by Manuel Galiñanes |

The Spanish Constitution of 1978 (https://www.boe.es/eli/es/c/1978/12/27/(1)/con) outlined the legal framework for Spain’s transition from a dictatorship to a constitutional monarchy with a parliamentary democracy. This was a transitional commitment between antagonistic positions, and not a constituent process, which preserved the unity of the State and the formation of nationalities and regions (the Autonomies) with a variable degree of self-government. Under this framework, the central government maintains certain authority, whilst granting the Autonomies with powers delegated by the State. Catalonia and the Basque Country have greater level of autonomy compared with other regions in Spain. This model of decentralised unitary state, where the central government has greater authority than the regions, has been referred to by some scholars as federal-like or “quasi-federation”.

During the latest general elections of June 23, 2023, and making 45 years since the establishment of the 1978 Constitution, the Popular Party (PP) secured the highest number of votes. However, it was the Spanish Socialist Workers Party (PSOE) that succeeded in obtaining the greater number of seats in the Congress of Deputies by forming a coalition government through its collaboration with Sumar and the support of the Catalan and Basque pro-independence parties. Support from the Catalan and Basque country pro-independence parties was obtained in exchange for a series of pacts and concessions from the PSOE. This has been strongly contested by the opposition parties, different associations of judges, prosecutors and lawyers of the State, and also wider civil society, which has resulted in numerous complaints and large public demonstrations.

Within the different agreements to form the new Government, the processing of an amnesty law for Catalan politicians for the actions taken towards the independence of Catalonia during the last decade, known as the “procés”, has been of particular concern due to the serious degradation of democratic principles. There are different reasons for the rejection of the proposal of amnesty, which include:

1. in exchange for support from the pro-independence parties, the coalition lead by PSOE have agreed to pardon the offenses committed by members of the pro-independence parties;
2. in order for the PSOE led coalition to obtain power, they will propose an amnesty law that will require approval from the Congress of Deputies;
3. members of the pro-independence parties who have been charged with various unlawful offences will be absolved without serving their full sentences or having acknowledged their crimes; and
4. the admission of the President of the new Government that the amnesty has been promoted to obtain the votes of the deputies of the pro-independence parties in order to form the Government of the country, while declaring at the same time that such a decision would not have been taken if their votes had not been necessary.

The proposal of amnesty is being sought by the PSOE led coalition, despite it being found unconstitutional by the Congress of Deputies lawyers in March 2021, who drew attention to article 62.i of the 1978 Constitution, which states: “It corresponds to the King: 62.i exercise the right of pardon in accordance with the law, which may not authorise general pardons” (https://www.boe.es/eli/es/c/1978/12/27/(1)/con).

Regardless of any debate over whether the 1978 Constitution enables the proposal of amnesty, the most disturbing aspect of the actions undertaken by the PSOE coalition, is the erosion of the separation of powers through the misuse of the judiciary for political gain in the formation of Government. This has motivated various organizations to request protection from the European institutions so that the aforementioned abuses are avoided and that the equity, legitimacy and democratic principles that govern the EU are guaranteed in Spain.

The degradation of the separation of powers occurs in other areas of Spanish politics, which devalues the democratic integrity of the institutions. For example, in the election of the members of the General Council of the Judiciary (CGPJ), half of the governing body of judges are elected by the Congress of Deputies and the other half by the Senate, in a vote by qualified majority of three-fifths. This implies that the main political parties have to agree to make the appointments, something that prevents the independence of the election by proposing professionals who are usually ideologically close to the political parties. The members of the CGPJ are appointed for a five-year term but currently, due to the attempt to influence the appointments, the body has not been renewed for the last 5 years and the PP party has been accused of blocking the election of the new members. The blocking of the renewal of the CGPJ is also of utmost concern for the European Commission, which has requested to address the situation as a priority, insisting at the same time that the election system must be modified in accordance with European standards in such a way that the CGPJ members must be chosen by the judges themselves (12 members reserved for judges and magistrates and 8 chosen from prestigious jurists), a model that, to a greater or lesser extent, occurs in other EU countries.

Unfortunately, executive control of the judiciary in Spain has not been limited to the CGPJ and other judicial institutions have also been subjected to the same type of political intrusion. The current Government’s proposal to create parliamentary commissions of inquiry into judicial decisions represents another clear interference by the executive and legislative branches on judiciary power. Thus, the lack of independence of the judiciary in Spain is clearly a serious democratic anomaly.

It is also necessary to point out that the fusion of the executive power (President and ministers) with the legislative power (Congress of Deputies) in the Spanish parliamentary system does not correspond to a strict separation of the two powers. It can be argued though that this integration does not necessarily violate the separation of powers if mechanisms are established that serve as checks and balances; however, the degree of overlap of powers means that the effectiveness of the political system depends on constitutional provisions and the commitment of political actors to defend democratic principles. This is not the case in Spain where the struggle for power frequently transgresses these principles, distorting political life, aggravating and dividing civil society.

There are several factors responsible for the decline of democracy, but a central question is what role does the existing decentralised unitary state play in Spain. First, it should be recognized that this “quasi-federalist” model, that operates from the top down starting from the government institutions, has worked for some time, allowing the peaceful transition from a dictatorial state to a democratic one, but the intrinsic deficiencies of the model have ended up eroding political activity and the democratic integrity of its institutions. Now, the question is how the democratic decline can be reversed to improve the country’s governability? In my view, the most appropriate alternative is the adoption of a federal state. In particular, if the model chosen is a centripetal federalism where the decisions are taken from the bottom up starting from the citizens. In such a model, the different regions will be able to manage their own affairs delegating common competencies to the State Government. It is worth noting that a centripetal federalism is promoted by the Federative Alliance of European Federalists (FAEF) in the drafting of the Constitution for the creation of the Federated States of Europe (https://www.faef.eu/wp-content/uploads/Final-Constitution.pdf) for ending the democratic deficit suffered by the European Union governed by intergovernmental treaties.

Accepting that the institution of a true federation is the most effective model to preserve the different regional identities, safeguard democratic principles and improve governability in Spain, it is worth asking how it can be implemented. A quick way to transition from the existing model of decentralised unitary state will be the modification and update of the current Constitution; however, the division between the parties and the lack of democracy within the parties themselves may make difficult to reach an agreement on the necessary constitutional reforms. Another alternative may be the opening of a constituent process for the drafting of a new Constitution in which independent intellectuals and civil society must participate, with a final ratification by the citizens in a referendum. Regardless of the chosen modality, a good functioning federal state will require the provision of appropriate government structures as previously suggested (doi:10.4236/ojps.2023.134021; https://www.faef.eu/wp-content/uploads/Final-Constitution.pdf) with the corresponding checks and balances and the direct participation of citizens.

All the more, in order to establish a federal state in Spain two important issues need to be taken in consideration. The first is the “maintenance of national unity” as described in article 2 of the 1978 Constitution (https://www.boe.es/eli/es/c/1978/12/27/(1)/con), thus ensuring that all of Spain’s regions remain united as one country as opposed to separate nations. A possible solution to overcome this hurdle may be the maintenance of the principle of national unity for a sufficient period of time so that citizens could assess the benefits of the federalist model before the issue is finally put to citizens’ consultation. A second hurdle could be the compatibility of the existing constitutional monarchy with a federal state. However, in this case, a constitutional monarchy may be compatible with a federal state as the form of government (constitutional monarchy) and the structure of the State (federalism) are separate concepts and, therefore, both can coexist within the same political system. Indeed, several countries in the world combine a constitutional monarchy with a federal structure where the role of the monarch is ceremonial and governance and political decision-making is the responsibility of elected officials.

In conclusion, the deterioration of democracy in Spain has reached alarming levels that threaten the country’s governability and cause anxiety among citizens, a situation that requires imperative solutions. The conversion of the existing decentralised unitary state, or “quasi-federal” state, to a true federal state through a consensual reform or a new constitution, that clearly defines the responsibilities of the different powers and the independence between them, is feasible and can be the most viable and effective way to provide the necessary political legitimacy and stability to the country. It is hoped that a successful implementation of federalism in Spain would spur the transition from a European Union ruled by treaties to a more democratic federal Europe.

Manuel Galiñanes

Federal Alliance of European Federalists (FAEF)