translated from Spanish: For a new legal form: the regional state

Similar to the unitary state that historically characterizes the Chilean State since the dawn of the republic, the regional state or autonomy shares the same common fact: both have experienced a single constituent moment. In both the unitary legal form of State and in the regional legal form of State, the Constitution is the same for the whole territory, that is, the same spatial element, the same human element and the same temporal element of validity of this fundamental rule. The only significant difference between one and the other legal form of State relates to how to articulate political and administrative division, in the same way, the greater or lesser intensity of the legal rules that prevail over each territorial unit that is determined in one or the other Constitution. In the regional state or of autonomy, the Constitution envisages higher territorial units known as “autonomy” (Spanish case in the 1978 Constitution) or “regions” (Italian case of the 1947 Constitution) whose respective legal statutes correspond to that of a law, a law that expresses a fundamental political decision provided for in the Constitution and which recreates or establishes a genuine political institutionality with bodies that perform bernative/administrative, legislative and judicial functions, other than the presence of national bodies performing the same state functions, this time referring to the whole territory. Bodies performing functions of a bernative/administrative nature and legislative bodies emanate from the people’s popular will, be it this national will, whether this will of regional or regional territorial unity. This means that in the proposal and experience of the regional state or autonomy there is a high degree of political and administrative decentralization to the periphery of the political center. The regional state is interesting because it has shown that a federal state is not needed to ensure deep political decentralization through the founding of a second constituent moment corresponding to the elaboration of the respective Constitution of the Member State, other than the Federal Constitution which lays down the powers and rights that guide the regulatory regularity of peripheral legal systems. Towards the beginning of the 21st century, the Spanish state of autonomy was considered among the most decentralized northern hemisphere countries in the world, much more than the German federal state. This high level of decentralization is possible through the exercise and development of legislative powers, such as those deployed by the General Courts in the city of Madrid, a body authorized to create, modify or repeal the respective Statutes of Autonomy existing in Spain. The main reason for this is the intrinsic subordination of the Statutes to the Constitution, simply because they do not derive from the exercise of a constituent power derived, even or less, from an originating constituent power, but rather from the exercise of legislative powers. In general, the legal form of the regional State or autonomy allows the presence of the legislature not only for the creation of the respective Statute of Autonomy or Regions, but also the presence of other laws of the State. This is relevant for establishing what has been called the “statutory reserve” clause, where by which no general law can invade the contents reserved exclusively for the Statutes of the Regions or Autonomy. This is without prejudice to the existence of so-called “non-statutory” laws that are designed for the allocation of powers, either through the legislative delegation, or through organic transfer laws as is the case in Spanish constitutional and administrative law. This whole system of regulatory interrelationships that arises in the system of sources of regional law and the general source system of the regional state originates relationships between the principles of normative hierarchy and the principle of competition, both state and regional. The feasibility of the Copernican turn of moving towards a Constitution that facilitates genuine processes of political and administrative decentralization is not impossible, but a conditio sine qua non for the effective participation of the citizens living in the peripheral territories of the Chilean political center. It is also the effective way to refresh the quality of the régimen democratic that has historically been characterized by hegemonic action by the President of the Republic, freeing up the potential tensions that the current constitutional scheme of transfer of powers to regional governments through a presidential Supreme Decree can cause, with the risk of underestimating the political efforts and energies of regional governors when promoting their requests for competence and economic resources to the Executive.

The content poured into this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.

Original source in Spanish

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