Autonomous Communities in the 1978 Spanish Constitution

Spain has 17 Autonomous Communities and provision for their creation was defined in the 1978 Spanish Constitution, although they actually came into existence as a result of their own Statutes of Autonomy.

Article 2 of the 1978 Spanish Constitution recognises and guarantees the right to autonomy of the different nationalities and regions, basing the principle on the unity of the Spanish Nation and the idea of solidarity between the communities that make it up.

According to Article 137, autonomy is a governing principle of the Spanish State, which is organised into municipalities, provinces and autonomous communities. However, it is important to distinguish between the local autonomy of the municipalities and provinces, which is basically administrative, and the autonomy of the nationalities and regions, better known as the autonomous communities, which has a greater political element.

During the drafting of the Constitution, it was considered specifying the scope of the territorial definition in Article 2, but decided on the following wording:

"The Consititution is based on the indissoluble unity of the Spanish Nation, common and indivisible homeland to all Spaniards, and recognises the right to autonomy of the nationalities and regions that make it up and solidarity amongst them.".

As one of the Fathers of the Constitution, Miguel Herrero y Rodríguez de Miñón, pointed out, this wording admits the possibility that a part of the territory could separate from the rest of Spain. As the application of the Constitution is based on the indivisible the Spanish nation, if a group declared that it was not part of the Spanish nation, the Constitution would have no jurisdiction over it, which would result in the territory where this group was based having a valid claim to separate from the rest of Spain.

Another interesting argument is that if a region, such as Catalonia gained independence, as Spain is indivisible, neither of the resulting states could claim to be the Spain as defined by the 1978 Spanish Constitution, and so both would have to apply for re-entry into the European Union.





Territorial Organisation

The constitutional principle of autonomy, included in Article 2, is developed throughout Title VIII of the Constitution, which is dedicated to the Territorial Organisation of the State. The Constitution affirms that the State is territorially organised into municipalities, provinces and autonomous communities, and assigns each of them a level of autonomy under which to manage their respective interests.

The Constitutional Title is divided into three chapters, referring to general principles, local bodies and autonomous communities respectively. The doctrine attributes an administrative autonomy to the local bodies, which includes the capacity to execute laws under certain restricted conditions.

The autonomy as exercised by the autonomous communities is clearly political, as they not only put the law into practice but also have certain legislative competences.

The Legal Model

Historically, the 1978 Constitution breaks with the centralist tradition of the Spanish State, which was introduced by Felipe V in the early 18th century. It attempts to solve the regional problem by recognising the claims to nationality of the Basques, Galicians and Catalans, without forgetting the nationalist minorities in Aragón, the Canary Islands, Andalucía and Valencia.

This decentralised model of State was actually constructed in the years following the passing of the 1978 Constitution, when Spain was divided into autonomous communities each with its own government, as well as an Autonomic Assembly or Parliament with legislative power. The name, the territory, the organisational model and the competences assumed by each community was defined in a separate Statute of Autonomy for each community most of which were passed between 1979 and 1983.

According to the principle of jurisdictional unity, there is only one Supreme Judicial Power in the whole national territory, so the autonomous communities do not have their own bodies with jurisdictional powers. This has been a continual bone of contention in Catalonia and the demand for a separate Catalan Supreme Court was included in the 2006 Statute of Autonomy of Catalonia but was cut by the Spanish Constitutional Court in its ruling of 2010.

The Administration of Justice and the autonomous communities are allowed, however, to make use of material, personnel and economic resources from the Administration of Justice in their territory, as long as they limit themselves to the administrative area without legal power.

The Tribunal Superior de Justicia de España, the Spanish Supreme Court of Justice, is the maximum jurisdictional body within each autonomous community. It appoints the Magistrates of the Civil and Criminal Courts, and also presents the shortlist of candidates to the Consejo General de Poder Judicial, or General Council of Judicial Power, in each community.

To make this clear, despite its name the Tribunal Superior de Justicia de Catalunya is subordinate to the Tribunal Superior de Justicia de España.

The Development of the State of the Autonomies

The 1978 Spanish Constitution did not establish a complete territorial model, but defined what has been described as a "Regionisable Unitary State". In other words, it defined a State that permits access to autonomy for nationalities and regions, and establishes a series of procedures that would give rise to a later regionalisation of the whole territory.

The Constitution establishe two ways of acceding to autonomy. Firstly, the fast track, corresponding to regions that had already been granted pre-autonomy. This group the historic nationalities of Catalonia, Galicia and the Basque Country, the historic regions of Navarre and Andalucía, which had gone through the complicated procedure laid out in Article 151. These communities could enjoy the full level competences allowed by the Constitution from the beginning.

Most of the autonomous communities were constituted by the so-called slow track, which was defined in the second section of Article 143, and initially, they could only assume the competences specified in the first section of Article 148. This meant they would have to wait five years to be granted the rest of the competences.

The constitution of the autonomous communities of Spain took places between December 18th 1979, when the Statutes of Autonomy of Catalonia and the Basque Country were passed, and February 1983, when all the regions had been constituted as autonomous communities. From 1992, there was a relative evening of competences between the top level communities, who gone through the fast track, and the slow track communities.

The Comunidad Valenciana and the Canary Islands, despite belonging to the slow track group, enjoyed competences of the first group thanks to transfer completed by the State following the the Law of Competences. The last two Statutes of Autonomy to be passed were those of Ceuta and Melilla, which were established as Autonomous Cities.

Section A of Article 144 of the Constitution gives the Cortes Generales, or Spanish Parliament, the power to create a single province autonomous community for the general good, which it has only used once to create the Community of Madrid. In Section B of this Article, the Cortes also have the possibility of giving a statute to a territory not included in the provincial system, which it did in the case of Ceuta and Melilla, and which it could also use in the unlikely event of Gibraltar becoming Spanish again. If the Cortes decided not to use this option, it could also approve the inclusion of Gibraltar as part of Andalucía by adding a first disposition to the Andalusian Statute of Autonomy.

Distribution of Competences

Theoretically, relationship between the State and the autonomous communities is not based on hierarchical principles, but rather on the principle of cooperation within a framework of competential distribution. Not surprisingly, this gives rise to competential conflicts between the State and an autonomous community, or even between different autonomous communities. According to the Organic Law of the Constitutional Court, the supreme arbiter is the Tribunal Constitucional or Constitutional Court.

The 1978 Constitution did not specify the competential distribution between State and autonomous communities, which was later defined by a series of successive laws that defined the legal framework and permitted the transference of competences and also by the passing of the various Statutes of Autonomy. As Catalonia is well aware, this ad hoc system has led to disagreements between certain autonomous communities and the Constitutional Court.

However, in the first section of Article 149 a nucleus of the distribution of competences is established which has to be respected by the legislator. It is not a homogeneous nucleus, but rather contains both the exclusive competences of the State as well as the areas where the State and the autonomous communities work together.

The doctrine defines four types of competential distribution. Exclusive competences of the State include anything relating to Defence and the Armed Forces.

Legislative competences of the State with executive competence of the autonomous community, such as putting into practice labour law. Basic legislative competence of the State with executive competence and legislative development by the autonomous community, which cover issues associated with the environment, for example.

The Constitution claims that there are exclusive competences of the autonomous community, where the autonomous community has practically total control, such as in the regulation of the institution of self-government. However, central government can always call on the Constitutional Court if it suspects its competences have been infringed so the idea of the autonomous communities having exclusive competences is very relative.



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