27 September 2021
The President of the Government, Pedro Sánchez during the Conference of Presidents held in Salamanca in July JUANJO MARTIN / POOL / EFE
There are indications that seem to point to a change in attitude in relation to jurisdictional disputes between the Government and the autonomous communities before the Constitutional Court. More than half of the procedures initiated by the central government against legislation promoted by some community, around 102 this legislature, have been suspended after reaching a partial or total agreement. This has also happened regardless of the party or coalition that governs each of the communities. The different administrations are assigned their own role, but the political tension around the limits of the different powers transferred should not end up being routinely resolved before the Constitutional Court. The pandemic could be an accelerator of that cornerstone in a federalizing system.
The count carried out by the Ministry of Territorial Policy indicates that the Government has made 25 challenges before the Constitutional Court against the 145 appeals that the Executive of Mariano Rajoy activated during the eight years of his mandate. They are not conclusive data, given the different temporal magnitude that they evaluate, but they are welcome if this contention is maintained and negotiated compromises are sought. This avoids confrontation with the communities on account of the powers and reduces abusive litigation. The confrontation over jurisdiction issues practiced by previous governments led to a distortion that moved away from politics what is part of its very nature, that is, the agreement between administrations with an eye to the general interest and not partisan advantage. The persistence of recourse to the Constitutional Law by the PP was a frequently contested practice and could give rise to situations that are difficult to understand, such as the different criteria applied to identical articles in the Statutes of some and other communities. To avoid this temptation means to reinforce the governance of the State without a hierarchical structure of the administrations and to favor a management inspired by the defense of the common interest.
Some recent cases are illustrative, such as the challenge to the law approved by the Parliament of Catalonia that regulates the income derived from the rental of housing, which has continued after the failure of negotiations with the Generalitat, while the dispute with Galicia over the decision to sanction those who refuse to receive the covid vaccine has been resolved in an agreement with the Xunta. Recourse to judicial review of powers is a tool in the hands of the Executive if it considers that the communities exceed their powers (or the autonomies judge that the Government exceeds theirs: in the current legislature, only eight resources have been promoted by the communities). But the vicious use of this route devalues its specific objective and turns a legitimate resource into a gesture of political overtones rather than an instrument for resolving a conflict of jurisdiction. Recourse to the courts should be the last way out after exploring all possible solutions. The negotiating will of both parties indicates a deeper understanding of the nature of the conflicts between communities and the Government and reinforces the very sense of the State of the autonomies that derives from the Spanish Constitution.