JAUME PI – 27/11/2019
The bases of the territorial organization of Spain are found in the Title VIII of the Constitution. That is why the Vice-President of the Government, Carmen Calvo, refers to this twenty articles (from 137 to 158) to delimit the dialogue with the Generalitat. You can talk about everything that is included in this Title, says Calvo; outside of it there is nothing to discuss with independentism.
The message is addressed to ERC and independence in general, which aims to be able to include in the negotiations on the Catalan crisis – linked to a possible investiture by Pedro Sánchez – the possibility of a referendum on self-determination in Catalonia. As is well known, the Constitution does not allow such consultations and, within the Title VIII, it is only possible to discuss competences within the current Autonomous State.
It would not be an exaggeration to say that this Title is the most controversial and discussed Title of the Constitution. It is logical: the lace of the territories in the state is one of the great heels of Aquíles of contemporary Spanish history and, without going any further, has been the cause of the biggest constitutional crisis in 40 years. There is no better evidence of this than article 155, first applied in October 2017 in response to O-1, and is indeed part of Title VIII of the constitutional text.
The Vice-President Calvo refers to the Title VIII to set the boundaries of negotiation with the independentists
But the eighth title goes far beyond the intervention of autonomy. In fact, the central core of these articles is to define the construction of the Autonomous State that is enshrined from the preliminary title. It is the well-known article 2 that sets out the “indissoluble unity of the Spanish Nation” but also that the Constitution “recognizes and guarantees the right to autonomy of the nationalities and regions that comprise it and solidarity between all of them”.
That said, it is noteworthy that the Constitution does not specify the model of the State. Any name (Autonomous State, State of Autonomy, Regional State or Federal State, among others) is a subsequent theorization and, in any case, the Constitutional Court, when it has ruled, has opted for the name “State of Autonomy”, which is probably the name most faithful to the article 2.
The Constitution does not specify the model of a State; only the Constitutional Court has subsequently called it ‘State of Autonomy’
The first article of Title VIII, the 137th, speaks openly of the Autonomous Communities as one of the three territorial levels in which the State is divided alongside municipalities and provinces. The article 138 also refers to the article 2 because it stresses that between communities the “principle of solidarity” must govern and that differences between Statutes may never involve “economic or social privileges”.
The article 139 abounds in these principles and sets equal rights and obligations of citizens in any part of the territory, as well as prohibiting the establishment of barriers to the free movement of persons and goods. They are key articles because they are at the heart of the debate and controversy when discussing the lace of Catalonia or the Basque Country in Spain: it is usually common that from constitutionalist parties it refers to solidarity between Autonomus Commnities to challenge the nationalist claims.
The Title VIII established two paths to autonomy: the ordinary path, in the article 143, and the called fast track, in the article 151, and which Andalusia embraced to achieve the same level of competence as the historical territories
The second chapter (from 140 to 142) briefly defines the local world and its different levels, differentiating here between the municipalities, the provinces and also the island lobbyists in the cases of the Balearic Islands and the Canary Islands. But it is already in the third chapter that the Constitution stops at the Autonomous Communities and at this point, things get complicated.
The Constitution devotes up to 15 articles (from the 143 to 158) to, inter alia, to lay down the rules of the constitution of communities (143-144), expressly prohibit union or federation between communities (145), define the Statutes as a basic rule of the Autonomy (146), delimit the competences of the State and the Autonomus Communities (148-149) or establish the basic mechanisms for the transfer of State competences (150).
It is necessary to stop in the next article on the list, because it was key to the autonomous construction. The article 151 is the one that sets the so-called fast way of access to the autonomy, and in that it differs from the article 143, which establishes the most ordinary route and to which most communities have embraced. It was an article planned for the historical communities that had their own Statute in the Second Republic, and therefore the mechanism used, through a transitional provision, by Catalonia, the Basque Country and Galicia.
But there was a fourth Autonomus Community that embraced the article 151: Andalusia. The Andalusians did not want the ordinary route that forced them to wait five years to achieve the same level of competence as the historical ones and so voted in a referendum in 1980. Some experts have identified this episode as the inauguration of the so-called “coffee for all”, that is, the philosophy of equating all the autonomous processes that would be consolidated in the later LOAPA (Organic Law Harmonizing the Autonomic Process). Thus, between 1979 and 1983, the current 17 Autonomous Communities were formed.
The articles 148 and 149 differentiate the “exclusive” competences of the State and the competences that the Communities may have
It is also necessary to go back to take a closer look at the articles 148 and 149, which distribute the powers of the State and those which may correspond to the Autonomus Communities. The nuance is important because the article 149 sets the “exclusive competences” of the State, while the article 148 sets a competitive cap to which the Communities aspire. Foreign affairs, defence, justice or authorization for consultations are some of the more than 30 subjects that the State has reserved as exclusive competences.
They are fundamental and highly controversial articles because one of the most common debates around the Constitution has been on the matter of jurisdiction. Experts and politicians have pointed to the need, if the constitutional melon is opened, to more precisely delimit the powers of the different administrations, especially if we want to delve into the federal road. Not for nothing, the conflicts of competence have been one of the main – and sour – disputes that the Constitutional Court has had to address in these 40 years.
Finally, the last articles of Title VIII regulate the control of the Autonomus Comminities by the central State (153), the figure of the Government Delegate (154), the exceptional intervention of Autonomy (the famous 155) or shallow financing mechanisms (156 to 158).