The Spanish Constitutional Court faces direct democracy

The Spanish Constitutional Court is about to render one of the most important decisions in its history. The case concerns the Statute of Autonomy of Catalonia, a region in Spain that has traditionally had a strong nationalist movement. Under the Spanish Constitution of 1978, Spain was divided into 17 Autonomous Communities. Each Community has its own Statute of Autonomy that specifies a particular level of self-government and establishes its basic governmental institutions. Catalonia obtained its Statute of Autonomy in 1979. After a long and politically controversial process, a new and more ambitious Statute was enacted in July 19, 2006 to replace the earlier one.

The new law was passed by both the Catalan Parliament (by a supermajority) and the Spanish Parliament. The Spanish Parliament was deeply divided about the new Statute, however. While the governing Socialist party and its allies voted in favor of the Statute that the Catalan Parliament had proposed (although important amendments were introduced) , the Partido Popular in the opposition was strongly against it. The opposition argued that the new Statute deeply offended the principle of equality of Spanish citizens and the principle of the unity of Spain. At a more technical level, the Partido Popular found many parts of the Statute to be contrary to the Spanish Constitution, which is the supreme law of the land.

After a majority of the Spanish Parliament voted in favor of the new Statute, a referendum was held in Catalonia on June 18, 2006. The turnout was not high for Spanish standards: only 48% of citizens with the right to vote participated. A large majority of those who did vote, however, approved of the Statute: 73% voted yes, while only 20 % voted no. (The rest were blank votes:5%, and null and void votes: 0,8%).

After the referendum, the Statute took legal effect. The Partido Popular then decided to bring a constitutional challenge against it. Under the Spanish Constitution, a qualified minority of the Spanish Parliament (50 deputies or 50 senators) are entitled to challenge statutes before the Constitutional Court. This is an abstract review procedure that allows the Court to strike down laws that are unconstitutional even if they have not yet been applied to any particular case.

The Court is aware that its decision is going to have an enormous political impact. The case raises many interesting issues of a foundational kind for a theory of constitutional democracy. Let me mention two of them.

First, it seems reasonable to request actors to be consistent when they make their claims. One of the features of deliberative democracy is that participants are expected to take arguments seriously before decisions are made. Arguments can only be taken seriously, however, if participants are prepared to apply them in a consistent fashion. Similarly, the constitutional court is supposed to be a "forum of principle" (to use Ronald Dworkin´s expression) where claims are to be supported by reasons that one is ready to apply in a coherent manner. Now, the problem with the Partido Popular´s challenge against the Catalan Statute is that a similar new Statute has been enacted for Andalusia (another region in Spain), this time with the political support of the Partido Popular. It just happens that several provisions of the Andalusian Statute are similar to some of the provisions of the Catalan Statute that have been attacked by the Partido Popular on constitutional grounds. Obviously, this unprincipled way of acting has been widely criticized in Catalonia -it seems to reflect some sort of anti-Catalan feeling. The problem, however, is whether the Court should pay attention to this inconsistency. Should the Court disregard the Partido Popular´s arguments, given this party´s inconsistent behaviour? If the Court holds the view that it should focus on the legal arguments, no matter how inconsistent the plaintiff has been, the question, then, is this: what will happen with the Andalusian provisions, if the Catalan provisions are struck down? Technically, under Spanish Constitutional law, only the Catalan provisions will be affected. The similar clauses of the Andalusian Statute will remain good law, unless someone challenges them. But who will challenge them? The only possibility will be for ordinary judges to send constitutional questions to the Constitutional Court in the context of ordinary cases. Whatever the final outcome of this process is, there is no doubt that the Partido Popular´s inconsistency has greatly complicated things.

The second interesting issue that has been debated is this: is it acceptable for the Constitutional Court to pass judgment on a law that has been approved not only by two democratic Parliaments (the Catalan and the Spanish Parliaments), but also by the people themselves in a referendum? There is no doubt under Spanish law that the Court is legally entitled to control the constitutionality of any Statute of Autonomy, even if a referendum has been held for its enactment. Is it "legitimate", however, for the Court to have been given such great power? In a democracy, shouldn´t the people have the last say?

Some voices in Spain have been raised to question the Court´s legitimacy in a case like this. They sometimes refer, for comparative purposes, to the French Constitutional Court´s case-law, under which a law enacted through a procedure where the French people have directly participated is immune from judicial review. The Court, indeed, has held that it lacks authority to check such a law under the Constitution, since the people is sovereign. (That holding was first announced in a decision of November 6, 1962, and was reinforced in a decision of September 23, 1992). The problem, however, is that the French Court refers to a decision made by the sovereign people -the French-, while the Statute of Autonomy was not approved by the sovereign people -the Spanish people-, but by a fraction of the sovereign people -only Catalan citizens participated in the referendum. In the United States, for example, federal courts have sometimes struck down state laws (ordinary laws or constitutional amendments) that were approved by the citizens of that state in a referendum. I am sure that similar cases have arisen in other countries. (It would be interesting to gather some examples through this blog).

Maybe the question is not a matter of legitimacy but of deference. It is legitimate, one may say, for the Spanish Constitutional Court to examine the validity of the Catalan Statute, but it should do its job in a very deferential manner, given the democratic procedure that was followed to get it enacted. Is this view plausible?

These and other issues have generated big controversy in Spain. To make things more complex, some days ago (September 13, 2009), an informal referendum, organized by a private association, was held in a small Catalan village (Arenys de Munt). The issue was whether Catalonia should declare its independence from Spain. Although only 41% of voters participated, those who did were overwhelmingly in favor: 96%. This is totally unrepresentative of Catalan public opinion, for the majority of Catalans are against independence. Other informal referenda will be held in other villages in the next weeks or months, however, or so it seems. The nationalist parties in Catalonia (even the moderate and widely supported Convergència i Unió) seem to be sympathetic with the actors that have initiated this process. What should we make of these developments? Is a signal being sent to the Constitutional Court, in order to make clear that a decision that sharply limits the scope of self-government (as defined by the new Statute of Autonomy) will not be easily swallowed by Catalans? What will happen if the Court strikes down some parts of the Statute? The current government in Catalonia has had to state that it will comply with the decision, but there is a strong current of opinion in Catalan society that takes compliance to be unjustified. The legitimacy of the Court in a democratic system is thus in question.

I hope to keep you informed about these developments in my next posts.

Victor Ferreres Comella