Someone just sent me a wild and wildly misleading press release (Spanish) from the PNV, the main legal Basque nationalist party. They are very annoyed about the Spanish government’s resistance to their proposal (English; BBC report) to tear up the Spanish constitution (starting with article 149.1.32, which reserves for the state the right to call referenda, and 147.3, which requires national parliamentary approval of changes to statutes of autonomy) and impose a new order without reference to the rest of Spain. Their thrusts (summarised) and my parries are as follows:
- The Spanish constitution has not changed, so the government has no right to change the penal code.
Although it is correct to say that major penal reform has tended to follow major constitutional change, minor change has always taken place within the constitutional status quo in order to be able to deal more effectively with circumstances not foreseen in the original draft. To imply – as the PNV seems to be doing in the final sentence of the first paragraph – that reform of this nature by a democratic government is somehow linked directly with reforms during the Franco dictatorship is stupid, insulting, and surely the best way for the PNV to lose any sympathy it still enjoys elsewhere. - The penal code constitutes in some way a negative constitution and, as such, changes in it should require political consensus.
Apart from displaying a basic ignorance of the relative roles of the constitution and the penal code, that’s just not what the law says; indeed, changes in the constitution itself do not require political consensus, merely the support of 60% of both houses of parliament. - The governing party, the PP, is abusing legislative procedure in order to get the change through in this session.
I’d better investigate this one before I shout my mouth off. Suffice to say that no laws are being broken and that the approach at first sight seems ugly rather than defective. - The reform is uncivilised, anti-progressive, and anti-democratic because a non-penal (ie negotiated) solution hasn’t been sought and because it ignores popular opinion.
Penal law is designed to deal with conduct that wrongly damages, or threatens to damage, individual or public interests which the state has decided need protecting. Legitimate (and, at times, illegitimate) Basque separatism has been in dialogue with Madrid government since democracy was established, and – now that things have got this far – I am not aware of significant hostililty to reform that might discourage a political party from causing immense damage to individual and public interests by choosing unilaterally to violate key provisions of the constitution. - The PP is seeking to criminalise political disagreement.
No, behaviour is different from ideology: this reform is designed to raise the price for unconstitutional political behaviour. - “We are talking about a purely autocratic, fascist use of the Penal Code, comparable to that realised by Italian fascism, by Greece under the colonels, by Fujimori’s Peru, and by other international satraps [sic].”
Fujimori is not a good man, but why has the PNV decided to hate him so much? What did he ever do to them?
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You don’t understand. The problem is that the Aznar government uses the constitution too much, like it was the Bible.
Are you suggesting the PP ignore the constitution? Re change: the constitution is not written in stone and the barriers to altering it are much less than in some countries. What is lacking is the political courage to make a public case for stuff like increased autonomy, the abolition of the monarchy, and the ending of those historical links with the Catholic church. It’s much easier just to retreat to your mountains and sulk.
I’ll add Franco to Godwin’s list as long as I can keep calling my friends Stalinists ;o)