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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


  1. "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?"

    I think there are two questions to be answered here, (1) when should judges defer to 'popular sovereignty', and (2) where does the locus of popular sovereignty lie, Catalonia or Spain as a whole?

    Issues of self-determination are an interesting intersection of law and politics. I would suspect that the Constitutional Court, as a creature of the Spanish Constitution, would have to take the view that the Spanish people are sovereign, but a Catalan court might disagree. It would be interesting if the Constitution Court struck down the statute but the Catalan courts decided not to recognise the decision.

    If we assume that it is the Spanish people alone who have the right to decide Catalonia's system of government then the Constitutional Court striking down the new Autonomy Statute isn't that problematic. The constitution is the supreme law and was enacted by the people (by plebiscite) so its legitimate for it to prevail over an act of parliament. "The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

    The fact that the Autonomy Statute has come through such a long process means that striking it down would be politically constroversial and embarrassing. Maybe the Constitutional Court should be allowed to review bills before they become law, like the French system, to avoid this kind of situation.

    "Should the Court disregard the Partido Popular´s arguments, given this party´s inconsistent behaviour?"

    The Partido Popular has brought the case, but presumably if the Constitutional Court were to strike down the statute it would do so not for the benefit of the PP but to vindicate the interest of the Spanish people in seeing the constitution upheld. So I don't think it should really matter if the PP have dubious motives or are hypocrites.

    "What will happen with the Andalusian provisions, if the Catalan provisions are struck down?"

    In a common law system this wouldn't really be a problem. The decision would become a precedent and before long someone would bring a case that would lead to the other laws being struck down. (But then of course in a typical common law system the whole context would be different as there'd be no abstract review).

  2. Since the author said that it would be interesting to gather some examples on how courts around the world treat laws passed in a popular referendum, I want to add a case from Germany:
    In Hamburg, which is a state of Germany, a referendum was passed requesting the Senate (which is the administration of Hamburg) to guarantee that the state hospitals remain property of the state. Nevertheless, the State Parliament passed a law transferring the state’s hospitals to a new (public) corporation. This law was challenged in the Constitutional Court of Hamburg. Petitioners argued that the law violated the referendum and was therefore invalid.
    The Constitutional Court held that laws passed in a referendum and those passed by parliament are of the same legal rank and that laws passed in a referendum can be changed by parliament at any time. The other way round, a law passed by parliament can be changed in a referendum. And I am pretty sure that one can say, that because of the same legal rank of parliamentary laws and referendum laws courts are able to strike down the latter as well as the former.

  3. William Vazquez Irizarry, University of Puerto Rico School of LawSeptember 27, 2009 at 9:36 AM

    We experienced a similar controversy in Puerto Rico a few years ago regarding the transformation of the legislative branch from an American style bicameral system to a single chamber. On 2004 our Legislature authorized a popular referendum to be held during 2005 on the question whether to amend the Constitution to adopt a unicameral system. A majority in favor of the amendment would have required the approval by the Legislature of a specific text of amendment and that would then be subject to a second referendum during 2007. The first referendum was held on 2005 and 83 percent voted in favor. However, the Legislature, now dominated by a different political party, refused to pass an enabling statute for the second referendum, and the issue was taken to court. The controversy was similar to the one described by Victor in the sense of the highest court judging on a matter already decided through a mechanism of direct democracy. The PR Supreme Court ruled on 2007 that the Legislature was under no obligation to pass legislation enabling the second referendum because the procedure established on the 2004 act was unconstitutional. Under our Constitution a two thirds majority of legislators is needed to submit an amendment to voters. The PR Supreme Court concluded that the 2004 act was a deviation from the constitutional text and that the Legislature could not be compelled to start a formal amendment process. In so far as the judicial power was being asked to order the legislative power to legislate, the suit raised the type of political question controversy usually avoided by courts, at least under US constitutional law. The decision was heavily condemned by those who had trusted the judiciary as a last resort to vindicate the will of the people of PR.

    Unlike Spain in which the outcome of direct democracy, the new Statute of Autonomy of Catalonia, was final and the Constitutional Court is being requested to stop the process, in PR plaintiffs were trying to persuade the PR Supreme Court to force a constitutional process upon the Legislature based on the outcome of direct democracy, the results of the 2005 referendum. Moreover, although the 2005 referendum was indeed direct and democratic, it was more political than legal in nature. Why the Legislature enacted in 2004 a statute enabling a popular referendum asking voters just for their preferences, instead of adopting legislation to start a full process of constitutional amendment. Well, perhaps because the political party then in power only had a simple majority of votes in the Legislature and lacked the two thirds established by the Constitution. Thus, not being able to comply with the constitutional amending process, those in power at the time opted for a simple statutory based procedure hoping that a favorable result in 2005 would create a political momentum forcing the legislators to pursue the constitutional way through a referendum in 2007. It did not happen for several reasons. In 2005 the Legislature was in hand of a different political party who were unwilling to go unicameral. Further, the favorable results of the 2005 referendum were reached with a voter turnout of just 22 percent in comparison with 80 percent during the last two general elections.

    I was personally in favor of the proposal and I do think that the mechanism used in 2004 was a legitimate way to force the issue on the next Legislature. In that sense, I believe that the inaction of the Legislature since 2005 through 2007 was pernicious to the idea of direct democracy. However, I also think that the problem was political in nature and not subject to judicial review. I offer this case as an example of the complexity behind some direct democracy processes and how courts deal with its outcomes.


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