THE STATUTES OF AUTONOMY AND THEIR REFORM AS A PRIVILEGED PROCEDURE FOR SPECIFYING AND ADAPTING THE CONSTITUTIONAL SYSTEM OF TERRITORIAL POWER DISTRIBUTION
In Spain, as in all federal or politically decentralized countries, the provisions of the Spanish Constitution regulating the territorial power structure have required a further infra-constitutional specification of the various possibilities that the constitutional texts leave open and further changes to these specifications in order to adapt them to constantly evolving social, political, and economic circumstances.
This has been done both “top down” and “bottom up” using both de facto and legislative processes. The most distinctive aspect of the Spanish system derives from the importance acquired by the statutes of autonomy, first in completing the content of the constitutional text and concretizing general aspects of the Spanish Constitution related to the territorial power structure, and then in adapting them. It was these statutes of autonomy, at the end of the 1970s and the beginning of the 1980s, that gave form to the system of political decentralization that was referred to only as a possibility by the Spanish Constitution. Likewise, it is these statutes of autonomy that at the end of the 1990s and into the twenty-first century have adapted fundamental aspects of the system to new circumstances. Their leading role derives in the first place from the aforementioned “deconstitutionalizing” of the territorial system, as well as from the open texture of the rules set out in the Spanish Constitution and the leading role that the Constitution gives to the statutes of autonomy in terms of consolidating and adapting the Spanish system of political decentralization.In reality, the Spanish Constitution does not identify how many autonomous communities there are or specify their powers or fully specify the powers of the central government and institutions or determine the system of public finance. In fact, under the 1978 Constitution the system of political decentralization as a form of territorial power organization might not have become a practical reality if those authorized to initiate the process of converting themselves into autonomous communities had not availed themselves of this opportunity.7 The task of giving specificity to these provisions was passed on to the statutes of autonomy of each autonomous community, to be drawn up once the Spanish Constitution had been approved.
By failing to specify key aspects of the territorial power structure and deferring their specification to the statutes of autonomy (with the ever-open possibility of reform through this avenue), the Constitution in essence ensured the special constitutional position and unique legal nature of these statutes, encouraged bottom-up reforms, and ceded to the autonomous communities a leading role in the development of the Spanish Constitution.Spanish academics8, as well as the case law of the Constitutional Court,9 tend to consider this prominence to be a result of the so-called dispositive principle, which is one of the fundamental principles of the Spanish political system and which, according to its detractors, leaves the decentralized territorial system or structure permanently open and at the “disposal” of the autonomous communities. Some prominent authors affirm, with scarcely veiled irony, that this principle constitutes the great contribution of Spanish constitutionalism to contemporary constitutional law.10 Today a wide spectrum of political, media, and academic commentators in Spain demand the suppression of this principle. Although the premises of this diagnosis – namely, those that attribute very special prominence to the statutes – are perfectly true, two important qualifications should be noted: first of all, these premises must be nuanced; and second, the conclusion one can drawn from them – that the system is at the “disposal” of the autonomous communities – is rather problematic.11
Although Spain’s constitutional arrangements share characteristics that give the autonomous communities and the reform of their statutes of autonomy a special prominence in terms of changes to the territorial power structure, careful analysis is needed to precisely determine their actual effects. In particular, one must consider (1) what constitutional functions and matters of specification and reform are reserved to the statutes of autonomy, (2) which legal responsibilities fall to the autonomous communities and which to central institutions in terms of these reforms, and (3) what role in practice has been played by central institutions and the autonomous communities – and their corresponding political forces – in drafting the initial statutes of autonomy and in the two reform processes, at the beginning of the 1990s and currently.