c. The situation in Spain

by Mr Miquel ROCA JUNYENT, Professor, Barcelona

Following the death of General Franco, a process of democratisation began in Spain which led to the general
elections of 15 June 1977. Theseelections, conducted in accordance with the rules followed by all European
democracies, gave rise to the constitution of an assembly (the "Cortes Generales") elected by universal
suffrage in a free, secret and direct ballot by the sovereign will of the people.

These first "Cortes Generales" were a constituent assembly, which means that their main purpose was to
draw up a constitution clearly marking the break with the former totalitarian regime and echoing the
aspirations expressed by all Spanish citizens for the re-establishment of individual and collective freedoms.
That constitution, adopted almost unanimously by both houses of parliament, was ratified in a referendum
by the huge majority of the Spanish people.

But I wish to come directly to the subject which is more particularly of concern to this seminar, that is the
State and its autonomous communities established by the Spanish Constitution of 1978. By structuring the
State's political authority in this way, the authors of the Constitution were seeking to solve two major
problems. For a long time Catalonia and the Basque country had been demanding that their distinct character
as nations be recognised. This demand runs through the whole history of Spanish "constitutionalism" since
1812 and is a constant element in the political history of twentieth-century Spain.

The Second Republic (1931-39) took account of this in its 1931 Constitution, providing for a special system
of political autonomy to which Catalonia resorted, followed by the Basque country and, after the start of the
civil war (1936-39), Galicia. That constitution was then taken as a model for the post-war Italian
Constitution, which adopted the Spanish model but applied the system of regional autonomy to the whole of
the country. It was therefore logical, in post-Franco Spain, that the re-establishment of freedoms should also
be seen by the Catalans and the Basques as an opportunity to recover - and broaden - the autonomy enjoyed
under the Republic and annulled under the dictatorship. It was also normal that this demand was accepted in
the 1978 Constitution, which grants Catalonia, the Basque country and Galicia - all three considered as
"historic nationalities" - a high degree of self-government.

With the return of democracy, this desire for decentralisation was, this time, felt by all the Spanish regions.
Francoism, which had relied on a strong, centralised State apparatus, awoke a desire in citizens to feel closer
to power, closer to the places where decisions affecting them are made. Consequently, the Constitution
structures the State around the generalised process of access to autonomy for all regions.

In short, the 1978 Constitution recognises the right to autonomy of the historic nationalities and regions, and
establishes the political framework in which it can be implemented. In this way what we call the "process of
constructing a State of autonomous communities" was launched, involving seventeen autonomous
communities with their own independent institutions and a level of powers very similar - at least potentially
- to the federal structure in Germany, from which the authors of the Spanish Constitution took much of their
inspiration.

The differences between historical nationalities and regions in terms of autonomy lie more on a procedural
level than on the level of the contents and scope of their rights. The Constitution accords the so-called
historical nationalities (Catalonia, the Basque country and Galicia, followed by Andalusia) the maximum
level of powers from the beginning of their institutionalisation. However, for the other regions the
Constitution provides for a procedure which postpones the acquisition of the same maximum level of
powers to a later date.

It can therefore be asserted that, once the time limits set in the Constitution have expired, there will be no
difference between the autonomous communities as concerns their level of powers. Moreover, Article 150.2
of the Constitution stipulates that, if certain regions do not provide for the assumption of certain powers in
their statute of autonomy, the State may transfer these powers to one or more autonomous communities. As
a result, the upper limit of powers will be the same for all.

Nevertheless, two important exceptions can be noted. Firstly, there are certain powers which cannot be
relevant to all regions as they involve matters which only affect some of them. This is true, for example, of
linguistic powers, which can only interest those communities which have their own language as distinct
from Spanish; both languages are then considered as official and it is for the autonomous community
concerned to take legislative and administrative measures giving practical effect to the official status of the
two languages. Secondly, the situation is the same for those communities which had in the past their own
system of law, different from the ordinary Spanish law. It is, logically, up to these communities to re-
establish and update that system of law so that it may be applied in the territory concerned.

Language, law, culture, and spatial organisation on a regional and local level are among the specific
characteristics of the historical nationalities integrated into the Spanish State. Thus the State consists of a
mix of nationalities or, as is sometimes said, of a "nation of nations". These are particularities which justify
the different modes of exercise of power. However, it should be remembered that the upper limit of those
powers is the same for all the autonomous communities.

Some communities also have an important tradition of "fueros" (legal codes): their autonomy has always
been more or less recognised under different political regimes through the preservation of ancient historical
rights, particularly in fiscal matters. These historical rights were also fundamentally respected by the 1978
Constitution for the Basque country and Navarre, which have thus enjoyed their own fiscal system.

It is these particularities with regard to powers which have allowed the theory of unity and diversity to be
developed in the Spanish concept of autonomy. Thus there is acceptance of a diversity (recognition of
plurality) which does not detract from the structural unity of the State. This recognition is not however free
from the political polemics and re-emergent Jacobinism which has often upset the smooth development of
the process of autonomy in Spain.

Yet who can deny that the progress made in this area since 1978 has been extraordinary? We have seen a
very substantial decentralisation of State power, and the autonomous communities - at least those which are
"historical" - have attained a high level of self-government. And, no less important, they have attained it
with much less conflict than might have been expected. The autonomous communities have taken root in the
legal and institutional reality of Spain, and society as a whole shows that it is adapting perfectly to this new
pluralist reality.

Needless to say, this rapid summary does not deal with the subject comprehensively and does not seek to
hide the fact that there are still important questions to be solved. Nonetheless, it is right to emphasise that
there are institutional formulae today designed to solve these problems and that the political climate has
imposed serious consideration of the claims of certain historical nationalities.

We should doubtless consider in some detail what approach to take to certain national problems which are
sometimes seen, by some sectors of Spanish society, as factors likely to destabilise the State or lead to its
disintegration. I am referring to Catalonia and the Basque country. Where the latter is concerned, the
problem lies in the terrorist actions of ETA, which create an extremely tense climate in that region and are
an obstacle to the calm atmosphere that is needed if a system of self-government is to be developed.

In the case of Catalonia, the development of autonomy demands that obstacles due to certain central
government policies, impeding its capacity for self-government, be overcome. Its main demand concerns the
need to define a system of financing to achieve a better balance, in respect of State resources, between
central government and the autonomous community.

This is not a problem specific to Catalonia, but it is true that it is more acute in Catalonia than elsewhere. Its
increased powers have meant it has had to run poorly financed services generating large deficits. As a result
of the requirement of greater budgetary control and an obsession with limiting the public deficit, the transfer
of services often entails a transfer of the State deficit to the autonomous communities. Even more worrying,
the result is less efficient services.

This first approach allows us to define, apart from the question of financing, the greatest problems
obstructing the process of autonomy in Spain. Firstly, the system of financing the autonomous communities
must be reviewed. The fact that Catalonia (or its government) is voicing this problem most vehemently does
not mean that it is not a problem common to all Spain's autonomous communities. They all need greater
fiscal co-responsibility, taking the ratio of their overall revenue to their fiscal income into account.

This review will not be easy, as it raises a question of interregional balance. However, there must be a move
towards an objective, non-discriminatory system whereby the effort of solidarity between the various
communities falls to the general budget. Of course it will not be easy to find a system which satisfies
everyone, but it must be done. Because some communities have very limited possibilities, their inhabitants
sometimes ascribe the poor quality of services to a general dysfunction of the system of self-government
itself.

Secondly, since the text of the Constitution was approved, one issue has remained outstanding: the genuine
modernisation of public administration, such as to adapt it to the new reality of Spain and its autonomous
communities. In practice, the development of self-governing administrations has not led to a corresponding
reduction in central government. The effect of this is to create two parallel administrations, to slow down
procedures, to disorientate citizens and, of course, to raise costs in the public sector. Timorous attempts to
solve this situation have not as yet produced any positive results, or at least not sufficiently positive ones.

It would however seem that, following the last general elections in Spain (3 March), the different political
parties have reached agreement to move forward along the path to what may be termed a single
administration. This means that, within the territory of each autonomous community, the autonomous
administration should also act as the administrator of the services which come under State jurisdiction. The
State would legislate and set the criteria for basic action but, within this framework and the conditions
imposed by the State, the administration and management of the service in question would be the
responsibility of the autonomous communities.

Apart from the economic reasons justifying this decision (an end to the costs incurred by the existence of
two parallel administrations and useless services), it would yield a simplification of the system for which
citizens would be grateful. Moreover, the autonomous communities would be seen by their citizens as more
involved in governing their own territory and less as a second tier of central government, dealing purely with
questions of minor interest to the community.

In this connection, it should be particularly stressed that, through their respective Statutes, the Basque
country and Catalonia have developed their own systems of security by creating independent police forces
which are gradually replacing State forces and bodies across the national territory, except in those matters
which come under the exclusive jurisdiction of the State (borders, drugs, etc).

The third major problem concerns the new role to be accorded to the Senate, which is destined to become a
veritable federal-type chamber of nationalities and regions. Up to now the Senate has not played this role
and has functioned as a second legislative body without any specific political influence.

Of course, this requires amendments to the 1978 Constitution. The legislators at that time did in fact agree
on the provisional nature of some of the articles, but the majority did not dare introduce an institution of a
federal nature into the Spanish legal system before knowing how the process set in motion would unfold,
preferring to wait for the results of the provisions of the Constitution which, although legitimate and
justified in everyone's eyes, needed the confirmation of sufficient success in practice. It should be
remembered that, under the Second Republic, the autonomous status of Catalonia was only in force on a
normal, continuous basis, without a war situation, for 18 months.

There now seems to be a more complete consensus on the reform of the Senate. There are, however,
conflicting views on how to proceed. All the same, it would be absurd to consider as incongruous the desire
to bring together the representatives of each government or parliament of the different autonomous

communities to debate common problems and not, of course, issues specific to, or within the exclusive
jurisdiction of, one or other of them. It is along these lines that the legislative period which has just begun in
Spain should proceed.

Nevertheless, and despite the foregoing, the most important problem is the genuine, sincere acceptance of all
that goes to make up Spain's multinational, multilingual and multicultural reality. This "nation of nations"
must be more than a doctrinal construct emanating from the 1978 Constitution: it must become more deeply
embedded in the whole of Spanish society. Accepting and recognising the existence of diverse cultures;
respecting the different languages spoken in Spain; not seeking to impose some people's priorities on others
in defining the Spanish collective heritage: these are the most important questions to be solved.

Spain has seen a spectacular transformation over the last twenty years. One of the elements most
characteristic of this process is the development of the State comprising autonomous communities.
However, despite everything, this process has gone forward more in the legal system than in social
comprehension, except in the communities which, belonging as they do to a historical nationality, already
possessed a sufficiently developed collective awareness of their identity. The process of autonomy has had
positive aspects, of course, but it has also served as a pretext for holding up the demands made by Catalonia
and the Basque country or for imposing certain attempts at standardisation which have been resisted by these
two communities.

To overstate these problems would however be absurd: they can and must be settled within the constitutional
framework. But it must not be forgotten that attitudes and behaviour are, at the end of the day, always more
important than the decisions taken. For this reason we have argued repeatedly that the difficulties over the
process of autonomy in Spain lie neither in the Constitution nor in the Statutes, but in the political will with
which the legislative texts are applied and interpreted.

Acceptance of diversity also means making that diversity possible and viable. Diversity must not be
fossilised, it must not stagnate. Groups and communities are living elements which develop and adapt to the
realities of each moment in history. The plurality which must underpin the construction of Europe is
comparable to the rich pattern of Spain's reality, perhaps representing its contribution to the process of
European construction.

A Europe of tolerance can only be built if there is recognition of the plurality of ideas, religions, cultures and
languages, and also of peoples possessing a national consciousness within pluralistic, complex States like
Spain.

http://www.venice.coe.int/docs/1996/CDL-STD(1996)016-e.asp#_Toc90100441

Local Self-Government, Territorial Integrity and Protection of Minorities, Venice Commission, Council of
Europe CDL-STD(1996)016, Lausanne 25-27 April 1996, http://www.venice.coe.int/docs/1996/CDL-
STD%281996%29016-e.asp, 18.09.2009.