FAES Analysis Group Article 155: a political... and constitutionally adequate solution

At times, it seems to be forgotten that the Constitution is the supreme legal norm because it expresses sovereign political will. In other words, the legal supremacy of the Constitution is nothing more than the translation of the political principle of popular sovereignty into the legal world, a principle which constitutes the only source of legitimacy of power according to the democratic principle. In Javier Pérez Royo’s words, the Constitution is the intersection point between Politics (which creates it) and Law (which finds in it its last foundation of validity).

Well, few articles of the Constitution are so revealing of that specific political nature as article 155. A precept that, until a little more than a year ago, was almost a perfect unknown not only for the Spanish public opinion but also for a great part of scholars dealing with Public and Constitutional Law in Spain. Only a few experts had paid attention to commenting on it, analysing its significance and background, normally underlining its similarity -despite some differences- with the mechanism included in the German Fundamental Norm.

In this context, as is natural, the mere possibility of using it for the first time gave rise to prior debates on almost all its aspects, including its scope and possible limits: as if it were a quicksand zone, entering seems simple... but it is not easy to predict if it will come out and under what conditions. Subsequently, its application in Catalonia made it possible to observe its effects in practice, simultaneously opening the way for the Constitutional Court, in strict compliance with its function as supreme interpreter of the Magna Carta and guarantor of its validity, to analyse it. Indeed, as long as there are unconstitutionality appeals pending, the Court will have to pronounce not only on the instrument, but also on its specific use in the present case, which will undoubtedly make it possible to specify more precisely the possibilities and conditions of its application.

In any case, and while the High Court resolves these appeals, reflection on these points can contribute to the legal-constitutional debate, in particular, and to the political debate, in general.

Thus, at this stage, it is obvious that the mechanism provided in Article 155 underlines precisely the primacy of “the political” when the law is faced with its limits. If Law, as a normative order, is always characterized by resting, in the last instance, on the coercive capacity of the State, this precept (which, in this logic, defines a “federal coercive mechanism,” common in federal States) welcomes (legally) an appeal to the supreme political will of the Nation. In this way (and thus giving reason, paradoxically, to those who defend the need for a “political solution” to the breach of the legal system in force in Catalonia by the authorities of that Autonomous Community), article 155 is configured as the constitutionally adequate political solution, expressly provided by the constituents against certain threats to the system, which are also defined politically... precisely because they question its limits.

Thus, the Constitution foresees this mechanism as the ultimate ratio to face an essentially political conflict, which can be conceived as the stark confrontation between sovereignty (national, of article 1.2; and therefore, inclusive of the will of the Catalans) and autonomy (of nationalities and regions, article 2). When instruments of “[ordinary] control of the activity of the organs of the Autonomous Communities” (foreseen in article 153) are revealed as useless or insufficient, article 155 introduces this other procedure, whose political nature is expressed in practically all its characteristic elements.

1. It is only applicable in a conflict between two political subjects defined by the Constitution: the State, on the one hand, and an Autonomous Community (or, to put it better, its authorities), on the other.

2. The enabling circumstance for its use is not -as has sometimes been attempted to emphasize- the simple breach of legal or constitutional obligations, however serious they may be. On the contrary, it is a politically “qualified” breach, due to its extraordinary and serious nature, according to its literality.

  • It is obvious that the generic constitutional reference to a breach of “the obligations that the Constitution or other laws impose on it” has to be completed, to the contrary with the exclusion of all those “ordinary” breaches (or conflicts), reducible to the control mechanisms of 153.
  • The other, less concrete case refers to actions “that seriously threaten the general interest of Spain;” it is certainly an alternative case, but at the same level (“a” or “b”) as the previous one; from which it follows that gravity must be common to both.

3. The constitutionally foreseen procedure leaves in the hands of exclusively political subjects (excluding any prior legal control) the assessment of the concurrence of the factual assumption, the decision on the application of the mechanism, and the definition of its content: at first, the Government of the Nation must require a rectification from the President of the Autonomous Community concerned. Only “in the event of not being complied with” that requirement, the Government, “with the approval by an absolute majority of the Senate, may adopt the necessary measures to oblige the former to comply forcibly with those obligations or for the protection of the aforementioned general interest.”

In short, article 155 introduces into the very heart of the “State of Autonomies” a mechanism of political solution (i.e., founded on the political will of the people) to the legal and political conflict and which has nothing to do with the “conflict” with which independence seeks to legitimise the rupture of the constitutional order. The conflict that article 155 remedies is the one that arises when the authorities of an Autonomous Community exceed their power (constitutionally limited by the express political decision of the constituents) and lack the loyalty inherent in the political and constitutional principle of solidarity (STC 64/1990), that is, when they ignore those limits of their power and pretend to assert themselves as politically sovereign power.

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