To celebrate the 36th anniversary of the Constitution, THE WORLD brought together four prestigious lawyers to provide concrete ideas on reform. Moderated by Victoria Prego, teachers Santiago Muñoz Machado, Jorge de Esteban, Francesc de Carreras and José Ramón Parada discuss solutions to the problem of Catalan independence, the division of powers between the state and the autonomous communities and the functioning of institutions.
1. THE REFORM AND THE CATALAN PROBLEM
Santiago Muñoz Machado -. The 1978 Constitution has parts of undeniable quality They have been very useful for coexistence: Preliminary Title on general concepts, principles, the full range of fundamental rights … Other parties, however, were poorly raised. It is the case of the organizational part of the state, not only with respect to Title VIII, which refers to the territorial diversity, but also as regards most of the institutions. There is almost no institution that does not need a touch on his constitutional approach, starting with the Crown with the issue of succession.
Normally constitutions do not last whole without modification takes as long as ours. To endure a Constitution needs to be adapted to their time . It seems inevitable reform. Bring legal certainty which now have poca-, tranquility and exciting programs. Because Spain has no project that excites, unlike fragments country like Catalonia, the Catalan nationalist, which does have projects that have managed to delude the population.
A reform what extent? What political forces den yes, the pact allows. Of course, what to tweak is the Title VIII of the Constitution. And to be solved within the framework of this reform is the Catalan problem. Although there are views that would not be good amend a constitution urged by Catalan nationalism, I think it is a problem to be addressed, not carried away by the sovereignist claims but to try to give an answer that satisfies and mobilize the party Catalan people who disagree with the independence movement. And I think you have to undertake the reform sooner rather than later, because after the next general election will be more difficult.
Jorge de Esteban .- Much of what is happening today, and especially the growth of Catalan separatism and depletion of the Autonomous State, has a specific cause: not wanting to amend the Constitution in time due . Constitutions are reformed for three main reasons: to correct technical defects, to accommodate to changing times and to allow successive generations feel partners of the standard. But to change the constitution first thing to do is break the lock: if Article 168 is not changed’re talking about divine matters. Under that provision, the reform of the Preliminary Title [principles and model of state] First Title [fundamental rights and duties] and Title II [the Crown] needs a two-thirds majority in both chambers, dissolution of parliament and new elections , ratification of the reform by the new Cortes also by two-thirds and referendum. This is done to never use it.
Francesc de Carreras -.. The constitutions need to be altered as little as possible, only when they want to reform the current Constitution prevents and when the need for such change has been noted for a long time. Are we in this situation? I think so. There are aspects of the Constitution which have to be modified, singularly in the territory and the functioning of democracy, because the parties have monopolized the institutions.
As to whether the Catalan problem could be solved with a reform of the Constitution, it is obvious that the sector of the Catalan population that wants independence does not want to reform the Constitution, he wants to make a Catalan establishment of an independent state. People who would be in an intermediate position which are numerosísimas-, whiny current position of Catalonia within the State of Autonomies, you could do them any constitutional amendment that would satisfy them, although I have my doubts that this is resolved Thus. I rather inclined to separate the Catalan problem of constitutional reform. If you opt for one based on mechanisms such as the Law of the Canadian Clarity [federal law passed by the Parliament of Canada in 2000 where conditions are needed solution for the Government of Canada enter into negotiations on secession one of the provinces], it would be a law and therefore would not require amending the Constitution.
José Ramón Parada -. The Constitution of 1978, which brought the democracy-something priceless, of course-is poorly designed because no account was taken of the Spanish liberal tradition. The territorial model has led to a mammoth government and created the problem of Basque and Catalan separatism. If the Basques now are not protesting is because we chulean fiscally other Spaniards.
I agree with Carreras in which change the Constitution does not solve the problem Catalan . And those who are not in favor of separatism in Catalonia are not expecting any constitutional reform that can excite them, the question is not to give more powers to the Generalitat. This is not fixed by putting more fuel, more fire cause.
Mary Peral.- If the problem is not fixed Catalan amending the Constitution, how manages?
J. RP – It manages to resist
M.. Q Without changing anything?
J. R. P .- Of course. What happened in 34? They revolted and the army sent there. Now they are not going to revolt, because this is a liturgical procession rebellion.
F. C .- The Catalan problem is solved only by a democratic process. The independence legality jump is continually jump. But there is a vague idea that it is democracy that must decide. That is, when we say “is the Catalan people must decide”, indeed one is skipping the Constitution, no doubt. But the Catalan people should be involved in this decision that concerns everyone.
I think the rest of Spain can understand that a large majority of part of its territory I say large majority want to separate after an argument which has not yet been produced-, after a discussion argued that the parties are expressed in equal, a debate that enables people know what it means separation from Spain, this is also part of a European debate least …. After all this you have to Vote. The Catalan people have to vote, you must say what you want.
Victoria Prego .- now can not.
F. C .- I maintain the position that, without changing the Constitution, you could do a consultative referendum in Catalonia with a clear question: Do you want Catalonia to be independent and separate from the state? Naturally, there would be a referendum on self-determination, but advisory.
Many of the doctrinal views uncontaminated by the current case but issued before 2000, considered that Article 92 of the Constitution ['Political decisions of special importance may be referred to a consultative referendum all citizens'] allows a territorial referendum, without going throughout Spain. This would be the only thing that would legitimize a new Catalan situation.
It is very dangerous condition a constitutional reform to be happy Catalans, because it might spoil it for all without having satisfied neither the Catalans immediately complain saying this is not enough, and so on. The Catalan singularity-a special treatment for Catalonia beyond what already exists in terms of language or Civil-law I do not see or think politically acceptable for the rest of Spain. I would not consider it fair to have different status within a state.
S. MM The stationary position according to which we should not do anything He also says in the world of politics “rot”, “already faint” – assume that there is a part of the territory of Spain which means 20% of GDP, where there are well educated and very worthy citizens, which is outside the Constitution, laws and courts. Today there there is no law reference, are governed by staff discretion of the rulers, which is distinct rising each morning.
Is it possible to maintain a state for a long time? Is it irrelevant that no known such an important part of the territory legality or need to remedy? has to react depends on the violence that are breached and the general rules that govern us desconsideren. If there comes a time when such disregard is high, to the point of creating their own tax administration which are in the way- or police system itself, tougher enforcement measures are required. But you have to restore legality and provide Catalonia with a Constitution and a statute, because the Constitution and the Statute despise apply only when it suits them.
Regarding the territorial referendum posed Francesc de Carreras, believe that to do so would have to amend the Constitution and even think it would be a territorial referendum in certain circumstances, even by amending the Constitution, because the fragmentation of part of the State to establish their own state is not a constitutional amendment, is a constituent act which has to pronounce the sovereign, which is the Spanish people.
But let’s get on the assumption that the referendum is held only to decide the Catalans. What if the answer is positive? That’s what we have to analyze. Do not say “I am not in favor of a constitutional reform to solve the problem of Catalonia” because, on the assumption that this referendum was answered positively, the following is that the state would have to negotiate with Catalonia to establish the basis of their separation . And on the assumption that the Catalans decided to stay in Spain, you have to negotiate how. Therefore, the referendum will necessarily follow a constitutional process.
I firmly believe that the problem of Catalonia, if managed, will be for a generation at most, because it has always been so. What would arrange for 10 or 20 years and then would arise. But now we have a serious problem, the most serious problem that Spain since the Civil War, and the bases are not asking to fix the Catalans, in the abstract, “pronúnciense on its eventual independence” but there must be a rule where their organization, their skills and how to join the state is established, and that is the assembly that we must seek. Not the same a referendum, in the abstract, what Catalans want to set before them a reformed text also serves to excite the non-independence or mobilize around a project that can solve the problem.
M. Q. What advantage would a query only the Catalans, with a specific question but no articulated proposal for legal reform?
F. C .- would have the advantage of knowing who has most, if those who are pro-independence or not. Now there are surveys that vary without really knowing why, there are demonstrations, there has been the pseudoreferéndum 9-N. They were to vote for independence and also all others who thought “if this were true I would vote no, but vote against the PP, to change the status to return to make a new covenant.” Adding them to all be 30%. There are so many, we perceive many of those who live in Catalonia.
But to know exactly this would take something that was legal and he had all democratic guarantees. As some people may lose the right, but not be all, and as I believe in Europe today the independence of the state is totally absurd from an economic point of view, from the point of view of international relations, their communal life and what is modernity, it seems that this consultation would clear the doubts about what they want Catalans. In recent years, every day, morning, noon and night, there are Catalans, including the Government of Catalonia, who say that most of us, if not all, want independence and this is radically false.
As for what would happen if he wins yes, my position is that of the Clarity Act of Canada . If triumph yes, first the Canadian Parliament sets conditions for negotiation; then the federal government negotiates with Quebec, with the intervention of the governments of other states, and the result of negotiation must not only be voted by the Canadian Parliament but in all other states.
2. THE PROPOSAL OF A FEDERAL STATE
V. Q. Socialist Party’s proposal to move towards a federal state, do you have a chance?
F. of C. It is the only party that has a program of reforms on the table and also includes most of what you have been saying doctrine. It has two interesting features: a new system of distribution of powers and reform of the Senate in the German sense
J.. . E – In 1977 the claim of the PSOE was to make a federal state. The Basques and the Catalans would not because the idea of federal state is equal treatment for all, and what the Basque and Catalan nationalists have always wanted is being a cut above the rest. The federal state is much more complicated to make the State of Autonomies. To begin, we must determine which parties agree, if agreed between existing communities and if it includes uniprovinciales because we have a completely artificial State of Autonomies. For me, the best would be a federal state, but I see very difficult.
Then thing to do is try to reform the constitution, but in regards to Catalonia, relying on those who consider Spanish Catalan . If consiguiese that most of them approve or give strength to reform, I think it would go forward. The separatists were few. Why have grown? Because there has been an inevitable process of independence that has been central state claudication. There have been a total departure from the central government, leaving the independence advance.
The lawyers can give ideas, but those who make the decisions are political. And right now there is a politician who is the prime minister, who has taken three years to switch to a minister who was played from the beginning. How will you carry out a process of stopping the independence of Catalonia? Is anyone able to do that right now? I do not know.
J. RP – In Catalonia there is a sense of abandonment by the central government. What worries Catalan non-independence is to resist the rule of law. They do not want exciting projects, or that the powers of the Generalitat are increased, or that there pacts with the nationalist government. What they want is to resist the rule of law. And not have all of them because they do not know the extent to which judges and prosecutors are not taken by the nationalists.
3. THE APPLICATION OF ARTICLE 155
F. of C. The rule of law has not responded in many years. But lies a problem: they went to vote for independence one million eight hundred thousand Catalans. I think they are a minority. They have sold as a success when it has been a failure. They said they would spend 50% and have not reached 30%.
J. RP – Would you have filed the lawsuit against Artur Mas
F?. C -. And both
J.. RP What would have commanded the Guardia Civil 9-N?
F. C .: No. You can hold accountable posteriori but not intervene that day to make things worse.
M. Roll over Article 155. Q. When and how to apply?
J. The commandment says RP should take all necessary measures to restore constitutional legality, since the suspension of the Generalitat of Catalonia …
F. C .- I think not …
J. RP – Suspend in the sense that the central government can issue commands directly to all the Catalan authorities. Although not a suspension of the institution, the president of the Generalitat must obey what the government says. And so the Mossos d’Esquadra and other bodies of Catalonia. With this mechanism the central government can control or prevent certain actions. And then criminal ways if breaches of these orders.
F. of C. But this mechanism is deployed not at all what you want the central government but only that which the authority of the Generalitat -the president or which is in breach sea- repeatedly.
S. M. M -. The criterion is political. Article 155 uses very vague concepts, so that politicians have a very large margin of appreciation you can not anticipate or a teacher nor be replaced by the criterion of the courts. Now here is challenged everything and the executive power is not used, which is nonsense. There are things you have to do the executive and not the judiciary. In my opinion, the first of the applicative criteria of Article 155 is not worth the suspension of the statute of autonomy. The only time this was done was in the 34 and the Constitutional Court said the suspension of the statute was not provided for in the Constitution. The measures must be specific and proportionate application.
Have already produced situations that could be applied? Article 155 is too solemn, but the government was likely to have simply used the power of enforcement of decisions of the Constitutional Court. The rule of law is not only marginalized in Catalonia, it also made him look ridiculous. It is shameful that seek TC to cause a severe decision and the next day nothing happens and above will say ‘that they will do is not as important’.
4. DISTRIBUTION OF POWERS
V. P -. Division of powers. What would you do? ¿Recover powers of the State, would give more?
J. RP – The more you recentralice better. Because what has been abandoned is a fair competence and powers by the State in all fields. Now you can recentralise passing a true federal state, as in the German federalism.
F. C .- The problem of skills is in the distribution system. At this time the powers of the regions are in the statutes, the powers of the state are in the Constitution and those who are neither in the statutes or the Constitution which was not found none- are in the state. It is an absolutely abnormal compared federalism within the system. You have to convert it into what is more natural: the powers of the state are in the Constitution and the rest are in the regions.
Along with this, should be set in the Constitution the concept of exclusive competence, shared competence and concurrent jurisdiction. and delete in its entirety Article 150 [transfer or delegation of state powers to the regions and power of the State to harmonize regional regulations on matters within the competence of communities] because they would need and has been in generally disturbing. Do you have to refresh the list of powers of the state? I try not change much because it has not been so bad in general. And what went wrong, what has been more controversial, fix a position. Furthermore, it should be made to serve a clause that has not been used, which is the clause prevalence to the State for concurrent jurisdiction, those in which the State has the foundation and development is autonomous communities.
V. P -. This is the case of Education in Catalonia
F. C -. In education the state has the bases, not for Catalonia, but for everyone. They could change the bases without touching the Constitution. And then there is the issue of education linked to language. The Constitutional Court of 1994 has not been met. And in 1998 there were brutal pressure on the Ombudsman did not appeal the language law, pressures where they were from former President González until then President Aznar. In this really yielded the State. But from the point of view of the rule of law, the state has given up more has been since the disastrous 2006 Statute and from the judgment of the TC, when a president of the Generalitat, socialist, calls a demonstration against the resolution, something . unheard
Enrique Gimbernat -. That’s a lesson for the future. The more it has given more have been asked.
F. C .- Exactly.
S. M. M .- The Constitution has been amended many times since 1978 has been amended precisely for not fit the situation. It has been amended many times that governments have not challenged obviously unconstitutional laws that needed to nationalist minorities to get their budgets; is modified every time, being challenged manifestly unconstitutional laws, have withdrawn resources of the Constitutional Court; has been amended many times as contested law, the TC has taken eight years to solve the resource, because during all the time that this failure has taken has prevailed an unconstitutional law on the Constitution. On the issue of competences, the worst thing is that at this point we do not know what a exclusive jurisdiction of the state. This definition is missing in the Constitution. And behind that, the whole system falters.
The Constitutional Court set the doctrine that nothing happens if an autonomy statute called exclusive competence of the autonomous community that the Constitution says that is unique to the state. He concluded that when that happens skills tend to be concurrent. That is, it became competencies that are unique concurrent state. That day the system was loaded. An autonomous status may not qualify as an exclusive competition that is exclusive state; TC should have annulled. But since no one challenged statutes, so they stood. What skills do now? Indeed, the Constitution should contain the list of powers of the State and others could assume the autonomous communities. More or less powers than now? With the experience we know that there are things that recentralise. That the State should have more powers in economic matters, in territorial organization (local, for example) or in education. But sometimes the powers are in the Constitution and what has made the state legislatur e is dereliction of its exercise. In Education in Health …
F. C .- Should we also rethink the functioning of institutions . For example, modify the rule of law, an institution that I think has malfunctioned, linked to that party politics which is the General Council of the Judiciary. You can choose to edit or delete it and its powers are assumed by other bodies.
J. RP Interestingly, self-governing judges came to Primo de Rivera, who created the Organizing Meeting of the Judiciary in a decree of the year 23. The judges ended up fighting among themselves, politicized. We should restore the judiciary under a principle of hierarchical rigor, always predetermined by law promotions. And then the administration would be very simple. There are other issues such as the revolving doors of the judges who will become policy and. All this is incompatible with a democratic culture in European countries.
F. of C. Another issue is the operation of representative democracy. The parties internally are built from top to bottom and are impervious to society. This derives from something in the Constitution: the electoral system. Reform the electoral law on the German model of double voting citizen making a national list and a list of single constituency. The deputy who goes by the single constituency no longer depends only on the party leadership but can also say ‘I have here who vote me’, has its strength against the party apparatus. Democracy has to be more representative of the citizens of a closed and locked games. This is what citizens away from politics and parties.
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