I have read with respect the ideas developed by eminent professors of Constitutional and Administrative Law on the urgent constitutional reform to "remedy" the "constitutional crisis in which we are immersed."
I believe that Spain does not suffer from any "secular curse" that has led us to revolution or coups d'état in the face of constitutional crises, instead of channeling them through constitutional reform. Such a curse does not exist nor has it ever existed, but rather a society with great inequalities and an almost genetic intolerance that has prevented the establishment of a model of coexistence in which social conflicts are channeled legally and peacefully.
I also believe that constitutional reform will not come to fruition if all the factors that have been leading us to the lion's den are not laid bare on the table.
I will dwell on one of those factors. The State of Autonomies stems from constitutional norms and political agreements that were inevitably open. Its current profile meets the basic principles of federalism: territorial distribution of legislative and executive power between the State and territorial entities, guarantee that the distribution of powers cannot be unilaterally modified by the State, and the existence of a jurisdictional body, the Constitutional Court, which resolves conflicts of powers by legally interpreting the Constitution.
The Autonomous State, like Federalism, has as its primary purpose a voluntary political and territorial integration, based on respect for diversity and solidarity.
No federalism is an infallible antidote against centrifugal or secessionist tendencies. It simply coexists with them. But all really existing federalisms in which we can look have been consolidated with the help of norms that tend to favor, or at least not punish, the factors of integration; nor, of course, to reward the dissolving forces.
The Spain of the Autonomies, paradoxically, maintains an electoral system to the Congress of Deputies (Chamber on which the stability and action of the Government depend) that facilitates the overrepresentation of peripheral nationalisms. And, at the same time, it penalizes minority parties of state scope. This is so obvious that it does not require further consideration.
The failure of the General Commission of the Autonomous Communities of the Senate and the weakness of the coordination and cooperation mechanisms in our autonomous system have much to do with the rejection of Basque and Catalan nationalisms to multilateralism, to sit on an equal footing with the other autonomous governments. And, of course, with the rent of situation they enjoy in Congress.
If they use Congress as a bilateral bridge and obtain abundant budgetary and competential gains every time there is a state government in minority (1996, 2004, 2008, 2016), why do they need other coordination bodies. And if Euskadi and Catalonia do not participate, any State-Autonomous Communities coordination forum is born completely devalued.
This electoral system has been in force since the first democratic elections (1977) and was subsequently validated by the Organic Law of the Electoral Regime, in development of constitutional provisions.
And it has pushed the Autonomous State in a diametrically opposite direction to that of contemporary federal states. The tendency to strengthen federal bodies has been constant both in the United States and in Germany, to respond effectively to the growing demands of citizens.
REALLY EXISTING FEDERALISMS
In the USA, since the Supreme Court proclaimed the principle of implied powers (1819). And more intensely, when in the mid-twentieth century the Court itself was confirming the constitutionality of some federal laws that embodied the American version of the Welfare State.
In Germany, and also as a consequence of the development of the Welfare State, through the constant use by the federal Parliament of the "necessity clause" --to safeguard the legal and economic unity of Germany or equality in the living conditions of all its inhabitants-- and the application of the doctrine of "unwritten competences".
When professors propose to transfer to the autonomous state the participation mechanisms of the German länder in federal legislation, the so-called "approval laws" that require the agreement of the Bundestag and the Bundesrat --Chamber that represents the governments of the member states, prototype for the future of the Senate--, it should not be forgotten that in Germany that participation has functioned as a compensatory mechanism for the loss of legislative powers by the länder.
That the strengthening of the competences of the Federation has been at the expense of those of the Member States is obvious. It is a zero-sum process: what the Federation gains in power, the federated States lose. And the increase in the interventionism of public authorities in social and economic life as a consequence of the implementation of the Social State, has generally played in favor of the power of the federal authorities.
Both Constitutions use the "principle of attribution" to define the objectives/competences of the Federation. So that the other competences correspond to the Member States (residual clause). And in both systems the strengthening of the power of the federal bodies has been the result of a constitutionally endorsed mutation jurisdictionally. That is to say without reforms or with very specific reforms of the Constitution.
Therefore, when there is talk of using federal techniques to adapt the autonomous state "to those changes in social and political reality", or to channel the Catalan crisis, it is necessary to clarify whether not only the mechanisms of competential distribution regulated by the Constitutions of those countries are going to be adopted, but also the principles and clauses used to strengthen the competences of the legislative and executive bodies of the Federation, until they become what they are today.
Also the European construction, since the founding Treaties, imitated the technique of competential distribution of the American Constitution. But also the application of the principle of implied powers, endorsed by the Court of Justice of the European Communities since 1971 (case Commission vs. Council) and gradually incorporated into the constituent Treaties (308 TEC and 352 TFEU).
And, as in the United States, the joint application of both "mechanisms" has facilitated the development of the European legal system and community policies, against the resistance of the Member States that ended up establishing the principle of subsidiarity, as a bulwark of their battered sovereignties.
MAKING THE AUTONOMOUS COMMUNITIES PARTICIPATE IN THE APPROVAL OF THE BASIC LEGISLATION OF THE STATE.
Through a Senate that represents the autonomous governments in the image and likeness of the Bundesrat, it may be a good idea. But in my opinion, "if and only if" the system of election to the Congress of Deputies is modified so that a Government that does not have an absolute majority can find a state-wide party with which to agree on a legislative program designed for the whole of Spanish citizens. And does not have to go through the caudine forks of the demands of overrepresented peripheral nationalisms.
Because if the evolution that has brought us here continues, the state institutions will end up losing even the essential competences to fulfill their constitutional functions: mainly that of ensuring the substantial equality of citizens throughout the Spanish territory. Until making the State itself unviable.
So that, if that electoral reform is not carried out, the autonomous governments of nationalist orientation will exercise their competences in full, will condition the policy, the budgets and the state legislation in the Congress; and, in addition, will participate decisively in the main state laws through a Bundesrat-type Senate.
ONE IDEA
It is not about penalizing the parties of peripheral nationalism, but about correcting the deficit of representation suffered by minority parties of state scope (IU, UPyD, Cs...) that are essential to ensure governability from the perspective of the citizens of all Spain.
An ambitious reform of an electoral system, which was largely constitutionalized to scare away our historical ghosts, may require the reform of the Constitution. But a more modest reform, but very useful in the proposed sense, could be carried out through a simple modification of the Organic Law of the General Electoral Regime: acting on the number of deputies, the minimum representation of each provincial constituency and improving the seat/population ratio. And, therefore, approaching the democratic principle of equal vote.
By Santiago Pérez*
*Professor of Constitutional Law at the University of La Laguna, he has been general director of autonomous development of the Canary Islands (1983), spokesman for the PSOE in the General Commission of the CCAA of the Senate (1994) and in the Special Commission for the Reform of the Senate (1997) and spokesman for the Socialist Group of the Parliament of the Canary Islands (2009), in the Island Council of Tenerife and in the City Council of La Laguna during several legislatures.