governed. Laws, to be effective, must also be legitimate. A constitution obliges only to the extent that it elicits consent. And if its gatekeepers abuse it, they ruin it along with the state that it was meant to support.

To dispute the validity of the referendum on grounds of illegality disregards the fundamental questions of what or who makes a law legitimate.

Secession is not a priori illegitimate, as spokesmen for the status quo mechanically assert. Secession must ride on a wave of popular consent, and consent is at the heart of the narratives for and against the Catalan resolution. To dispute the validity of the referendum on grounds of illegality disregards the fundamental questions of what or who makes a law legitimate, of whether there is a higher law than the law of the state. Does international law, which enshrines the principle of self-determination, trump the right of states to use all necessary means for self-preservation? Is the state coterminous with the territory it is capable of ruling? Does its jurisdiction, its right, cease where its law fails to provide justice and to elicit respect? How does law evolve with ethical demand and supersede itself by mutating to higher levels of freedom?

Unquestionably, the Catalan referendum was contrary to the Spanish constitution. Yet, the October 1 referendum was held according to a law formally passed by the Catalan Parliament. This law is “illegal” only by virtue of being struck by the Constitutional court. This action called into question the principles of democracy, and for Catalans, it delegitimizes the court’s jurisprudence. It is to this court, in fact, that the origin of the present drama must be traced.

In 2006, Rajoy, then leader of the opposition in Congress, dealt a blow to coexistence by attacking the Catalan Statute of Autonomy. After this organic law had been endorsed by Congress and approved by popular referendum, Rajoy mobilized his party to collect signatures “against Catalonia.” Then he impugned the statute at the Constitutional court, a body stuffed with justices appointed by his party, some with expired terms. After four years, the court ruled against the text, striking entire paragraphs and suppressing articles that were admitted in the statutes of other regions. The resulting bill of rights turned out to be more restrictive than the previous one had been. This undignified behavior by the arbiters of the constitution made a mockery of legal process and set the stage for the present standoff.

By abusing this system, the Spanish government has paralyzed the Catalan legislation, reducing autonomous governance to a cosmetic façade.

In 2015 Mariano Rajoy used his majority in Congress to change the Constitutional court from an interpretive body to a penal one, with the blatant intention of giving the court the power to depose the Catalan president. Until then, a president could only be removed by a vote of confidence or though elections. Relying on the courts to execute his decisions, Rajoy made a habit of blocking Catalan legislation and criminalizing his adversaries. In the last few years, the Constitutional court has repealed twenty-five laws passed by the Catalan Parliament: a law barring utilities companies from cancelling service to the poor; a law on gender equality; one on levying a tax on the energy companies; another on taxing the banks; a law to protect the needy from eviction; a law on social security; one against fracking; another to fund the cultural industries, etc. The moment a law is impugned, it is automatically suspended. In Spain it can take years for the court to pass a resolution. By abusing this system, the Spanish government has paralyzed the Catalan legislation, reducing autonomous governance to a cosmetic façade.

For some time, the Spanish government has intentionally smothered Catalan finances, blaming the collateral damage on the alleged misuse of funds by the Catalan administration. In June 2016, former minister of the Interior Jorge Fernández Díaz was heard on tape plotting with Daniel de Alfonso, director of the Anti-Fraud Office of Catalonia, to fabricate corruption reports on Catalan leaders. The false reports were to be leaked to the press, said the minister, to give the state prosecutor a pretext to file charges. A nervous De Alfonso, arguing the success of the “state sewers” activities, was heard saying to the minister: “We have ruined their [the Catalans’) health system, we are busting their Center for Telecommunications and Information Technologies…. I am Spanish before anything else.”

Cultivating scarcity and decapitalizing the Catalan economy are strategies calculated to elicit the very outcome that Rajoy feigns to deplore. In the weeks since October 1, hundreds of companies have transferred their registered offices out of Catalonia. Like a firefighter arsonist, he not only passed a decree to facilitate such removal, but persuaded many to do so in order to create the perception of economic catastrophe. So far, this strategy has only had psychological effect. For the last quarter, unemployment was significantly lower in Catalonia, and it remains considerably below the Spanish average. But psychology is an important factor, and Madrid’s ill-disguised desire to evoke the specter of economic meltdown in Catalonia could end up self-fulfilling.

Former Catalan President Carles Puigdemont speaks. Soon after, Spanish Prime Minister Mariano Rajoy decides to dissolve the Catalan Parliament. Photo by Jack Taylor/Getty Images.

Rajoy’s dissolving the Catalan Parliament and calling for snap elections a few days before Christmas opens an uncertain scenario of conflicting legalities. It is a double-edged challenge. Can the Catalan Republic endure the onslaught of article 155 without commanding its own police and without access to its bank accounts, frozen by Spain’s finance minister? On the other hand, can an imposed, statutorily illegal election be credibly held? How can it even be seriously considered a settlement of the question when the vice-president of the Senate announces that, if pro-independence parties win the election, the Spanish government will invalidate it by re-applying article 155?

If the Spanish government conditions the election to install a government of its liking, how will it govern the region without the consent of the majority of its population? There are obvious dangers to imposition. Social unrest could drive the yield of Spanish bonds to an unsustainable level, pushing the country to the brink of default and opening a bigger gap on the EU’s leaking vessel than it may be able to withstand. It is unlikely that the EU will sit on the fence for long. Although it has come out unmistakably on the side of Madrid, diplomacy may in fact be already underway behind closed doors. There is no other explanation for Rajoy’s soft-pedaling of 155 since last Saturday.

They are the smoking gun of Spain’s regression to the era of political persecution.

One possibility out of the impasse would be for Spain to guarantee a free election, and for the pro-independence parties to participate, possibly turning it into a constituent election. If voters revalidate a majority for independence, this would clear the doubts about the legitimacy of the results of the October 1 referendum, shielding the virtual republic from the charge of insufficient support. But for such a scenario to play out with any semblance of inclusiveness, Rajoy would have to halt the prosecution of the Catalan leaders and release the political prisoners he has held as hostages since October 16. Jordi Sánchez and Jordi Cuixart, pacifist leaders of peaceful demonstrations could not be honestly charged with violent disruption. For this reason, the judge who ordered preventive prison without bail had to turn to the pre-democratic Francoist legislation in order to substantiate her politically motivated decision. Rajoy needed scapegoats, and someone had to pay for his failure to stop the referendum. Amnesty International condemned their arrest and demanded their release. They are the smoking gun of Spain’s regression to the era of political persecution.

One week after the 40th anniversary of the return of President Tarradellas from exile, President Puigdemont, charged with sedition and the threat of a 30-year sentence, left Catalonia today accompanied by members of his cabinet. His current sojourn in Belgium, whose interior minister yesterday suggested the possibility of granting him political asylum, may prove to be a long one. Forty years was roughly the time Tarradellas spent in exile. Could 40 years also mark the end of a historical cycle, with the Spanish regime of 1978 drawing to a close, as political persecution is normalized, the far right spreads violence to the streets, and Spain, as often in the past, sends another wave of Catalans into exile?