In May 2008, the Basque executive presented a bill before the autonomous-community calling for and regulating the holding of a plebiscite on October 25th 2008, addressed to the Basque people. The aim of the consultation was to obtain the opinion of the people in the Basque country regarding two issues: a discussed and negotiated end to the ETA violence, and a future referendum, previously agreed upon by all the Basque parties without exception, on the question of the Basque people's "right to decide". In short, the presentation of this bill demonstrated the political willingness of the three parties forming the Basque government (the Basque Tripartite) to introduce the issue of a future referendum on independence into the Basque institutional agenda and to define it as an issue that exclusively concerned the Basque people.
In the Basque parliament, with its 75 seats, the position of the parties with regard to the bill led to a tied situation: in favour, obviously, was the Tripartite block, with 32 seats (the 22 seats of the Basque Nationalist Party, the 7 seats of Eusko Alkartasuna, and the 3 seats of Ezker Batua-Berdeak-Izquierda Unida), and Aralar (1 seat). In total, 33 votes in favour. Against were the Basque socialists (Partido Socialista de Euskadi, 18 seats) and the conservatives (Partido Popular, 15 seats), coming as well to 33 seats in all. The Partido Comunista de las Tierras Vascas (PCTV) [Communist Party of the Basque Lands], the party of the pro-independence radical left, found itself in a position of clear abstention. In the end the PCTV finally decided to cede one vote in favour of approving the bill, although the parliamentary group as such abstained. Convinced that the consultation would never be held because of the interventions of the institutions of central government, the PCTV argued that they were ceding the vote necessary to pass the bill with a sole objective: to highlight the relationship of subordination of the Basque institutions to the institutions of the central government. The final result was that the bill was passed by 34 votes in favour, 33 against and 7 abstentions. Days later, the prime minister of the Spanish government brought an appeal of unconstitutionality against the law, as did the Popular Party by way of an appeal by 50 members of Congress.
On 11 th of September 2008, the Constitutional Court ruled unanimously in favour of the appeal of unconstitutionality brought by the Prime Minister of the Government against what is known as the Basque plebiscite law. The plebiscite, called by the law of the same name for October 25th of this year, was aimed at obtaining the opinion of Basque citizens about two interconnected issues: firstly, whether they would agree to give their support to a process leading to a discussed and negotiated end to the ETA violence, and secondly, whether they would agree to give their support to the holding of a referendum before 2010, in accordance with a previous agreement of all Basque parties without exception, concerning the question of the Basque people's "right to decide".
From a legal point of view, the fundamental problem of the Basque law rested on determining if the law was calling for a referendum or not. Why? Because if the consultation could be considered as being a referendum, the law would directly contravene the Spanish Constitution, which establishes (Article 149.1.32) that the holding of referenda must be authorised by the institutions of central government. Evidently, the Basque government, as promoter of the law, had avoided defining the consultation as a referendum, realising that any referendum that addressed issues about the political relationship between the Basque Country and Spain would never be given the green light by the two main Spanish parties, and as a consequence, by the central institutions - government and parliament. The Court considered that the consultation did indeed amount to a referendum, and was therefore unconstitutional.
Three elements of the Court's ruling should be emphasised: Firstly, the unanimity with which the decision was reached, at a moment in which disagreements between the members of the Court have led to rulings with a simple majority and a profusion of private votes. Secondly, the importance of the argument that the ruling makes regarding the main reason why the law is deemed unconstitutional: the consideration that the plebiscite established in the law is, in practice, a referendum. This consideration was come to after defining the concept of "referendum" based on two necessary and sufficient characteristics: one characteristic linked to the dimension of substance, of content, of the concept that understands a referendum as being a mechanism for exercising the fundamental right of political participation; and a second characteristic, linked to the referendum's procedural dimension, understanding that the drafting of a referendum is done based on a call to the electoral body, i.e. by using the electoral roll. Both these characteristics, the substantive and the procedural, are found in the definition and drafting of the plebiscite established in the Basque law, from which it was adjudged that it is nothing short of a referendum.
Thirdly, it should be pointed out that the ruling presents an unusual characteristic in the practice of the Court, which can only be explained by the political significance and importance of the law and of the challenge to it: the fact that the Court analysed all the grounds for the law's unconstitutionality. In normal circumstances, ruling in favour of one ground of unconstitutionality means that it is no longer considered necessary to analyse the remaining grounds put forward. In this case however, the importance of the issue led to the other grounds argued being considered and analysed: the fact that the consultation was to made to the "Basque people" (the issue rested on whether more than one sovereign people could exist when the Constitution establishes that sovereignty rests with the "Spanish people"), and that the parliamentary procedure with which the law was passed was not in keeping with that established in the rules of the Basque parliament.
Useful links:
Document explaining and justifying the plebiscite law. Document from the website of the Basque President - Lehendakari (in English).
