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Manuel Francisco Pulido Quecedo, , Professor of Constitutional Law at the University of Navarra, Spain.

Priorities in the necessary constitutional reform

Mon, 24 Aug 2015 21:01:00 +0000 Published in La Razón

The constitutional reform, until now outside the political diary of the Government party, seems to have found its place and electoral importance. It has been introduced, first by the Minister of Justice, and later confirmed by President Rajoy. It is not clear in what terms, but it seems to be accepted as a starting point the report of committee of State of 2006, elaborated under the presidency of Prof. Rubio Llorente, responding to the questions formulated by President Zapatero.

Although the starting point is important, which affects the succession of the Head of State (gender equality) and issues related to the improvement in the articulation of European integration mechanisms, the core issue of the constitutional reform must be dealt with in the territorial areas. There are other necessary changes, especially that of Justice, which could be solved with state pacts between the main parties, although praxis has proven their inability to reach an agreement agreement. Therefore, for a constitutional reform to be possible, in addition to the spirit or political will to carry it out, it is necessary to select well the objectives and priorities.   

Many citizens wonder why it is necessary to change the Constitution. The first answer would require justifying the change, suggesting the advantages to be derived from it. Here the answer is not complicated and can be explained. Although the Constitution was made with a vocation of permanence -it was called the Constitution of consensus- it was born, however, with a provisional character in subject territorial. What concerned Suarez and later the constituent members was to solve the problem of the so-called historical regions, that is, those which had plebiscited a Statute of Autonomy in the times of the II Republic, especially the Basque Country and Catalonia. The rest remained indeterminate; it was to be written as a result of the option for the dispositive principle, taken from the republican constitution of 1931.   

Nor was the regulation of degree scroll VIII, which refers to the territorial organization of the State, a paragon of virtues. It was described as a"great ceremony of confusion", due to the gibberish of powers it incorporated. However, thanks to the work of the major national parties -autonomous pacts- order was established in the generalized access of all the territories to constitutionally guaranteed autonomy, and thanks to the interpretative work of the Constitutional Court -institutional in a composite State such as ours- some order was established in the convoluted system of distribution of competences. In this re-definition there were more lights at the beginning (80s-90s of the 20th century), and more shadows from certain changes(lotizzazione) in its composition, which led to the STC 31/2010, of June 28(Catalan Statute), which being essentially correct, marks an insurmountable turning point, which can be summarized in two maxims: The TC can not make the EC say what it does not say, and the statutes of autonomy can not exceed the framework of the Constitution.

In all this territorial matter there remained the role of the Senate, which was designed provisional in 1978, -since the Autonomous Communities were not constituted-, on the provincial model of 1977, which, as it is known, constitutes one of the weak points of the system, as it prevents the Autonomous Communities from participating in the training of the national will, and, as a consequence, each one of them can get by as best they can, -especially the bilateral relationship- which only leads, if it is carried out in a generalized and unequal way, to a kind of asymmetrical confederation, the seed of the decomposition of the State; The current situation in which we find ourselves, aggravated by the Catalan question and the economic crisis.

For this reason, and at the time of establishing priorities in subject of constitutional reform, the main one is the territorial one, which entails the reform of the Senate, which in turn leads to the reform of congress and its competences and, of course, to the modification in core topic federal of the system of competences designed in degree scroll VIII. Bearing in mind, moreover, that the system of excessively shared competences does not lead to anything positive at the present time, if the mechanisms of partnership and cooperation necessary for the State to function as a whole in a more articulated manner, and not as if it were 17 mini-states living with their backs to each other and all or some (depending on the political color) in front of the Central State, are not modified. That is why we need constitutional rules that allow the Autonomous Regions to participate in legislation, through the Senate, and clearer rules of competence that make it possible for the State as a whole to function in a more articulated manner. Otherwise, chaos will eventually become part of the possible organizational solutions.

It is, therefore, good news that on the eve of the elections, the governing party includes constitutional reform in its electoral program. The winning party and its candidate will have to take the initiative and know how to forge consensus, since that is what leadership in a modern society consists of at crucial moments in our history.