The Spanish Constitutional Court shortens the current Catalan Statute of Autonomy

The conservative and Spanish nationalist People’s Party (PP) appealed to the Constitutional Court four years ago, stating that 113 articles of the 221 of the new Statute of Autonomy were unconstitutional. This appeal was presented 1 month after the Catalan people had voted in a referendum, approving Catalonia’s new main law with 74% of the votes.

The new Statute of Autonomy had undergone all the steps stated in the Constitution for its approval. The first draft was firstly agreed and approved by the Catalan Parliament in September 2005. In November, the Spanish Parliament accepted the text and debated its contents. The draft was modified and approved, firstly by the Constitutional Committee of the Spanish Parliament and secondly by the plenary of the Parliament. Only the PP voted against the Catalan Statute of Autonomy. The text of the Statute of Autonomy was then presented to the Catalan people who were asked to vote on it in a binding referendum on the 18th of June 2006. These are the steps written in the Spanish Constitution in order to renew the Catalan Statute of Autonomy. However, the PP did not agree on its content and, not being able to win the debate in the respective Parliaments and in the referendum, it wanted to win in the court. The People’s Party presented this appeal and created an unprecedented and deep political problem, confronting the peoples’ will to the Constitutional Court.

The main objections were on 5 areas:
- Catalonia being defined as a nation in the non-legally binding introduction
- the right of the Catalan Government to have a bilateral relation with the Spanish Government, similar to what the Basque Country and Navarra already have
- the obligation to know Catalan language in order to work in the public sector
- the Catalan Supreme Court of Justice as the highest court for certain kinds of laws
- the obligation by the Spanish Government to a necessary expenditure in Catalonia and a conditional fiscal equalization

Basis of the Court’s legitimacy crises

This sentence has been waited on by Catalonia with great debate during the last 4 years. In the meanwhile, the Statute of Autonomy has entered into force and its content has been developed through 45 new laws and further political agreements. The rest of Spain was more indifferent to this waiting time, except for the Spanish nationalists. Two blocks have been created in these 4 years of delay, which have grown with each episode of the never-ending story of waiting for this sentence. On one side: the Spanish Nationalists represented by the PP, with the silent agreement of one important sector of the Spanish Socialist Party (PSOE), the party of Prime Minister Zapatero. It has to be noted that the PSOE voted on the text of the new Statute of Autonomy in the Spanish Parliament after having modified several articles of the original draft during its debate, the silent sector included. On the other side, almost the entire spectrum of the political parties in Catalonia, which represent 90% of the total members of the Catalan Parliament. This heterogeneous group consisted of Catalan independence supporters, Catalan moderate Nationalists, Federalists and Autonomists, covering the entire Left-Right spectrum.

During these 4 years, the Constitutional Court has been in the centre of deep and wide controversies, as the political parties were playing with its composition with the complicity of the Court’s members. The People’s Party (PP) forced the retirement of 1 of the initial 12 magistrates as he wrote a report for the Catalan Government several years ago. It has to be said that the Members of the Constitutional Court are supposed to be elected for non-renewal mandates of 9 years on the basis of their recognised law expertise, says the Spanish Constitution. With this alteration in the Court’s composition, the conservative and Spanish nationalist sector had the majority. The Catalan Government asked for the retirement of 2 of the conservative judges, but it was not approved. In addition, 1 magistrate died, belonging to the conservative sector. With this panorama, 10 magistrates were to decide on the Catalan Statute of Autonomy. However, the mandates of 4 of them was to expire in November 2007. The PSOE and the PP were not able to agree on any candidate to renew the Constitutional Court, as the Right-Wing PP did not accept any other candidates but the ones proposed by them, making any negotiation impossible. The Socialist Party (PSOE) and Prime Minister Zapatero forced the modification of the Organic Law ruling the Constitutional Court to extend the expired mandates of the liberal President of the Court and the 3 other judges. With this lack of agreement by the two main Spanish parties and the extension of the 9 year-mandate stated in the Constitution, voices started raising, denouncing the lack of legitimacy of the Court.

An unfruitful and shameful spectacle

The Court that decided on the political future of Catalonia and the entire Spain consists of only 10 magistrates of the 12 the Court is supposed to have and 4 of them being in their 12th year of mandate (when according to the Spanish Constitution the mandates last 9 years). In addition, the minimum quorum the Constitutional Court needs to have in order to be operational is 8 magistrates. Since 2006, there have been 7 different drafts of a sentence. The first 5 were written by the liberal magistrate Emilia Pérez Vera, who was not able to build a majority to back the sentence. Each draft was tougher than the previous one, each time more restrictive to positions on Catalan nationalism and closer to those of Spanish nationalism. However, two blocks of magistrates were formed: 4 liberals on one side (counting the President) and 6 Spanish nationalists on the other. After the 4th unfruitful try to vote on a sentence, in late 2009, wide and great criticism was heard, coming from all the sectors but especially from Catalonia. An unprecedented editorial from all the Catalan newspapers was issued the same day, asking to respect Catalonia’s “dignity”. A last chance was given to Pérez Vera for a new draft. It was voted on in April but failed. Considering this unavoidable draw, the writing of a new draft was given to the Court’s Vice President, the conservative Guillermo Jiménez, in early Spring. However, he was not able to gather enough support as he was losing magistrates on one side while he was winning magistrates on the other.

On this basis, the last few months the Catalan Government has pushed for an urgent renewal of the Court. The PSOE and the PP firstly rejected it almost without debate and, some weeks later, accepted to start talking about it, although it remained blocked. Furthermore, the Catalan Government then asked the Court to declare itself incompetent to issue a sentence.

Meanwhile, on the 19th of May Jiménez abandoned his draft, the 6th try. Before this shameful situation and with a discredited Court confronted to loud and wide criticism, its President, Mari Emilia Casas, decided to assume the drafting of the sentence herself. Last week a plenary was held but magistrates were not able to reach any agreement. Casas was pushing to vote on the sentence in blocks, as an unprecedented measure to skip the institutional paralysis. Many law experts alerted of such a measure, as the final sentence may loose coherence. They also argued that it could be too conditioned by the opinion of one single judge, Manuel Aragón, who would act as the bridge between the 2 blocks, voting some times with the liberals and some others with the conservatives.

When the 7th draft seemed to be discarded, Casas introduced some last minute light changes during the weekend, especially regarding the aspects of nation, language and fiscal equalization. The magistrates had quite a consensual position around the aspects that affected justice. Critics say that this consensus is the fruit of a corporative approach, defending their own interests and the ones of their colleagues.

The details of the sentence

With these last changes, Casas has pushed for a last vote. In addition she has divided the voting into blocks. However the blocks were not thematic, the blocks were on the introduction defining Catalonia as a “nation”, the articles to be eliminated, the articles to be reinterpreted, and the articles that remain without any modification.

The introduction has been modified, with 6 votes against 4. This introduction was not legally binding and was agreed by Spanish Prime Minister Zapatero himself with the leader of the Centre-Right Catalan Nationalist Party. It said that “the Catalan Parliament has defined Catalonia as a nation” regarding Catalonia’s “national reality”. The Constitutional Court states that Catalonia “is a nationality” within “the only and indissoluble unity of the Spanish nation”. With this definition, the Constitutional Court bans the idea of Spain being a nation of nations, a plurinational state such as the United Kingdom. The liberal magistrates were maintaining the idea that the Spanish Constitution was clear enough on this issue and that the Catalan Statute of Autonomy did not represent any threat to this unity. The conservative sector saw a future danger and wanted to make this point very clear. The political consequences of this point are uncertain, as Catalonia takes this as an insult to its collective feelings and to the will of its people, who clearly think of Catalonia as a nation.

The block of 14 articles declared unconstitutional refers largely to powers on Justice. The Court seems to protect its own corporate interests as judges and has banned the Justice Council of Catalonia, which had to be created. This new body would control judges in Catalonia. In addition, it has also eliminated the article stating that the Catalan Supreme Court will be the highest court for some kind of laws. It has to be said that, since Medieval times, Catalan civil law has been completely different from the rest of Spain’s civil laws, which have followed the Castillian tradition. This independent Catalan civil law has survived dictatorships and absolute kings. On this base, for instance, the Statue of Autonomy wanted the Catalan Supreme Court to be the highest court for civil law. The Constitutional Court has said “no”.

Another important point the Court has eradicated refers to the money Catalonia transfers to other autonomous communities and the expenditure the Spanish Government makes in Catalonia. Inspired by the German federalist model, the Statute of Autonomy was putting some conditions to fiscal equalization (the mechanism that ensures poorer regions will receive money from richer regions, such as Catalonia). The main condition being that Catalonia does not make too large of an effort and that the other autonomous communities have to also be as generous as Catalonia. The Court has eliminated this point. Besides, there was an additional disposition guaranteeing that the Spanish State will invest a minimum amount each year in Catalonia, as Catalonia has had a significant investment deficit for many decades, especially in infrastructures, recognised by almost all parts but whose quantity has never been agreed on.

Some weeks ago, rumours were saying that the Court would ban the Catalan linguistic model, which has been displayed as a peaceful example of bilingual community by the EU and UNESCO on several occasions and from which is the fruit of the 1979 Statute of Autonomy. If these rumours had been confirmed, it would have meant returning on this issue to the situation before 1979. Conservative magistrates were pushing for this. At the end, the Court only cut the norm, making the Catalan language “the main” language used by the public administration and by public media. However, it did not touch the Catalan linguistic model, which is especially significant in schools and has given excellent integration results.

Finally, the “historical rights” of Catalonia have not been recognised and have disappeared from the Statute. The Spanish Constitution talks about historical rights but it does not clarify which communities have them. It only mentions Navarra, however it does not exclude recognising others. Other articles modified refer to the savings banks, which are the main financial institutions in Catalonia, and some exclusive competences.