Plurinational State, federal or confederal State and asymmetric federalism are some of the terms most invoked in the historical territorial claims of Basque Country and Catalonia since the constituent process of the autonomous communities was formalized, in the early 80s, under the protection of the 1978 Constitution.
All attempts to advance the territorial model have, until now, been resounding failures, with the processes in 2017 as a paradigm: from the unbreakable federalism of the Catalan socialists, with the expression “nation of nations” to define Spain, raised by the former president Pasqual Maragallto the confederal State that advocated Ibarretxe plan with the objective of self-determination of Euskadi to be a free associated State.
The negotiations for the next investiture of Pedro Sánchez may open a new opportunity for the desires for greater self-government of many Catalans and Basques, who believe that a new model of relationship with the Spanish State would result in broad self-government.
The Urkullu plan for Euskadi, Galicia and Catalonia
This is what Lehendakari Íñigo Urkullu has stated in recent weeks, calling for a “constitutional convention” to update the historical rights of the Basque Country contemplated in the Spanish Constitution itself. The key to what Urkullu advocates is that without touching the Magna Carta, progress can be made in decentralization and towards federalism.
For the Lehendakari, the time has come to address an “interpretation” of the Constitution, without the need to reform it, to move towards a “plurinational Spain”; an interpretation that would affect not only Euskadi, but also Galicia and Catalonia so that they are recognized as a nation with “the capacity to decide.”
Urkullu proposes a period of one year for said convention to be formed. The “updating” of the territorial model requested by the Lehendakari makes the “loyalty” of the two parties essential, that is, of the Spanish State and the historical communities, as a kind of constitutional pact.
For Eva Saenzprofessor of Constitutional Law at the University of Zaragoza, what Íñigo Urkullu proposes could be interpreted as “a confederation of States that would be governed by an international treaty and not by a constitution.”
Xavier Arbos, professor of Constitutional Law at the University of Barcelona, sees little “constitutional viability” in Urkullu’s proposal. “Proposing a constitutional convention is equivalent to proposing a forum from which a reform of the Constitution that is legally binding emerges.”
“If we talk about a constitutional convention, it is this and that constitutional reform that Mr. Urkullu seems to propose refers above all to the interpretation of the Constitution, a type of agreement that would arise to find common formulas between the State and some autonomous communities on the interpretation of certain precepts of the Constitution,” he adds.
The last word is from the Constitutional Court
Urukullu outlined his plan in an article published in The country on August 31, where he refers to the figure of the “constitutional convention” as a resource used in Anglo-Saxon political culture and for its application in Spain “there would be no express impediment,” according to the Lehendakari.
However, for Xavier ArbosUrkullu’s proposal forgets that “the interpretation of the Constitution depends on the Constitutional Court (TC), and that, even if an agreement is reached with one or many autonomous communities, that agreement cannot prevail over the interpretation of the Constitutional Court” , says the professor.
The interpretation that has been made until now by the constitutional Court Regarding the territorial model, it recognizes Spain as an autonomous State and as a nation only the Spanish one, although it believes that “legitimate”, in the democratic order, the invocation as a nation refers to a “national community in an ideological, historical or cultural sense” but as long as it does not appear as such in a constitutional legal context.
This is stated in the 2010 ruling on the Catalan Statute of 2006, which was declared constitutional except in 14 of its articles. The expression “Catalan nation” appears in the preamble of the statute and not in the articles, so it has no legal scope, according to the Constitutional Court.
A territorial model without a name
What does the Spanish constitution about the territorial organization of Spain? “The State is organized territorially in municipalities, in provinces and in the Autonomous Communities that are constituted. All of these entities enjoy autonomy to manage their respective interests (article 137).”
In the successive chapters of Title VIII of the Magna Carta, the rights of local and regional corporations are developed, as well as the powers of the communities, which “may be expanded”, after reform of the statute of autonomy, within the framework of the powers not expressly attributed to the State, says the Constitution, which does not qualify the Spanish territorial model, except as based on the “indissoluble unity of the Spanish Nation” (article 2).
The Constitution seems unfinished or expired in the territorial aspect and recognized jurists have believed this for a long time; Some consider that the Spanish model is in itself a federal model and others advocate that the State of the Autonomies It is unique in its kind, different from Germany or Switzerland, for example, recognized federal states. The Spanish Constitution does differ from that of those countries in that the national one does not name the autonomous communities that make up the Spanish State nor does it clearly attribute powers to them.
Federal State or Autonomous State
On the other hand, the federal States have a power of attorney by each of the State parties and supreme courts at the expense of the central State. This is one of the historical demands of Basque nationalists: to be able to elect their own judges; and this is how the Lehendakari recalled it at the inauguration of the judicial year in Euskadi in 2022.
In a federal State, powers are decentralized, except in Defense and Foreign Policy.
In addition, each of the subnational States within a federal State has its own constitution. In the case of the autonomous communities, they have autonomy statutes. In short, in the federal system the powers are completely decentralized, except in matters of Defending and of Foreign policy. The central State only legislates on certain issues.
For José Antonio Martín Pallínemeritus magistrate of the Supreme Court, Title VIII of the Constitution “is very conflictive, because although it speaks of exclusive powers of the State and those of the communities, it does not seem to be clear, because litigation often occurs that must be resolved by the Constitutional Court in a specific section for competency issues”.
“Spain is a State as federal as any other that exists”
The professor of constitutional law said José Juan González Encinar, one of the jurists who has most studied the issue of federalism, now deceased, that “Spain is a State as federal as any other of the federal States that exist in the world today.” For this professor, the 1978 Constitution only laid the foundations, but “the basket of the territorial organization of the State was made later, gradually, with the approval of the different Statutes of Autonomy, and once they were approved, the form of territorial organization of the Spanish State turned out to be substantially identical to that of any other federal State”.
What is federalism?
He former general secretary of the PSOE, Alfredo Pérez Rubalcabadefined it like this: “There are many models of federal State and the Spanish system, in reality, can be considered one of them. In short, federalism is defined by the coexistence of a central power and a series of regional powers, with powers and differentiated resources between one and the other, but with the attribution of the ultimate sovereign power to the whole and not to each of the federated units (that is the essential difference with a confederal system, in which the federated units retain sovereign power; the Union European Union could be considered a confederal system, albeit in embryo).
“In reality, the Spanish system can be considered a model of a federal State,” said Rubalcaba.
This is how the now deceased former socialist leader expressed himself in 2015, in an article in the magazine of the System Foundation. The PSOE even proposed, under his leadership, a reform of the Constitution to achieve a federal State in Spain.
From what is clear from the proposal of Lehendakari Íñigo Urkullu, it would not be necessary to propose this constitutional reform to advance federalism, but rather to reach a consensus to expressly declare that federalism fits in the Constitution as it is proposed and that within that Spanish federalism can “update” Basque historical rights and the self-government of historical communities.
The demands of the PNV
The Basque Nationalist Party (PNV) wants the hypothetical constitutional convention to analyze “the current and future scope of the first additional provision of the Constitution“. Said provision says: “The Constitution protects and respects the historical rights of the provincial territories [Nafarroa, Araba, Bizkaia y Gipuzkoa]. The general updating of said regional regime will be carried out, where appropriate, within the framework of the Constitution and the Statutes of Autonomy.”
Lehendakari Urkullu reviews in the aforementioned article the pending challenges that the Spanish Constitution has not yet achieved, after a “political and administrative decentralization” that remained there because “the judicial power was not decentralized, they did not want to make the Senate an authentic Chamber of territorial representation and a constitutional Court as an arbitrator between the central State and the communities”.
For the PSOE, the PNV proposal is “legitimate”, although it does not share it. The acting Minister of the Presidency, Felix Bolañosstated in this regard that “all the proposals made to seek points of balance and agreement between different parties within the constitutional framework” are “positive.”
For his part, the deputy of Sumar Lander Martínez believes that the Constitution, in reference to Urkullu’s proposal, offers “many tools for decentralization, national recognition, jurisdiction and the construction of a federal or confederal State, even with an asymmetrical nature,” says Martínez in reference to the fact that historical communities could have more weight or powers in that hypothetical new territorial system.
The socialists, former federalists
Since the year 2000, at least, the Socialist Party He grew his federalist vision to the point of supporting the Catalan tripartite Statute, approved in the Catalan Parliament in 2005, and in the Spanish Parliament in 2006. The then president of the Government, the socialist José Luis Rodríguez Zapateroaccepted that Catalonia is a nation, although before its approval in Parliament he managed to have the term moved from the articles to the preamble, where it has no legal value.
In the Grenada Declarationof 2013, the PSOE influenced the federal State and proposed a reform of the Senate, an improvement of the co-official regime of the languages of Spain and a new distribution of powers.
However, in 2019 the federalism of the PSOE electoral program disappeared, as a reaction to the judicialization of the processes Catalan. Pedro Sánchez was no longer talking about reforming the Constitution to build a federal State. From that moment on, it is limited to proposing progress “towards an integrative State model, in which diversity, equality and solidarity are compatible values”, where the Government “guarantees cohesion from loyalty to the exercise of the functions that the “Constitution enables the autonomous communities.”