Section 2 of the Spanish Constitution, read with Section 143, guarantees the fundamental right of Autonomous Communities (AC) to self-governance. Section 151 outlines the procedures for implementation of this right by laying down two major routes to regional autonomy ~ a fast track route for ‘historic regions’ that already have their Statutes of Autonomy; the Basque Country, Catalonia and Galicia became ACs through this route.
The other is a slow route applicable to other regions which need at least five years following the procedure described in the Section. But a homogenous standard is applied to governance in all 17 ACs: each AC has a legislative assembly, elected directly through proportional representation; the Government Council is headed by a President with legislative and executive powers and each AC has a Supreme Court of Justice under the jurisdiction of Spain’s Supreme Court. Castilian is the official language, but Section 3 of the Constitution recognises the existence of, and accords co-official status to, other Spanish languages in their respective Statutes.
However, as regards financial autonomy, two ACs, Navarre and the Basque Country, have additional “competencies” not enjoyed by the other ACs. They can collect some of the State taxes like the income-tax and pay to the State for the services they receive from it, while the other communities follow a uniform tax regime based on collection by the State and their redistribution and devolution to the Communities.
Distributing legislative competencies between the Centre and the ACs is rather complicated and ambiguous. Sections 148 and 149 of the Spanish Constitution stipulate separate lists of competencies for the Centre (Constitution uses the word State) and the regions (ACs), much like the Seventh Schedule of the Indian Constitution. But the striking feature is that such allocation of powers and responsibilities remain open to negotiations, and this renders the federal dynamics highly flexible.
As the political scientist Wilfred Swenden says, “Such complexity stems in part from the lack of agreement on where the Spanish state should be heading ~ a federal, a regionalized or unitary decentralized state?” Here a fragile Central authority tries to hold together diverse nationalities which are in themselves powerful enough to demand additional competencies to serve their respective interests.
The conflict of interests, which are bound to arise from such an ambiguous arrangement, are to be addressed by the Spanish Constitutional Court. The high degree of asymmetry in its political structure was subsequently sought to be reduced through the so-called policy of cafe para todos ~ coffee for everyone instead of champagne for the nacionalidades. This was done through two agreements.
The first, called LOAPA (Law for the Harmonisation of Autonomous Process), was signed between the State and the major national parties in 1981 challenging the preferential status of some ACs even though these were ratified earlier by the Spanish Congress, which naturally brought these ACs, especially Catalonia and the Basque Country, into conflict with the State.
The Constitutional Court finally nullified a large number of its provisions as unconstitutional reinforcing the autonomy of the ACs, but the agreement still managed to bring in more uniformity and symmetry in the process. A second agreement, Pacto Autonomico, was signed in 1992 by the State with the two largest national parties for removing the asymmetry between the fast-track and slowtrack ACs, by equalisation of their competences through an Organic Law that was passed in December 1992 and followed by necessary reforms of the Statutes of the disadvantaged ACs.
This allowed major competences in education, health and some social services to be transferred to them. The progressive transfer of competences to the ACs enabled the Spanish system to reduce the extensive asymmetry in the original constitutional arrangement. Demands for renegotiation of the Statutes were subsequently raised by the Basque Country and Catalonia, driven by their nationalistic movements.
The Basque country wanted to be ‘a free state associated with Spain’, a demand that was rejected by the Spanish Congress in 2004. Catalonia demanded recognition as ‘a nation’ and higher levels of competences reflected in its Statute of Autonomy in 2006 which was passed by its legislature. Most of these demands were approved by the Spanish Congress and later ratified in a referendum by Catalan voters.
However, Spain’s Constitutional Court had ruled in 2010 that parts of Catalonia’s revamped statute of autonomy were unconstitutional. It also did not recognise Catalonia as a nation ~ a ruling that had stoked nationalist sentiments in Catalonia demanding independence from Spain. Catalans looked at the judgment as “an act of contempt against the will of the people expressed by its Parliament and a referendum”.
In January 2013, Catalonia’s parliament approved a “declaration of sovereignty” through independence from Spain, to be ratified by a referendum in late 2014. However, in March 2014, the Constitutional Court pronounced that it was unconstitutional. But in November 2014 , Artur Mas, the then President of Catalonia, still went ahead with the referendum, already made non-binding by the Court.
Though the turnout was estimated at around 37 per cent (2 million out of total 5.4 million voters), about 80 per cent of the people voted for independence. Catalonia of course has the economic wherewithal to survive independently. It has a language of its own and it conforms to the definition of a nation in every sense.
In September 2015, separatist parties secured an absolute majority in the regional Parliament and in November, they voted for a resolution to support independence, which was again struck down by the Constitutional Court in December. In January 2016, the staunch separatist, Carles Puigdemont, was chosen as the successor to Mas.
He pledged to carry out a binding independence vote. He pushed the legislation authorising another referendum whose results would be binding through the Catalan Parliament with a narrow majority. Before the referendum took place, opinion polls had suggested that only 41 per cent of Catalans wanted to break away, while the majority still wanted to stay with Spain.
The Constitutional Court ruled the proposed referendum as illegal and the federal government under Prime Minister Mariano Rajoy opposed it, and tried to prevent it with all its might ~ by using disproportionate force to crack down on those who dared to vote, and to stop the referendum from going ahead. This infuriated the Catalans, including many of the 59 per cent who were opposed to the referendum and favoured national unity over attempts at self-determination by subnational groups.
Clearly, the people who had voted for independence did not represent the majority of Catalans. But now, thanks to Mr Rajoy’s high-handed techniques, the majority may actually be turning against Spain. As The Economist has commented, a well-run democracy must abide by the rule of law to protect democratic liberties and not to curb the freedom of minorities to express dissent and discontent.
Puigdemont may not have a strong case for independence or a claim for majority mandate. But democracy rests on the consent of the governed, and Constitutions exist to serve citizens, not the other way around. Rather than upholding the rule of law, Rajoy has tarnished the legitimacy of the Spanish state, and Spain may have to have to pay a price for it.
The case for unity must be won by argument and persuasion, not by the use of brute force and display of coercive state power, which instead of preventing might actually be precipitating the break-up of Spain. As Mr Puigdemont has now realised, negotiation is the only way out, and there ought to be a measure of give-and-take, giving Catalans more political and financial autonomy.
If the autonomous society is threatened, it may destabilise the federation, just as an overdose of asymmetrical federalism could result in secession. Multiple identities are natural in large and complex societies. The essence of a cohesive federation is to capture the complexity of society as a whole, to integrate unity with diversity while allowing distinct identities to flourish, and to provide an inbuilt mechanism to deal with the tension and conflicts which are parts of the natural order of things in every society.
Only by doing so, a common identity is evolved which does not subsume the individual identities of the constituent units, but helps them blossom further still.
(Concluded)
(The writer is a commentator. Opinions expressed are personal)