Decentralising under pressure: The Spanish Constitutional Court and the LOAPA ruling Fernando Gil Universitat Pompeu Fabra, Barcelona Department of Political and Social Sciences [email protected] Abstract In its early stages, the Spanish decentralisation process pursuant to the 1978 Constitution developed in an ad hoc and uncoordinated manner. Shortly after the failed coup of February 23, 1981 the two main statewide parties, UCD and PSOE, reached an agreement to “rationalise” the process and subsequently approved the “Organic Law on the Harmonisation of the Autonomy Process” (LOAPA). The law met with stern opposition from Catalan and Basque nationalist parties, as well as the Spanish Communist Party, which appealed to the Constitutional Court. By examining the framing that political actors made of the upcoming ruling, its influence on public opinion and the final Court decision, this paper analyses the impact of external pressure on a new constitutional court using a process-tracing methodology. The research question addressed in the paper is whether strategic considerations, and more specifically, the preservation and enhancement of the Court’s legitimacy had a significant influence on the LOAPA ruling. It is hypothesised that politicians successfully constrained the Court’s choices by threatening its capital of public support. This assumes that politicians use the media to convey their messages to both judges and the general public and that they are effective in politically framing the public debate and citizens’ opinions. It is argued that both the risk of having its legitimacy eroded and the political consequences of the ruling had a decisive influence on the “Solomonic” decision taken by the Spanish Constitutional Court in the landmark LOAPA case. Keywords: Spanish Constitutional Court. Judicial decision-making. Decentralisation. Federalism. Process-tracing DRAFT January 2018 This is a draft, please do not quote or circulate without the author’s permission. 1 1. Introduction After the 1978 Constitution was approved, Spain became a multilevel political system which has been described as characterized by constant pressures for competition between regions with asymmetric powers and insufficient institutional mechanisms for cooperation (Gunther et al., 2006: 175). In such a system, the arbitraging role of the Spanish Constitutional Court has been of paramount importance for the implementation of the decentralised State of the Autonomies (Moreno, 2002: 405). In the case of federal states, constitutional courts typically play a role in resolving disputes between authorities at the federal and state levels. It has also been claimed that successful constitutional judicial review is caused by and may be requisite to successful federalism (Shapiro 2002: 150), being one of its necessary components (Sala, 2014: 194). This argument can be extended to Spain. Even if lacking the shared-rule characteristics of federations, it has been argued that Spain qualifies as federal as far as its regions self-rule is concerned (Beramendi and Máiz, 2004: 136). The State of the Autonomies functions in practice as an asymmetrical “quasi-federal” state or, in any case, contains federal-like arrangements (Moreno, 1997; Aja, 2003, 2014). These arrangements include the key role the Spanish Constitutional Court plays in arbitrating competence conflicts between the central government and the Autonomous Communities1. The Court itself was aware of its crucial role in contributing to the development of the decentralisation process2, which the Constitution had left largely open and subject to interpretation. That role was particularly important in the early stages of the Spanish decentralisation process, which developed in an ad hoc and uncoordinated manner. Shortly after the failed coup of February 23, 1981 the two main statewide parties, Unión de Centro Democrático (UCD) and Partido Socialista Obrero Español (PSOE), reached an agreement to “rationalise” the process and subsequently approved the “Organic Law on the Harmonisation of the Autonomy Process” (LOAPA)3. The law met with stern opposition from Catalan and Basque nationalist parties, as well as the Spanish Communist Party, which appealed to the Constitutional Court. The Constitutional Court ruling4 issued in August 1983 was widely considered “Solomonic”, with both LOAPA opponents and supporters claiming it favoured their respective positions.5 1 Article 161.1.c of the 1978 Spanish Constitution provides that: “The Constitutional Court has jurisdiction over the whole of Spanish territory and is competent to hear: […] c) conflicts of jurisdiction between the State and the Autonomous Communities or amongst the Autonomous Communities themselves.” 2 Mérida, M. (1981, December 6). “El Tribunal puede y debe colaborar positivamente en la estructuración del proceso autonómico”. La Vanguardia, p. 12. 3 Proyecto de Ley Orgánica de Armonización del Proceso Autonómico (LOAPA), aprobado por el Pleno del Congreso de los Diputados el 30 de junio de 1982. Boletín Oficial de las Cortes Generales. Congreso de los Diputados. I Legislatura. 7 de julio de 1982. Núm. 235-III. 4 Constitutional Court Ruling 76/1983, of August 5, 1983 (BOE n. 197 of August 18, 1983). 5 Díez días de suspense para el desenlace del caso Rumasa. (1983, December 2). La Vanguardia, p. 4. 2 The questions this paper will then try to answer are the following: was Constitutional Court Ruling 76/1983 on the LOAPA bill the result of a purely hermeneutical interpretation of the 1978 Spanish Constitution or were other factors (also) into play? And, more specifically, did strategic considerations, such as the preservation and enhancement of the Court’s legitimacy and/or the possible political consequences of the decision, have a significant influence on the final Court’s decision? The objective is to test the hypothesis that, for constitutional judges, strategic considerations are crucial for adjudicating. More specifically, the hypothesis tested in this paper is that in the LOAPA case politicians successfully constrained the Spanish Constitutional Court choices by threatening its capital of public support. The hypothesis rests on the assumption that politicians do use the media to convey their messages to both judges and the general public and that they are effective in politically framing the public debate and citizens’ opinions. A further key theoretical assumption is that the indeterminacy of legal texts means that judicial decision making is not a purely objective activity and that judges ideologies as well as external factors, most notably the institutional environment, might have a role in constitutional courts’ decisions. The alternative hypothesis postulates that decisions are taken by constitutional judges either by exclusively applying legal hermeneutical techniques or according to their personal, political or social preferences, rather than being influenced by their institutional and political environment. The authority and independence that, according to Moreno (2002), its arbitraging role provided the Spanish Constitutional Court with during its first years of operation later showed signs of having been significantly eroded6. This became acutely clear when on June 28, 2010, after four years of deliberation, the Court issued Ruling 31/20107 on the 2006 Statute of Autonomy of Catalonia (reforming the Statute of Autonomy of 1979), and declared fourteen of its articles unconstitutional and twenty-seven others to be reinterpreted. The same Catalan parties which had taken part in the negotiations leading to the passing of the bill approving the reformed Statute in the Madrid parliament (CiU, PSC, ERC and ICV) firmly opposed the Court’s decision. Tensions subsequently arose within those same political organisations and, together with the increasing mobilization of newly created platforms inside and outside parties, demands for a “right to decide” (equivalent to self-determination) rapidly spread in Catalonia (Nagel, 2015: 392). The Spanish Constitutional Court was accused of being politicized and of not respecting the democratic will of the Catalan voters who had previously approved the new Statute in a 6 Centro de Investigaciones Sociológicas (CIS): Serie A.1.02.02.005. Escala de confianza (0-10) en instituciones: Tribunal Constitucional. Share of respondents answering “No trust at all in the Spanish Constitutional Court” increased from 7,1% in 1994 to 21,2% in 2015. It is important to mention that the data are not disaggregated per autonomous community. 7 Constitutional Court Ruling 31/2010, of June 28, 2010 (BOE n. 172 of Julio 16, 2010). 3 referendum (Blanke & Abdelrehim, 2015: 60).The action of unconstitutionality brought by the conservative Partido Popular (PP) against the reformed Statute of Autonomy and the possible consequences for Catalonia’s right to self-government of a ruling curtailing the Statute generalized the perception that there was a replay of old impositions by the centre on the periphery (Moreno & Obydenkova, 2013: 160). In this sense, these developments have been repeatedly compared to the tense political situation between the Spanish central government and the Catalan and Basque regional governments caused by the approval in 1981 of the “Ley Orgánica de Armonización del Proceso Autonómico” (Organic Law on the Harmonisation of the Autonomy Process) (LOAPA). Both before and after the Spanish Constitutional Court issued Ruling 31/2010, Catalan and Basque politicians and media commentators alike have repeatedly referred