Saturday, December 29, 2012

Why Spain is not Federal: the regional model of the Spanish Constitution of 1978

Freedom is not dear because it is rare but rare because it has to be won.
Joan Salvat-Papasseit, Mots propis (Proper Words) 1919
«Always» is a word that has no value in history, and thus has no value in politics.
Manuel Azaña, Defensa de la autonomía de Cataluña (Defence of the autonomy of Catalonia) 1932


Spain has revealed a whole panoply of incomplete majority and minority nation-building processes during the contemporary historical period. The construction of an inclusive, legitimate notion of the Spanish nation has never been a satisfactory outcome of Spanish nationalism for the minority nations (Catalonia, the Basque Country and, to a lesser extent, Galicia). On the other hand, Catalan and Basque nationalism have not yet been able to consolidate their own processes of nation-building based on federal structures or on their own states. Up until the post-Franco era, the Spanish territorial model was based on the French model: two levels of administration, central and municipal powers, the latter with a very small degree of autonomy, articulated on a highly centralised conception of the state. All attempts at articulating the Spanish state based on «regionalised» premises, even if moderate, have historically failed for several reasons: the First Republic (1873), the Mancomunitats (Commonwealths) of the Restoration period at the beginning of the 20th century, and the «integral» state of the SecondRepublic (1931-1939).

After the protracted period of the Franco dictatorship (1939-1975), the territorial model established by the 1978 Constitution has evolved under contextual conditions that were very different from those that had come before. Firstly, Spain has turned from an authoritarian state into a liberal-democracy; secondly, a welfare state has been built up –although with deficiencies; and third, a process of European integration has been completed (Spain joined the Common Market in 1986). In internal territorial terms, the novelty was what is known as «The State of the Autonomies», a new model which established a series of “Autonomous Communities” through a process of variable geometry which has determined the configuration of a series of self-governing regions, almost non-existent in contemporary history.

Even though the Spanish model has sometimes been classified in comparative analyses within the group of «federal» states, there are several reasons for classifying it rather in the group of «regional» states. It is not even an «incomplete federation», nor a federal state lacking «shared government». Indeed, even today the very term “federal” raises frontal opposition and suspicions of certain political parties in Spain –in the name of “national” unitarianism– by the traditional right (linked in the past to Catholicism and the monarchy, and now to centre-right and right-wing organisations), or in the name of a homogenising unitarianism of a liberal or socialist character associated with “Jacobinism” present in certain currents within the Spanish left (fundamentally in the Socialist sphere). In contrast with other historical disputes which have been more or less overcome –the contention between monarchy and republic, the religious issue, economic and social development, the modernisation of the state and society, the process of internationalisation– almost thirty years after the restoration of democracy, the only issue that has not been politically resolved is still the “historical” dispute of the territorial model associated with the plurinational character of the state.

It is easy to see that the “State of the Autonomies” implies an atypical, somewhat eclectic materialisation within comparative politics. Among the principles explicitly recognised in the Preliminary Title of the Spanish Constitution of 1978 are those of Unity, Autonomy and Solidarity. In fact, the State of the Autonomies should rather be considered a state with a certain degree of political decentralisation that shares one element with federations: the decentralisation has been designed for all the territorial subunits (autonomous communities) and not just for some (the total number of territories that enjoy political autonomy is guaranteed by the constitution –17 autonomous communities, plus two cities in the North of Africa, Ceuta and Melilla– the sum of which is equivalent to the territory of the state).

Among the elements that differentiate the Spanish territorial model from those of classic democratic federations are the following:

  • Constituent units. The autonomous communities (ACs) are not constituent units. The Spanish Constitution establishes the «indissoluble unity of the Spanish Nation» (art. 2), while the «Spanish people» is established as the unique subject of «national sovereignty» (art. 1). In fact, some of the ACs did not even exist as differentiated entities before the political process countenanced by the Constitution of 1978.
  • Division of powers. The decentralisation of legislative power has been established in ambiguous terms. Central power maintains its hegemony through the basic laws and the organic laws, which apply throughout the state, and which were developed in a centralised manner in many areas during the period of constitutional development (education, local administration, civil service, universities, election law, etc.). Overlapping central and autonomous regulations are to be found in most legal areas, even where the Statutes of Autonomy define them as exclusive to the ACs. Indeed, the ACs cannot decide on the entirety of their policies in any area of government.
  • The judiciary. Unlike in the legislative and executive powers, the state of the autonomies has hardly had any implications concerning structure and function of the judiciary, which basically adheres to parameters of a centralised state. The reform of certain statutes of autonomy, primarily that of Catalonia (2006), has had little incidence on any possible general federalisation of this power of state.
  • The Constitutional Tribunal. This is not an organ of central power, but is an organ of state. However, the ACs do not take any part in the designation of its judges, who are appointed by the central parliament (Congress and Senate), the central judiciary and the central government. And this despite one of the tribunal's fundamental functions, that of hearing conflicts of competence between the central power and the ACs, as well as settling issues of constitutionality of laws.
  • The Senate and intergovernmental relations. The upper chamber is not linked to the ACs. The greater part of the senators is elected by «provinces», a body of administrative divisions whose origin is to be found in the first half of the 19th century. There is no case whatsoever for considering the Senate in its constitutional definition as a “chamber of territorial representation”. It is not. Nor are there any effective procedures to regulate intergovernmental relations present in most federations. Most inter-territorial commissions, when there are any, have had very little influence upon the political system of the autonomies.
  • Taxation and the financing model. The state of the autonomies is also far from complying to models of fiscal federalism offered by comparative politics. Most tax is collected by the central government which then returns a certain proportion to the ACs according to the competencies they administer, based upon an inequitable, opaque model insofar as resource assignation is concerned. It is an unstable model which generates comparative grievances as it provokes fiscal deficits (i.e. imbalances between tax collected in a region and the investment then received in infrastructures, services, etc.) in the order of 7%-10% of GDP in certain ACs (Catalonia, Balearic Islands, Valencia). It also violates the principle of ordinality amongst the ACs before and after transferences. The Basque Country and Navarre are the exception to the rule, as they enjoy an asymmetric fiscal arrangement (known as the economic compact) with the central government, based on the so-called «historical rights» of pre-constitutional origin. This compact is even regulated by premises which should be considered confederal rather than federal. Through this «economic compact», these two ACs collect taxes and then transfer a determined amount to central government for the services provided to these ACs.
  • The European Union. The ACs are not considered political players in the European Union's main institutions and decision making processes, unlike common practice for federations in the EU (particularly Belgium, and to a lesser extent, Germany and Austria). The central government has always ensured the ACs do not have any relevant role concerning European affairs. The ACs do not even constitute electoral districts in the European parliament elections (single constituency for the whole state).
  • Constitutional reform. The ACs do not participate in the process of constitutional reform. This capacity pertains exclusively to the central parliament (Cortes Generales) and, where pertinent, to the citizens of the state via referendum.

The general conclusion is that the state of the autonomies lacks the greater part of the institutional and procedural elements that usually characterise federations, as described above. Indeed, the Constitution of 1978 included more potentially asymmetric elements than genuinely federal ones. However, most of these asymmetric elements have been little developed in legislative and political post-constitutional practice. The practical characteristics of the model have been developed largely from a regionalist perspective, which has evolved towards asymmetric parameters. 
However, as is the case with other plurinational democracies, the most important objective to be resolved by the Spanish territorial model is very different from mere decentralisation: the recognition of and the political accommodation for an internally diverse reality in national terms. It may be said that the major defect of the current constitutional design of the state of the autonomies is that it attempts to solve two different issues at the same time with a single set of territorial regulatory techniques: decentralisation of a state, and the accommodation for its plurinational character. This mix of perspectives presides the current territorial model, compounding the confusion, even in the terminology of the constitutional text, between the state and one of its territorial powers, central power. This has been, and still is in the Constitution of 1978, an unresolved issue throughout the contemporary history of Spain. Indeed, it is the major pending issue for the Spanish political system.
Read this article in German, French, Spanish and Italian.

Ferran Requejo
Full Professor of Political Science
Universitat Pompeu Fabra, Barcelona

1 comentaris:

  • Rafael Segura says:
    December 30, 2012 at 9:41 AM

    The Spanish top rank have always tended more to be big landowner and rentier than entrepreneurial.The basque and catalan burgeoisie are the exception.

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