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Basque historical rights within the Spanish Constitution and the failure of the rule of law

As any relevant democracy, the Spanish one enjoys since 1978 those tools that define the concept of a State under the Rule of Law. The main pillars of this system are, of course, the separation of powers and the respect for Human Rights both acting as the real guarantee of individuals within their relations.1

During the last years, and mainly due to the policies and regulations enacted by José María Aznar (former Spanish Premier) and followed by the Popular Party (PP) and the Socialist Party (PSOE), we have been suffering a very dangerous risk and involution within the separation of powers which is somehow very difficult to appreciate nowadays in Spain. Thereby, we have been suffering a clear tendency to foster a sort of “single thinking” in Spain, in front of those minorities who are not well seen from the central government. Let’s analyse it with some examples.

Regarding the separation of powers

It is necessary to remember here that during Aznar’s era, even the former President of the Constitutional Court of Spain (Mr Jiménez de Parga) took part in the political debates, including those ones who were directly pending under the Constitutional Court. He did advance to all us the future judgments of the highest court in Spain, in particular for those claims pending and relating to Basque issues, such as the banning of Batasuna (left wing party for Basque independence), inter alia. There is an alarming situation of the separation of powers within the Spanish context, mainly due to the role of Mr Aznar, within the term of his mandate (1995-2003). As we will see, this is particularly obvious in those matters linked with Basque politics.2

According to the modern political theories and to the recent constitutional developments in the European Union, a Constitution is not at all a single recognition of State unity or formal soivereignty as proposed by Aznar for the case of the Basque nation (Euskal Herria) under the Spanish regime. Nevertheless, any State has the right and the tools to defend its sovereignty under the Rule of Law and according to international law. But meanwhile, the real essence of a Constitution pursuant to the modern Law are Human Rights and democratic principles.3 That is also very clear within the proposal for a Constitution of the EU. Human Rights are of course a sine qua non requirement for western countries who are directly obliged by EU and International Law to comply with their respective legal frameworks. Honestly, I cannot think of anybody who believes in democracy arguing against freedom of expression, political participation or any other fundamental right whatsoever recognised by international and domestic instruments.

Spain and its Constitution are obliged as well to follow these rules (article 10 of the Spanish Constitution, the 1950 European Convention on Human Rights and the 1966 International Covenant on Civil and Political Rights, inter alia), but is either clear that the Spanish Government according to its recent policies has been acting in breach of these rules at the domestic level. There are, at least, two current examples with the Spanish Constitution and the current regulations in force to demonstrate that the separation of powers in Spain has disappeared or is about to do so. All these questions are also, in my view, an open path for self determination according to international law in force:

a) The banning of Batasuna

According to the Spanish constitutional system, a political party may only be banned through a criminal judgment (articles 6, 22 and 55 of the Spanish Constitution, Spanish Criminal Code and articles 14.7, 15 and 25 (rights for political participation) of the International Covenant on Civil and Political Rights (1966). None of those requirements have been fulfilled; Batasuna was banned by means of an administrative ad hoc judgment, an ad hoc court and interpreting a legal framework promoted for these purposes only. Even before the Constitutional Court giving the OK to the final appeal in 2003, its former President, Jiménez de Parga, accepted and assumed that judgment in front of the press stating its political necessity.

There is, indeed, a constitutional procedure for banning political parties due to the eventual criminal behaviour of any of its members. This does not mean to defend Batasuna, but to defend the Constitution and its guarantees.

b) Closure of the Basque newspaper Egunkaria

This is a very similar situation; a restriction on the right of public expresion and information is only possible in the Spanish system through a criminal judgment or by the government declaration of state of alarm, or exception. None of those situations occured (articles 20 and 55 of the Constitution), the criminal code and articles 9 and 19 of the International Covenant on Civil and Political Rights (1966).

Could it be that in certain issues there is an exceptional enforcement of the Law, whereas the Spanish Constitution does not accept such a thing? Could it be that in some places there is an exceptional state undercovered? I do sincerely believe that the people who live under the threat of ETA survive under exceptional circumstances; in a different sense, the Basque issue and the Basque society do live in Spain under a particular and, sometimes, exceptional regime fostered in the last years. But of course, one thing is an exceptional regime promoted by a terrorist organisation and a different one is an undercovered exceptional regime promoted by a government. They are very different things.

With regard to the enforcement of the rule of Law

The legal and political structure of a State is not something eternal. Nowadays, the undenyable legal issue is the requirement of protection and assumption of Human Rights and democratic principles. A possible solution to these questions could be present, to a certain extent, within the Proposal for a Political Statute for the Basque Country (PSBC) approved by the Basque Parliament updating Basque Historical Rights (30-12-2004) but rejected by the Spanish Parliament without any kind of previous negotiation (February 2005):4 “sharing sovereignty, democratic principles and also Human Rights” is the essence of the PSBC and its drafted text to amend the current regime.5 The rest of the pending issues could be perfectly subject of negotiation in a democratic system. That is somehow, as well, the general consideration made by the Supreme Court of Canada in 1998 regarding the case of Quebec.6

The precarious situation of the Spanish rule of Law could be divided in three different branches: Human Rights, the separation of powers and the involution in decentralisation. Curiously, the three issues do have general examples within Spain, but also remarkable data linked with the vision of the Basque issue assumed by the PP and the PSOE. Another of the main examples has also linkages with the powers and duties of the legislative (in particular the Basque Parliament) and the original idea of the former Spanish Premier in order to avoid any debate of the Proposal of the Basque President neither at the Basque nor the Spanish Parliament. Therefore, Aznar’s Government claimed before the Constitutional Court the inconstitutionality of the debate thereon at the Spanish Parliament. It was not a regulation or an Act, but a single political proposal for open debate, so there was no space for inconstitutionality according to the Spanish Constitution. Fortunately, the Constitutional Court refused Aznar’s thesis by Judgment of 21-4-2004, accepting at least the mentioned debate and the impossibility to decide on such a matter, unless the debate may create a real Act afterwards to reform the current regime.

At the same time, the Spanish parliament approved an incredible amendment in the criminal code in order to prosecute the Basque President due to his intention of convoking a public consult in the Basque Country on the mentioned Proposal, once approved by the Basque Parliament.7 In both cases, the single objective of Aznar was to avoid the debate at the parliament and, moreover, obstruct the competences and “sovereignty” of the legislative. Not only regarding the Basque autonomous legislative, but also the Spanish Parliament who was to become the next body to analyse the proposal of the Basque President. Of course, Aznar’s intention was not at all to discuss on the constitutionality of this proposal, and rather to avoid the debate with both Parliaments. Honestly, for him there was no necessity at all for neither of the Parliaments. As a matter of fact, the same sovereignty of the people was and might be still a very disturbing recognition for Aznar, in despite of the clear statement made by article 1.2 of the Spanish Constitution.

Regarding the “ad hoc” amendment on the criminal code, the objectives and considerations are very similar. The inclusion of this criminal offence by reason of the intention of the Basque President for convoking a referendum is a direct violation of articles 9 y 25 of the Spanish Constitution, and 15 and 19 of the International Covenant on Civil and Political Rights (1966). For the former Spanish President it did not really matter because he was “entitled” to create such a new criminal offence.

There are some more examples that could be object of analysis, but let me just suggest the very difficult situation of Basque language (Euskara) in the territory of Navarre with serious restrictions and proved violations of the Constitutional Spanish framework leaded by Aznar’s party, and in clear breach of article 27 of the International Covenant on Civil and Political Rights (1966).8

All these situations did not foster any advance towards the resolution of the Basque conflict in both sides of the Pyrenees, while there is an important part of Basque society with serious restrictions for political participation within the Spanish level. We should underline, at this point, that the list of Batasuna for the European Parliament was legal in France during 2004 elections but not in Spain. Another peculiar case for EU law and its “constitutional” new approach. In all this complicate context, a very relevant part of the Basque society may presumely keep on claiming for self determination according to the new developments of International Law and pursuant to the recognition of Basque Historical Rights or Titles made by the 1978 Spanish Constitution. Indeed, the non-compliance of Spain with their constitutional system provided is more than a legal reason to foster the path for Basque self-determination through the compliance with Basque Historical Rights.

1 See, in that sense, articles 9, 10 & 11 of the Proposal for a new Statute for the Basque Country (PSBC) assuming the widest possible approach to protection and control of Human Rights.

2 To avoid and prevent these sort of situations, the PSBC stands for a whole bilateral system of control and guarantees in articles 14, 14 & 16.

3 Arts. 9, 10 & 11 PSBC.

4 In this case very clearly, once again, in breach of the Spanish Constitution. Namely, article 151.2. In the same sense, against the provisions recognizing a right to negotiate this text by article 137 of the Spanish Parliament Statutory Regulation.

5 See the full english version of the proposal approved by the Basque Parliament (PSBC).

6 More specifically in the principle of the right to negotiate a possible different status for Quebec recognised by the Canadian Supreme Court (Decision of 20-8-1998). See as well arts. 12 & 13 PSBC with a very concrete approach to self-determination based upon the principles stated by the Canadian Supreme Court in 1998 (the right to a bilateral negotiation on the Basque political status).

7 See the proposal of the Basque Parliament on this matter through article 13 PSBC.

8 Regarding euskera (Basque language) see the proposal of the Basque Parliament in article 8 PSBC.

Eusko IkaskuntzaAsmozEusko Media