THE STATUTES OF AUTONOMY AS REGULATIONS AGREED ON BETWEEN THE CENTRAL GOVERNMENT AND CENTRAL INSTITUTIONS AND THE AUTONOMOUS COMMUNITIES
Despite the important constitutional functions of the statutes of autonomy, neither the autonomous communities nor the autonomous-community-based political parties (both the parties that are not Spanish-wide and territorial branches of state-wide parties) hold the original constituent power, the power to approve and reform their own constitutions unilaterally.
The statutes of autonomy may have consequences for Spain as a whole that state constitutions in other federations do not, yet as a highly relevant counterpoint, the statutes of autonomy are rules that have to be negotiated with central institutions, which at the end of the day have to approve them, both initially and when they are up for reform. The autonomous communities have a considerable capacity for promoting the reforms and a significant negotiating role throughout the process of reform, and in certain cases their citizens participate in the final approval of the reforms by way of a referendum. Yet the reforms require the consent of the Spanish Parliament, which has to approve them as its own laws.17It is important to note that the statutes do not require highly qualified majorities for approval by the Spanish Parliament, just an overall majority. Thus, and given the fact that the two main state-wide parties tend to win around 90 percent of the seats in the Spanish Parliament, a statute can easily be passed with the votes of the representatives of only one of the two Spanish-wide parties, with the remaining necessary votes coming from minor parties. In contrast, the reform of the Spanish Constitution requires highly qualified majorities and in practice, given the composition of the Spanish Parliament, an agreement between the two Spanish-wide parties. However, the procedures for drafting and approval of the statutes of autonomy are regulations agreed on between the central government and the particular autonomous community.
From a legal viewpoint, they are at the same time Spanish regulations (acts of the Spanish Parliament) and the autonomous community’s regulations.Certainly, the practical importance of this capacity to make proposals cannot be minimized, since it allows the autonomous communities to initiate the process of establishing and reforming their statutes at the moment they consider most appropriate, and if the proposal for reform that they put forward has strong political and popular support, in practice they can exert an important influence on the central institutions’ final decision. Indeed, these institutions can block the process if they disagree with the proposed reform, completely or partially, although this may come at a high political price. This may explain why, in the recent round of reforms initiated in 2003, the Spanish central government has attempted to present the debate on the reform proposals in the Spanish Parliament not as a political debate but rather as a legal and constitutional debate. The central government has not defended its position on the basis of political arguments – for instance, arguments concerning the interests of Spain as a whole against those of the autonomous communities or a refusal to accept a certain degree of asymmetry. Instead it has preferred to argue whether the proposals were constitutional or not. This strategy has greatly distorted the debate over the reforms. From this legal-constitutional perspective, the Spanish central government has refused to deal with the Basque Country’s reform proposal (the so-called Ibarretxe Plan) and has introduced a large number of amendments to the reform proposal for Catalonia.
However, since the autonomous communities have the power only to propose statutes and their reform, it is misleading to refer to the “dispositive principle” in describing the extent to which the Spanish territorial model leaves to the autonomous communities the capacity to shape constitutional arrangements.
The autonomous communities in actuality do not stipulate or decide anything, they merely propose. To be accurate, the expression “dispositive principle” should be replaced by “propositional principle.” Those who currently are proposing reforming the Spanish Constitution in order to remove the dispositive principle are not strictly speaking trying to prevent the design of the territorial power structure from being at the free disposal of the autonomous communities (something that is forbidden by Spanish ordinance). Rather, their aim is to ensure that the autonomous communities are unable to provoke the tensions with central institutions that can undoubtedly be produced when they ask them to debate a reform proposal that may affect the whole country (even if only every thirty years, as in the case of Catalonia or the Basque Country). Nor can one exclude the possibility that they wish to prevent frictions between the central and the autonomous community’s branches of the Spanish-wide parties, or to put it more clearly, to prevent the autonomous communities’ branches from acquiring an excessive prominence within the political parties’ central apparatus.18In assessing the consequences of the hypothetical suppression of the autonomous communities’ power to reform statutes of autonomy, and more generally, their capacity to institute bottom-up reform, one must also note that in Spain reform of the statutes of autonomy provides the only way that the autonomous communities are able to participate, even indirectly, in the reform of the Spanish Constitution. This is another way in which the Spanish system differs from those in most other federal states, where the member states have important prerogatives when it comes to federal constitutional reform. In Spain, the 1978 Constitution does not envisage any mechanism for the participation of the autonomous communities – beyond that of the power to present the Spanish Parliament with a proposal for reform of the Constitution. Among other reasons, this is because when the Constitution was drafted, it was not known what autonomous communities there would be, or even whether there would be any at all. The power to propose the reform of the statutes of autonomy, with possible indirect repercussions on the Spanish Constitution, can thus be considered “compensation” for the lack of significant participation of the autonomous communities in the reform of the Constitution, or, to put it in a better way, it can be considered a way of guaranteeing a totally reasonable participation in the reform of the system of political decentralization.