SPAIN* (Kingdom of Spain) Siobhán Harty* 1. History and Development of Federalism The Kingdom of Spain (504,750 km2) is located in the southwestern part of the European continent, on the Iberian Peninsula. Its population for 1999 was 40,202,160. The country’s current configuration dates back to 1492, when the last Muslim kingdom fell in Granada. From 711 until 1492, a period known as the Reconquista, Christian and Islamic forces were locked in a battle over control of the territory. During this period, Spain was a series of kingdoms, two of the most powerful of which, Castile and Aragón, were united in 1469 with the marriage of Ferdinand of Aragón and Isabella of Castile. Until the eighteenth century, Spain was made up of various kingdoms on the Iberian peninsula. Each kingdom was treated as a distinct entity with its own laws and institutions. Spain’s composite monarchy was a loose dynastic union that worked against the consolidation of a unified and coherent Spanish national identity, the consequences of which have been felt up until the present day. In the eighteenth century, a new Bourbon monarchy attempted to centralize state power along the French model most notably by eliminating Catalan political institutions following the War of Spanish Succession (1700-1713). In the nineteenth century several political and military challenges stretched the capacity of the Spanish crown to build a unified nation-state and remove the threat of rival nationalities in the peripheral regions, including the Napoleonic invasion, a succession of civil wars, and the loss of Spain’s last colonies. The consequence of these events was a weak state that relied heavily on the military to maintain order. Added to these difficulties was a particular pattern of industrialization that was concentrated in Catalonia and later the Basque Country, bringing wealth and prosperity to these regions while Castile remained largely agricultural. The state’s inability to achieve political and economic modernization was compounded by competing visions of the Spanish state and national identity, most notably state centralism, which did not preclude some political or administrative decentralization, and unitarism, which viewed the territorial state and the Spanish nation as one and indivisible. Federalism was one possible response to the problem of state and nation building in Spain. Historically, federalism was a democratizing force in Spain, which meant that it was a political project pursued by many republicans. The failure of nineteenth and early twentieth century republicanism, then, necessarily meant the failure of federalism. There was, first, the radical experiment of the Federal Republic—also known as the First Republic—of 1873-74 which sought to introduce federalism abajo-arriba (from the bottom up). Due to political opposition, however, republican leaders failed to introduce and implement a federal territorial structure and division of power. Under the Second Republic (1931-39) there was never an explicit commitment to creating a federation, although the “Estado integral” may have provided some similarities in terms of its emphasis on regions. During the Second Republic Madrid was controlled by centralist republicans, while in the regions, federal republicans worked towards self-government through Statutes of Autonomy. Catalonia led the way with a Statute that was passed by the Spanish Parliament in 1932. The Autonomy Statutes created a political controversy that contributed directly to the outbreak of the Civil War (1936-1939), which was won by the forces of General Francisco Franco. The Civil War was, in part, about destroying regional autonomy and re-instating Spanish unity. During Franco’s dictatorship (1939-1975), the regime severely repressed nationalism and regional culture in the Basque Country, Catalonia and Galicia. Towards the end of the dictatorship, the minority nations began campaigning for a return to autonomy. But the autonomy question and the idea of federalism would prove to be substantial obstacles to a peaceful transition to democracy following Franco’s death (1975). Nevertheless, a commitment on the part of Spanish political elites (including the King) to reverse discrimination against minority nations opened up the path to constitutional innovations. 2. Constitutional Provisions Relating to Federalism Spain is a parliamentary monarchy with King Juan Carlos I as its current head of state. The constitution of the Kingdom of Spain was passed by the Cortes Generales on 31 October 1978 and was ratified by the Spanish people in a referendum on 7 December 1978. Spain is not a federation in name nor is it a state made up of “constituent units”, as is the case with most federations, but it does share many of the institutional features of federal states. Nevertheless, there has been much debate in Spain over the precise nature of the constitutional relationship between Madrid and the regions, especially the historic nationalities of Catalonia, the Basque Country and Galicia. The debate is due to the ambiguity of Article 2 of the constitution, which states that “[t]he Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible country of all Spaniards; it recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed, and solidarity amongst them all”. Although this article promotes the idea that there is only one constituent nation (Spanish), there are constitutional provisions that promote aspects of federalism. Thus, according to Article 137, “[t]he State is organized territorially into municipalities, provinces and any Autonomous Communities that may be constituted. All these bodies shall enjoy self government for the management of their respective interests.” Accession to autonomy is a voluntary right and the constitution specifies how this right can be exercised. Since there are three different ways in which a territory can acquire autonomy, Spain is often referred to as characterized by a form of asymmetrical federalism. The first path to acquire autonomy is through Transitory Provision No. 2, which allowed the Basque Country, Catalonia and Galicia, as “territories which in the past have, by plebiscite, approved draft Statutes of Autonomy and which at the time of the promulgation of this Constitution, have provisional autonomous regimes”, to proceed to autonomy immediately after the constitution was passed. (The Statutes of the Basque Country and Catalonia came into force in 1979 and that of Galicia in 1981.) This procedure, known as the “rapid route” to autonomy, recognized the status of these three communities as historic nationalities. Second, according to Article 143, “bordering provinces with common historic, cultural and economic characteristics, island territories and provinces with historic regional status may accede to self-government and form Autonomous Communities”. Generally referred to as the “slow route” to autonomy, Article 143 requires several complicated steps intended to prove popular support for autonomy before a community could acquire powers specified in Article 148. However, it produced a limited form of autonomy, since a newly-established community had to wait five years before expanding the range of its powers to include those allowed under Article 149. Third, Article 151 (the “exceptional route”) allowed non-historic communities to proceed to autonomy along a route that eliminated the five-year waiting period through a system of local initiatives and referenda. This process is even more complicated than that outlined in Article 143 as it requires more than one popular referendum. Andalucia is the only community that was allowed to proceed to autonomy along this path. Spain’s central government is bicameral. The Cortes Generales consists of the Congreso de Diputados (Congress of Deputies), the legislative body, and the Senado (Senate), the upper house. Article 64 of the constitution states that the Senate is a chamber of territorial representation for the Autonomous Communities. However, most Senators are elected from provinces1—only a minority is elected from among the members of the regional assemblies of the Autonomous Communities. In 1994, an inter-party working group was set up in the Senate to consider the possibility of a constitutional amendment that would transform the upper house into a chamber of the regions. Although there is support for such an amendment, its progress has been slow. There are 17 Autonomous Communities in Spain, each having an Autonomy Statute that was approved by the Spanish Cortes. In this sense, the autonomy of each community ultimately depends on parliamentary authority. The Autonomy Statute sets out the constitutional division of powers, which are provided for in Articles 148, 149 and 150. Article 148 specifies the exclusive powers of the Autonomous Communities and includes: matters relating to the institutions and functioning of self-government; planning and public works; some transport; agriculture, forestry, fishing and the environment; tourism; museums, libraries and the promotion of culture; sports and leisure; health and hygiene; and social assistance. Article 149 specifies the exclusive powers of the Spanish state. These powers include: international relations; the administration of justice and certain areas of the law (criminal, penitentiary and commercial); certain legislation (civil rights, labour, intellectual property); the armed forces; immigration and emigration; economic planning; customs and tariffs; foreign trade; taxation; promotion of scientific research; public safety; and promotion of Spanish culture. Several Autonomous Communities have, over time, negotiated the transfer of the central state’s exclusive powers through two mechanisms contained in Article 150. The first mechanism is the delegation of powers and the transfer of financial resources to fund these powers. This delegation in no way implies a ceding of sovereignty on the part of the central power. Second, some normally exclusive powers of the state (justice, fiscal affairs, public security and international affairs) have been acquired by the “rapid route” Autonomous Communities. There is one important special constitutional provision related to the division of powers—Additional Provision No. 1. According to this, the constitution protects and respects the historic rights of the territories with “fueros”, which are the historic privileges of different Spanish regions. Most of these privileges were lost during the eighteenth and nineteenth centuries, although the Basque Country and Navarra retained some of theirs. The fueros are not merely residual powers that are largely irrelevant for the twenty-first century; Additional Provision No. 1 makes it clear that these privileges can be updated within the framework of the Autonomy Statutes. Indeed, the fueros have been central to current debates on increasing federalism in Spain (see Section 3, below). The financing of the governance of the Autonomous Communities is provided for under several different constitutional articles. Article 156 recognizes the right of the Autonomous Communities to financial autonomy. Article 157 stipulates that “[t]he resources of the Autonomous Communities shall comprise: a) taxes wholly or partially made over to them by the State; surcharges on State taxes and other shares in State revenue; b) their own taxes, rates and special levies; c) transfers from an inter-territorial clearing fund and other allocations to be charged to the General State Budget; d) revenues accruing from their property and private law income; e) the yield from credit operations”. In addition, Article 158 states that an allocation may be made to the Autonomous Communities in the General State Budget in proportion to the volume of state services and activities for which they have assumed responsibility. The details of the financial arrangements and mechanisms to be applied to finance the Autonomous Communities were laid out in the Organic Law on the Funding of Autonomous Communities (Ley Orgánica de Financiación de las Comunidades Autónomas, LOFCA) in 1980. In addition to the law, various multi-year agreements have been negotiated between a state body set up by this law and the regional assemblies. Financing is also regulated by the principle of solidarity among the communities, which is designed to correct regional imbalances (Articles 2, 138, 156). The Inter-Regional Compensation Fund (Article 157.1) redistributes funds among regions according to criteria such as population density, relative income, level of unemployment, level of integration, population dispersal and insularity. The central government has primary responsibility for raising taxes under Article 133.1, but Autonomous Communities and local governments may also raise some taxes (Article 133.2) where the state has delegated the power to do so. Very few Autonomous Communities do raise taxes, the exceptions being the Basque Country and Navarra, which have retained historic tax-raising powers through Additional Provision No. 1. The rates for some of these taxes (personal income tax, company tax and VAT) must be the same as those set by the state. Given Spain’s troubled constitutional history, the fathers of the current constitution were careful to create institutions and procedures for the resolution of disputes, and in particular this role falls to the Constitutional Court (Title IX (Articles 159-165)). According to Article 159, the Court consists of 12 members appointed by the King for nine years. Members are nominated by Congress (4), the Senate (4), the government (2) and General Council of the Judiciary (2). The Court has jurisdiction over all Spanish territory and is empowered to hear appeals about the unconstitutionality of laws and regulations, individual appeals for protection against violation of rights and liberties, and conflicts of jurisdiction between the state and the Autonomous Communities or between the Autonomous Communities themselves (Article 161). The Spanish government is permitted to contest before the Constitutional Court rules and regulations adopted by the agencies of the Autonomous Communities (Article 161.2). This right can potentially cause divisions between Madrid and the Autonomous Communities since the decision to contest a provision causes its immediate suspension. The Court then has five months in which to ratify or lift the suspension. The procedures for constitutional amendment are complicated and vary depending on which parts of the constitution are to be amended. The government, Congress or Senate, can propose an amendment (Article 166), which must then be approved by three-fifths of both Houses (Article 167.1). Once this has been achieved, the amendment is submitted to a popular referendum, if one-tenth of either House requests it within 15 days of its passage (Article 167.3). If, however, the three-fifths threshold is not reached in the two Houses, a Commission of Deputies and Senators is set up to redraft the bill. It is then resubmitted to the two Houses for voting (Article 167.2). If approval is not achieved in this way, but at least the majority of the Senate has passed the bill, then the Congress can pass the bill by a two-thirds vote in favour (Article 167.2).2 The amendment procedure is more complicated in the two following situations: (1) a total revision of the constitution is proposed or (2) a partial proposal is made that will affect the Preliminary Title (Articles 2-9), Chapter Two, Section 1 of Title I (Fundamental Rights and Liberties), or Title II (the Crown). In these cases, two-thirds of each House must approve the principle of amendment, at which point the Cortes is dissolved and general elections are held (Article 168.1). The newly-elected Cortes must approve the decision, proceed to an examination of the new constitutional text and ratify it through a two-thirds majority of both Houses (Article 168.2). Finally, the new constitution must be ratified in a popular referendum (Article 168.3). 3. Recent Political Dynamics Spain’s transition to constitutional democracy is an achievement of which the population and its political leadership are justly proud. However, the constitution of 1978 is not without its critics. Some groups, such as the extreme Basque terrorist organization ETA (Euskadi Ta Askatasuna/Basque Land and Freedom), have never accepted its legitimacy. More moderate, nationalist groups in the Basque Country, Catalunya and Galicia have criticized the narrow interpretation of the federalizing capacity of the constitution by the ruling parties in Madrid. Since 1998, there have been new public debates on federalism and the constitution. Several factors explain the timing of these debates and suggest that they are unlikely to go away. There is, first, the fact that Spain is a member state of the European Union, where regionalism is an accepted and promoted feature of integration. Second, there is widespread agreement that Spain’s democracy is now stable enough for a public debate on increasing federalism. Third, the twentieth anniversary of the constitution, in 1998, was viewed as an opportune moment for reflecting on the capacity of Spain’s asymmetrical federalism to promote the self-government of its minority nations. Finally, the beginning of ETA’s ceasefire on 18 September 1998 removed the threat of violence from the public sphere. In the months leading up to the twentieth anniversary of Spain’s constitution, the ruling nationalist parties in the Basque Country (Partido Nacionalista Vasco (PNV)), Catalonia (ConvergPncia i Unió (CiU)) and Galicia (Bloque Nacionalista Galego (BNG)), joined forces in an effort to promote a re-reading of the constitution that would recognize what they termed the “plurinational” nature of the Spanish state. Their public agenda was made known through the “Declaration of Barcelona” (16 July 1998) and the “Santiago Agreement” (1 November 1998). The first of these called for a public debate on a new political culture that recognizes and supports the plurinational character of the Spanish state. The Santiago Agreement made clear that the three nationalist parties sought “a change in the centralist and non-autonomist interpretative criteria used by the state legislators and supported, in general terms, by the Constitutional Court, that has resulted … in the negation of the exclusive competencies of the autonomous communities”. Instead, they demanded an “enhanced re-reading of the Constitution that guarantees the juridico-political recognition of the national realities [of the Basque Country, Catalonia and Galicia] without excluding the possibility of reform”. For these three historic groups, a plurinational Spain is one in which all minority nations coexist equally with the Spanish nation. They argue that this perspective in no way challenges Article 2 of the constitution, which recognizes that Spain is a nation of nations. Plurinationalism also promotes the notion of shared sovereignty and exclusive competencies. Similarly, in their opinion, Spain could cede authority to the governing structures of the Autonomous Communities so that they could enjoy exclusive competencies in matters such as: public security; tax-regulating and tax-raising powers; language and culture; increased judicial competencies; local administration; natural resources; and representation in international fora. They envision a federal structure that recognizes the sovereignty of each constituting nation. The coalition of nationalist parties has argued that increased federalism can be achieved through the constitution itself, using Additional Provision No. 1 (see Section 2, above). There have been two types of response to the demands for increased federalism on the part of Spain’s three historic minority nations. There was, first, the response by the leadership of the ruling Partido Popular—and echoed by the socialist opposition, Partido Socialista Obrero EspaZol (PSOE)—that the constitution is not to be tampered with in any way. The Spanish Prime Minister, José María Aznar, dismissed the possibility of re-reading the constitution, and criticized nationalist parties for promoting irresponsible ideas that would affect Spain’s fundamental institutions (El País, 4 November 2000). Second, there has been a response from other Autonomous Communities anxious to avoid any move on the part of the Basque Country, Catalonia and Galicia to acquire further powers. For example, the Presidents of three Autonomous Communities (Andalucia, Castilla-La Mancha and Extremadura) signed the “Declaration of Mérida” (6 October 1998) in opposition to the pacts signed by the nationalist parties. Reaffirming their support for the constitution, the three Presidents underscored that there exists “no natural right, neither a priori nor a posteriori to the Constitution, that can be invoked to justify granting privileges to certain territories or creating inequalities among Spaniards”. The climate for public discussions on the constitution and plurinationalism changed dramatically on 3 December 1999, when ETA broke its ceasefire. Between December 1999 and December 2000, 23 people were killed by the terrorist organization and scores of others injured. Given the threat to public security posed by ETA, the Partido Popular government is not prepared to discuss any moves towards increased federalism in the Basque Country, Catalonia and Galicia, since many Spaniards would view this as a further destabilization of the state. According to an opinion poll published at the end of 2000, a vast majority of Spaniards stated that they considered terrorism to be one of the principal problems in Spain. In 2000, the Spanish government came under severe criticism for its strategy of dealing with ETA. Its strategy is to refuse any negotiations not only with ETA and its political wing Euskal Herritarrok, but also with any Basque political party that has signed the “Pact of Lizarra-Garazi”. This pact, signed by political parties and associations of the Basque Country on 12 September 1998, states that any peace negotiations between the Basque Country and Madrid must be open-ended—that is, they must not stop short of Basque independence, if that is the most viable solution to the problem. Many politicians, political commentators and intellectuals across Spain have publicly called for dialogue as the only way to combat terrorism. Although the Spanish public is highly mobilized in its public demonstrations against ETA, it is felt that some more concrete action is required. Towards that end, the year 2000 concluded with the government attempting to regain public confidence by signing an anti-terrorism agreement (The Agreement for Liberties and against Terrorism) with the opposition party PSOE. Other parties and sectors, such as labour and business, are also considering signing the pact. However, despite requests, the ruling nationalist party in Catalonia, CiU, has refused to add its name. 4. Sources for Further Information Agranoff, Robert (ed.), Accommodating Diversity: Asymmetry in Federal States, Baden-Baden: Nomos, 1999. Agranoff, Robert and Rafael BaZón I Martine (eds), El Estado de las Autonomias: Hacia un Nuevo Federalismo?, Vitoria: Administración de la Communidad Autónoma de Euskadi, Instituto Vasco de Administración Pública, 1999. Agranoff, Robert and Juan Antonio Ramos Gallarin, “Toward Federal Democracy in Spain: An Examination of Intergovernmental Relations”, Publius: The Journal of Federalism, Vol. 27, No. 4 (1997). Gibbons, John, Spanish Politics Today, Manchester: Manchester University Press, 1999. Gillespie, Richard, Jonathan Story and Fernando Rodrigo, Democratic Spain, London and New York: Routledge, 1995. Moreno, Luis. The Federalization of Spain, London: Frank Cass, 2001. Newton, Michael T. (with Peter J. Donaghy), Institutions of Modern Spain: A Political and Economic Guide, Cambridge: Cambridge University Press, 1997. Requejo, Ferran and E. Fossas (eds), Asimetría federal y estado plurinacional. El debate sobre la acomodación de la diversidad en Canadá, Bélgica y EspaZa, Madrid: Editorial Trotta, 1999. Requejo, Ferran (ed.), Pluralisme nacional i legitimitat democrBtica, Barcelona: Editorial Proa, 1999. Requejo, Ferran and U. Preuss (eds), European Citizenship, Multiculturalism and the State, Baden-Baden: Nomos, 1998. Requejo, Ferran, Zoom Polític. DemocrBcia, Federalisme i Nacionalisme, des d’una Catalunya europea, Barcelona: Editorial Proa, 1998. —, Federalisme, per a quP?, Valencia: Editorial tres i quatre, 1998. http://www.la-moncloa.es/ (in Spanish) Spain in Figures, 1999. Available at: http://www.ine.es/espcif/espcifin/espcifin.htm http://www.spainemb.org/information/constitucionin.htm Partido Popular: http://www.pp.es/index.asp Partido Socialista Obrero EspaZola: http://www.psoe.es/NuevasPoliticas-NuevosTiempos/home.htm Partido Nacionalista Vasco: http://www.eaj-pnv.com/homecas.htm ConvergPncia DemocrBtica de Catalunya: http://www.convergencia .org Unió DemocrBtica de Catalunya: http://www.unio.es Bloque Nacionalista Galego: http://www.bng-galiza.org Notes * The author and the Forum of Federations would like to thank Ferran Requejo, Professor of Political Science, Pompeu Fabra University, Barcelona, for his helpful comments on this article. 1. As noted above, Spain is divided into municipalities and provinces, as well as the Autonomous Communities. The provinces are territorial units that were established in the nineteenth century. Historically, each province was run by a diputación, a delegation from Madrid, and some of these bodies still exist. 2. It appears from this that the role of the Autonomous Communities is limited in the amendment process—Article 87.2 states only that “the Assemblies of the Autonomous Communities may request the Government to pass a bill or refer a non-governmental bill to the Congressional Steering Committee and to delegate a maximum of three Assembly members to defend it”.