Last week the Spanish legislature’s constitutional commission approved --with the backing of the PP and the PSOE-- the national security bill put forward by the Spanish government. Considering the two fundamental consequences that stem from this text --a further step backwards in terms of civil liberties and, above all, a lethal blow to the system of political decentralization in Spain-- it is surprising to see the media silence and lukewarm criticism with which it has been met.
As is the case with all bad legislation --that is, laws that strengthen the arbitrary power of the state-- the aim of this act (“national security”) is tautological and, ultimately, unlimited. Following the Act’s Purpose --penned in flowery, foggy language--, article 3 defines national security as “State actions aimed at protecting the freedom and welfare of the public and guaranteeing the defence of Spain, its principles and constitutional values”. Now, given that this is precisely what all states do --guaranteeing the security, freedom and happiness of their citizens-- and that, in fact, it is what justifies the very existence of any state, article 3 actually manages to turn any dimension of public (and private) life into an area that could potentially be declared a matter of “national security”.
To some extent, this is hardly surprising. A state is defined by its capacity to establish what “national security” is and the means required to achieve it. After all, being sovereign means having the power to define words and the monopoly of the sword to enforce them. Still, the rule of law establishes that it is up to several separate powers --executive, legislative and judicial-- to jointly decide what constitutes public security, both at the central as well as the regional level (whenever the latter exists, as in Spain). Instead, this bill endows the Spanish Prime Minister with virtually exclusive powers to determine where and when “a situation concerns National Security” (a term that is capitalised in the bill itself). Article 15 establishes that it is the Prime Minister who will direct national security policy, will propose the “National Security Strategy” and will be entitled to “declare a situation a national security concern”, which I shall refer to as an NSC from now on.
The role of the legislature as an overseeing body is greatly diminished: the houses will debate the general guidelines of the security strategy and they will form a joint committee of the Senate and Congress where a representative of the executive branch will be held accountable once a year (article 13). Spain’s regional governments are reserved a very minor role: their duty is to cooperate and their only right is to receive information in a sort of sectorial conference formed by regional representatives (article 6).
The bill explicitly indicates (article 22.4) that an NSC is not the equivalent of a state of alarm or emergency as stated in the Spanish constitution, which permit the suspension of basic rights and public liberties. In this sense, the executive branch does not take on the exceptional powers that the Weimar constitution endowed the president with --and Hitler used to rule Germany, without ever repealing its constitution--. However, considering the extent to which new information technologies allow today’s governments to intervene in our private affairs, I am totally skeptical as to the limits that the bill claims to impose on the executive in the event of an NSC.
While individual liberties remain “protected” by the constitution, the basic --in fact, the only-- purpose of this act is, undoubtedly, to afford the Spanish government direct power to coordinate every public administration automatically and immediately and, above all, regional governments. The Spanish Prime Minister simply needs to declare a situation an NSC to take over any devolved powers in any field and without any need for further legal action. As stated in article 23, an NSC “requires the reinforced coordination of the competent authorities ... under the leadership of the Government [of Spain]” and they are obliged to “provide the human and material resources within their domain, as needed”. Hence, the Spanish executive’s capacity to call an NSC in order to decide upon and manage any regional affairs without legislative and judicial checks, depriving regional government of any capacity to react, means the destruction of Spain’s regional devolution as a political system grounded on constitutional guarantees.
There are two general lessons that we can learn from this bill. The first one is of a demonstrative nature: it explicitly proves that the system of autonomous regions in Spain lacks any political guarantee of any kind; this fact, the destruction of the constitutional pact, explains and justifies Catalonia’s independence bid, which arises purely as a self-defence movement. The second lesson is a strategic one. The Spanish government will not resort to article 155 of the constitution. Rather, they will strive to avoid any drama in the Senate. Instead, they will simply issue ministerial orders so that, by invoking an NSC, they can reclaim devolved matters “without revealing the actual intent” (1).
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(1) N.T. This last phrase is written in Spanish in the original. Most Catalan readers would probably recognise it as a quote from the secret instructions issued by Madrid to the Spanish authorities in Catalonia in 1716. Their purpose was to ensure that Catalonia was slowly but surely brought in line with Spain’s laws and culture, following the Catalan military defeat of 1714.
