Territorial Checking and Balance: the Change of the Spanish State Territorial Organization by Subconstitutional Rules

Beijing Law Review, 2012, 3, 7-13 7 http://dx.doi.org/10.4236/blr.2012.31002 Published Online March 2012 (http://www.SciRP.org/journal/blr) Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules Antoni Abati Ninet ESADE Law School, Barcelona, Spain. Email: [email protected] Received October 19th, 2011; revised December 15th, 2011; accepted January 9th, 2012. ABSTRACT We are in the midst of a strong revival of interest in the Subnational units (Autonomous Communities) within the Autonomous Spanish State. Recent reforms of the Statute of Autonomy by certain autonomous regions have revealed new mechanisms and new ways of interaction and communication between policy-statutory subnational units—within the scope of the reforms of the Statute of Autonomy. This interaction is the assumption of a phenomenon called “horizontal autonomism”. This concrete phenomenon has not only reopened, with still more force, the theoretical and practi- cal debate about the nature of the territorial organization of the Spanish State, but also demonstrates that the notion of autonomy and the relations between national and sub-national units in Spain are permanently evolving. In addition, the recent statutory amends have initiated a new evolutive stage of the hybrid state model without reforming the Constitu- tion. The article focuses primarily on two elements of study. First, starting from a constitutional perspective the phenomenon of what is called “horizontal autonomism” as the basis of the recent reforms of the Statutes of Autonomy (subconstitutional rules). The second aspect is to analyze one of the main consequences and effects of this “horizontal autonomism” in relation to the development of the territorial nature of the Spanish state. Concretely, we focus on how the autonomous rules, are real sources of law for other autonomies, and, potentially, for the state. Keywords: Territorial Checking and Balance; Constitutional Theoretical Constructions; Horizontal Autonomism 1. Particularities of the Spanish Territorial torial organization of the power of the State. Because of Model this principle, the model of Autonomous Communities in Spain shows a notable degree of heterogeneity, at least Since the formation of the liberal state in the first third of the nineteenth century, Spain was organized in a uniform potentially. The model allows different solutions for very manner and strongly centralist. This uniformity never heterogeneous territories. ended despite the great diversity that has always existed Therefore, the Spanish Constitution does not contain a in Spain. In fact, the desire for self-government by some particular model of territorial organization because it territorial communities remained equally strong in order does not expressly define one—it does not say whether to preserve their identity. With the restoration of a de- the Spanish State is federal, integrated, unitary or re- mocratic regime after the Franco dictatorship ended in gional. The Spanish State is not even defined as a “State 1975, Spain established a model for a state to recognize of Autonomous Communities.” The Constitution designed the pluralism and diversity of its society. The result of a sui generic [2], an eclectic and ambiguous model, this recognition was woven into the Constitution and the which, however looked upon, is a model of a “com- subsequent rules of a special constitutional nature (the pound”, or “composite”, State that is politically decen- Statutes of Autonomy). This model is based on the in- tralized. From this perspective, the Spanish Autonomous dissoluble unity of the Spanish nation and built from the State was indefinitely hybrid in two specific ways: autonomy of the various nationalities and regions [1]. 1) The territorial shape of the state is constituted by The devolved powers, or voluntary principle, guide the the combination of influences from different patterns of whole process of autonomy—the territories wanting to theoretical forms of organization, i.e., it holds elements achieve autonomy regulate all decisive issues, not al- of the unitary, regional, federal and confederal systems ready regulated by the Constitution, concerning the terri- [3]. For this reason, doctrine has frequently stemmed Copyright © 2012 SciRes. BLR 8 Territorial Checking and Balance: The Change of the Spanish State Territorial Organization by Subconstitutional Rules from preconceptions about the decentralization system of those powers and competencies, and other issues. the Autonomous Communities, putting it in line with a The nature of the Statute is dual. The Statute is the law quasi-federal, federal-regional [2], unitary-federal, non- of the Autonomous Community and also the law of the institutional federalism [4], imperfect federalism, and state because the Statutes are Organic Laws of the State. dualist federal, or co-operative, model. For a large ma- Therefore, the reform of statutes shall be in accordance jority, it acts as a heterogeneous and eclectic combination with the procedure established in them (and, sometimes, of federal-regional and unitarist principles, which attempt with a referendum of the population of the Autonomous to establish it as a specific model of which the limits Community) and shall, in any case, require the approval would be found in the contents of the Statute of Auto- of the Spanish Parliament by means of an organic law [5]. nomy and in the remaining rules of the so-called “consti- It should be noted, too, that the Statute has a constitu- tutional block.” tional function because it completes the constitution It can be argued that the model of Autonomous Com- (they form part of the “constitutional block”). The Sta- munities corresponds to certain very specific characteris- tutes of Autonomy are the agreed upon rules by means of tics. Indeed, the Spanish political system does not have which the right to autonomy of the Autonomous Com- certain structures inherent in a concrete system of territo- munities is provided; that is, they are the rules allowing rial organization [3]. The lack of some of the typical in- the nationalities and the regions to create their self-go- stitutions of cooperative federalism, and the lack of ex- vernment and to legally constitute themselves as Autono- plicit recognition of the political system as a Spanish mous Communities, putting into practice the form of federation, has generated a huge debate on the state State sketched out in the Constitution [5]. Therefore, model. with the extremely important constitutional function of 2) The Spanish Constitution does not directly code the specifying the system of institutions and powers of the features of the organization of the state. That means that Autonomous Communities within the notable degree of the territorial organization of the state can be developed openness and flexibility set out by the Constitution, the in a flexible manner within the framework of the general Statutes of Autonomy provide some latitude over the principles established by the Constitution. As Villalón content of the autonomy and, at the same time, a poten- Cruz noted, “It has begun a process of state transforma- tial element of singularity and heterogeneity in the sys- tion that is well known where it begins, but we would not tem as a whole. know where it ends [5]”. Consequently, in Spain there In addition, the Statutes are subconstitutional norms. exists an indefinitely open model that continues to evolve The Constitution is a norm hierarchically superior to the by succession or sequence of stages because it is not Statute. So, if the Statute operates in contrast to the Con- closed constitutionally. Currently, with the reform of the stitution, this statutory content must be declared void autonomous statutes of Catalonia and Andalusia, a new (and, therefore, unconstitutional). Also, if the Statute evolutionary stage of this model seems to be initiated. operates in contrast to the constitutional block, the situa- tion would remain the same as the previous one (where Therefore, we would argue that there is not a constitu- part of the Statute violates the Constitution) and the out- tional consolidation of the Spanish form of territorial come would also entail the declaration of unconstitutio- organization, and the new reforms demonstrate that. We nality of the norm of the Statute. understand that this feature of the Spanish territorial or- A different case is the relationship between the Sta- ganization model produces tensions between the different tutes and state laws—a state law cannot change a Statute. intensities of theoretical influence and, ultimately, the In addition, the fact that the Statute has a material role in need to achieve a reasonable balance. completing the Constitution would mean that the Statute is a valid parameter of state laws, to the extent that the 2. The Statutes of Autonomy and “Horizontal Statute predetermines the content of state law. Therefore, Autonomism” in order to determine whether a subject is the response- The Spanish Constitution declares that the “Statute of bility of the state or of Catalonia, we have to see what the Autonomy” is the basic institutional norm of each Auto- Statute and the Constitution provide. nomous Community, and “the State shall recognize and Another matter is that the Statute goes against the protect them as an integral part of its legal system.” It is judgments of the Constitutional Court. This contradiction the legal document that specifies the right to autonomy

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