Tuesday, January 04, 2005

ZAPATERO HAS STATED that he refuses the Ibarretxe plan:
Prime Minister José Luis Rodríguez Zapatero spoke out for the first time Monday against the Basque country's declaration last week that it had the right to break away from Spain, saying the region was bound by the Constitution to obey decisions made by the central government in Madrid.

"I have complete confidence that, I insist, this proposal has no legal foundation today," Zapatero said at press conference in Seville. "It has no place in the future of this country."
But, as I pointed out yesterday, I think the strategy of not taking the case to the Constitutional Court and waiting for the discussion (and dismissal) of the plan in the national Congress is probably not the wisest one, since it will be seen as a pure political, not legal response; as another offense to Basques by the "Spanish oppressor". In fact, Ibarretxe has declared he will proceed with his plan anyway, no matter what the Madrid parliament votes about it. And, having no legal foundation, isn't that an ellaborate way of saying that it's, well, illegal? Shouldn't it be taken to the courts (Constitutional or others), since it's the judicial branch who's in charge of determining what's legal and what's not? Besides some specific instances (such as the Lords Chambers in Britain, a historical remnant), no modern democracy with separation of powers gives the legislative branch the power to decide what's legal or what's not. Parliaments just create laws; the courts decide if something is according to these laws or not, and the executive branch applies them. That's how things go since Montesquieu, folks (of course, Spain's Socialist party has never been to keen on real separation of powers; some years ago Alfonso Guerra, then deputy Prime Minister in the Felipe Gonzalez administration, solemny declared: "Montesquieu is dead".)

Morever, the justification for not taking the case to the Constitutional Court makes no much sense:
Zapatero, according to one of his aides, says it is not clear that the court will take the case.

Since the Basque plan has not been adopted by the national Parliament in Madrid, it is not yet a law, meaning the court may say it falls outside of its jurisdiction, according to the aide.
Well, that anonymous aide should go back and study some Constitutional Law 101: not only laws from the national Parliament in Madrid are subject to the Constitutional Court jurisdiction; any legislative bill, or even executive decree, by any of the constitutionally established powers in Spain (that means not only the three branches of the national government, but the three branches of any of the 17 autonomous communities -quite akin to the states in the US-), can be challenged at the Constitutional Court. There's been hundreds of examples in the last decades of Madrid's government challenging bills from the regional parliaments, since there's been regular disputes about allocation of powers (central vs autonomous communities) in several specific issues; after all, the Constitution is relatively recent (1978), and the boundaries were not clear, especially at the beginning before the Constitutional Court had sufficiently developed a doctrine via all its sentences.

UPDATE. Changed some sentences and added a couple, plus some minor editing, in the paragraph starting "But, as I pointed out yesterday".

UPDATE II. Meanwhile, Ibarretxe ushers the worst possible 'insult' in current Spain:
The Basque regional prime minister Juan Jose Ibarretxe accused the Spanish premier Jose Luis Rodriguez Zapatero of 'intransigence' over his opposition to the Basque plan for greater independence from Spain.

In a press conference in Vitoria, Ibarretxe said: "If he doesn't want to negotiate then it reminds me of another era, it reminds me of the era of Aznar."