Analysis FAES Urkullu also has a plan


Vicente de la Quintana Díez is a collaborator of FAES

“Toute ma vie, je me suis fait une certaine idée de la France. Le sentiment me l’inspire aussi bien que la raison”

A nation is... a feeling that has a lot of citizenship, for example, in Catalonia or the Basque Country

In recent years the official chronicle has been very busy recording the evolution of Catalan secessionism. The prospect of a Basque metastasis was too overwhelming to correct the complacent vision of a "serious" PNV and a "moderate" lehendakari. Certain statements were considered verbal exorcism, anniversary reliefs; the PNV negotiated Budgets and refrained from calling illegal plebiscites, why ask for more?

Until one day, while the formation of a government, a voluntary hostage of Catalan independence, is being cooked in Madrid, Vitoria registers the draft of a new Statute.

The proposal, drawn up by "experts" appointed by the PNV, PSE and Podemos, addresses self-determination, bilaterality and differentiated citizenship. It contains dissenting individual votes, of course, so that the socialists can claim discomfort and the transforming left can temper its discourse to environmental feudalism.

As the artefact spurts unconstitutionality and 146 articles do not fit under the carpet, the official chronicle admits that what is happening in the Basque Country is beginning to be "worrying". Does it begin? All political judgements try to prevent what can be expected or feared. Already Dante warned: "the predicted arrow comes more slowly". Experience should favour foresight. And what is certain is that none of what is now making headlines has ceased to be planned, announced and written.

The PNV never descended from the failed "Ibarretxe Plan" mountain to camp on the plain of autonomism. He was taking a detour.

Festina lente: the march towards the 'new status'

In 2013 the PNV, returned to power, announced the activation of a "new political status" for Euskadi. The intention of modifying the current Statute was already included in its 2012 electoral programme. On 20 February 2014, the Basque Parliament approved the constitution of a self-government proposal to "update" the Statute with the backing of the PNV and the PSE.

The official chronicle continued praising the seriousness of the PNV and the moderation of the lehendakari. Although in 2015 it defined this new status as a bilateral pact between Euskadi and the State, which recognised the "national character" of the Basque Country, it included a "territorial division" of the judiciary, Basque foreign policy and the "institutionalisation" of relations with Navarre.

In 2016 Urkullu coined an unprecedented expression: the "nación foral". With this term, Urkullu intended to elevate to political category the pretension of achieving a bilateral relationship with the Government of Spain that would allow to negotiate 'inter pares' any application in the Basque Country of the basic legislation of the State.

The serious party and its moderate leader reach 2018 in time to agree with EH Bildu the Preamble and a Preliminary Title for the new Statute. They also agree on a citizen consultation that, "while not legally binding, would have essential declarative and enabling value. It would be held just after the Basque Parliament approved the new Statute and before it was referred to the Courts "to give it greater social legitimacy". This "enabling" consultation is, needless to say, completely illegal: it escapes the statutory reform procedure contemplated in the Guernica Statute.

That year, on the occasion of the 40th anniversary of the Constitution, while the PNV approved in the Basque Parliament a denigrating declaration, Urkullu defended a constitutional reform through the back door.

In an interview granted to EL PAÍS, he proposed the path of a "constitutional convention" that would allow "interpreting the original spirit of the pact that the Constitution supposed in relation to the historical national realities" in order to "live together from the different national sentiments and the different concepts of sovereignty that coexist in the State and also in Europe".

Urkullu has been told that of the "constitutional convention" by some informal experts for a party as "serious" as the PNV. Because it is an institution with Anglo-Saxon roots applicable to flexible constitutions such as the English one. The small detail of being that of 1978 a written constitution of a "rigid" nature, according to Bryce's classification, must seem like a trifle to them. But the idea worked its way through because it was passed on to the incumbent prime minister. Urkullu conveyed to him the need to "explore the path of a constitutional convention that would allow the original spirit of the covenant that the Constitution represented to be interpreted.

That's how we got to 2019. In the self-government paper, a series of experts appointed by the parties were proposed to formulate an article that would bring positions closer together. In the end, three different texts were presented: one common -although gathering divergences- of PNV, PSE and Podemos, and two more of Bildu and PP. We examined the work presented by PNV, PSE and Podemos.

A draft to erase Spain from the Basque Country

The PNV proposes to include a Second Additional Provision in the new Statute that establishes that "the full realisation of the Historical Rights of the Basque People, as an institutional manifestation of their self-government, is exteriorised through the right to decide their citizenship freely and democratically expressed, its exercise being agreed with the State".

In the first article, the PNV and Podemos coincide in defining the territories of Vizcaya, Guipúzcoa and Álava as "an integral part of Euskal Herria", and point out that the Statute is "an expression of their national identity".

The draft aspires to be the fundamental norm of an unnamed entity. The signatories do not agree on the designation of the political subject to which their text refers. The Basque Country ceases to be an Autonomous Community and becomes an OPNI (Unidentified Political Object). The new "juridical-political subject" can be called, for the sake of convenience, "the thing".

The following can be pointed out as the most relevant characteristics of this peculiar political proposal:

  • IT IS NOT A STATUTORY REFORM, although formally the procedure established for this purpose is used. What is initiated is a constitutional mutation operation similar to the one attempted in its day by the Estatut. The intention is to alter the autonomic plant of the State without constitutional reform; from the initiative of one party, provoking the transformation of the whole.
  • ORGANISED BY A LINK OF A CONFEDERAL NATURE BETWEEN SPAIN AND THE BASQUE COUNTRY. The text articulates a confederal relationship between "the thing" and the Spanish State. The PNV calls this a "political concert". In silver: the definitive expulsion of the Spanish State from Basque territory. Its confederal character is made concrete by establishing an Arbitration Board that is parity with the State in order to avoid the ultimate power of the Constitutional Court in the interpretation of the Constitution and the Statute. Such as the 'Ibarretxe Plan'.
  • POSTULA LA AUTODETERMINACIÓN in its second additional provision, but it is formulated wanting to evade the limits set by the TC in 2014, in its Judgment on the sovereign declaration of January 2013 of the Parlament. The PNV believes to save a manifest unconstitutionality by introducing the clause of the "pact with the State", which would allow an ambiguous interpretation that consents not to have to reform the Constitution to admit the self-determination of a territory.

The PNV deliberately ignores the jurisprudence of the Constitutional Court, sitting precisely on the occasion of its previous attempt: the 'Ibarretxe Plan'.  STC 103/2008, of 11 September, which resolves the Government's appeal against the Law of the Basque Parliament 9/2008, of 27 June (the 'Plan'), states that "The Law under appeal presupposes the existence of a subject, the "Basque people", holder of a "right to decide" that can be "exercised" (...), equivalent to the holder of sovereignty, the Spanish people, and capable of negotiating with the State constituted by the Spanish Nation the terms of a new relationship between it and one of the Autonomous Communities in which it is organised. The identification of an institutional subject endowed with such qualities and competences is, however, impossible without a previous reform of the current Constitution".

  • As in its day the 'Ibarretxe Plan', the distinction between Basque citizens and Basque nationals is recovered and it is wanted to be reduced by adding: "without this affecting the equality of the individual and the groups in which it is integrated nor implying any discrimination factor". So why statute difference?
  • HISTORICAL RIGHTS OR THE RABBIT IN THE HAT. The draft is based on the interpretation of some Historical Rights, fruit of an original sovereignty prior to and superior to the Constitution. Its "updating" would consist of anything that occurred to that "previous and superior" constituent power, whose will is interpreted by the PNV. In short: "historical rights" would be what the PNV would say.

According to the doctrine of the TC, the "historical rights" protected by the First Additional Provision of the EC are no spark from which any sovereignist rabbit can draw.  The STC 76/1988, pronounced on its scope and limits, clarifying that it is not History but the Spanish Constituent Power the one that grants validity and validity to the mentioned rights. And recently, STC 124/2017, of 8 November, makes it clear that the Constitution is not "the result of a pact between historical territorial bodies that preserve rights prior to it", but "the rule of constituent power that is imposed with general binding force in its sphere, without previous historical situations being excluded from it".

Pedro Sánchez and the Auction of Nations

This jumble of nonsense has been defended by the lehendakari in parliamentary headquarters, trusting that a government of Pedro Sánchez and Pablo Iglesias "will be propitious" to "fit" his sovereignty proposal.

In 2014, the Basque Parliament's self-government proposal was constituted. That same year, Pedro Sánchez maintained that Catalonia was a "nation" and so a new constitutional text should include it.

In 2016 Pedro Sánchez blocked the formation of a government that would end up in the hands of the PNV. That same year, shortly after being removed from the general secretariat, he defended that "Spain is a nation of nations. Catalonia is a nation within another nation, which is Spain, as is the Basque Country, and this is something we have to talk about and acknowledge. In 2019, the PNV is ready to take him at his word.

At this point, it is a question of pure national survival that parties loyal to the Constitution understand the peculiar idiosyncrasy of nationalist formations; notice the effects on the Spanish political system has unfolded over forty years its disproportionate influence; and finally act accordingly.

Translated by Blanca Domínguez

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