The
Constitution of Spain is regarded as the
culmination of the
Spanish transition to
democracy. It was enacted after
a referendum on 6
December 1978 after approval by 88% of voters.
Origins
The constitutional history of Spain dates back to the constitution
of 1812. After the death of dictator
Francisco Franco in 1975, a
general election in 1977
convened the
Constituent
Cortes (the Spanish Parliament, in its capacity as a
constitutional assembly) for the purpose of drafting and approving
the constitution.
Each of the Spanish parties had its
recommendation to voters.
A seven-member panel was selected among the elected members of the
Cortes to work on a draft of the Constitution to be
submitted to the body. These came to be known, as the media put it,
as the
padres de la Constitución or "fathers of the
Constitution". These seven people were chosen to represent the wide
(and often, deeply divided) political spectrum within the Spanish
Parliament, while the leading role was given to then ruling party
and now defunct
Unión de Centro
Democrático.
The writer (and Senator by Royal appointment)
Camilo José Cela later polished the
draft Constitution's wording. However, since much of the consensus
depended on keeping the wording ambiguous, few of Cela's proposed
re-wordings were approved. One of those accepted was the
substitution of the archaic
gualda ("
weld-colored") for the plain
amarillo (yellow) in the description of the
flag of Spain.
The constitution was approved by the
Cortes Generales on October 31, 1978, and
by the Spanish people in
a referendum on
December 6, 1978, before being promulgated by
King Juan Carlos on
December 27. It came into effect on
December 29, the day it was published in the
Official Gazette.
Constitution Day
on December 6 has since been a
national holiday in Spain.
Preamble
Writing the preamble of the constitution was considered an honour,
and a task requiring great literary ability. The person chosen for
this purpose was
Enrique
Tierno Galván. The full text of the preamble states:
- The Spanish Nation, wishing to establish justice, liberty
and security, and to promote the welfare of all who make part of
it, in use of her sovereignty, proclaims its will to:
- :Guarantee democratic life within the Constitution and the
laws according to a just economic and social order.
- :Consolidate a State ensuring the rule of law as an expression of the will of the
people.
- :Protect all Spaniards and all the peoples of Spain in the
exercise of human rights, their
cultures and traditions, languages and institutions.
- :Promote the progress of culture and the economy to ensure
a dignified quality of life for all
- :Establish an advanced democratic society, and
- :Collaborate in the strengthening of peaceful and efficient
cooperation among all the peoples of the Earth.
- Consequently, the Cortes approve and the Spanish
people ratify the following Constitution.
Structure of the State
The Constitution recognizes the existence of
nationalities and regions
(Preliminary Title).
Preliminary Title
- Section 2. The Constitution is based on the indissoluble unity
of the Spanish Nation, the common and indivisible homeland of all
Spaniards; it recognizes and guarantees the right to
self-government of the nationalities and regions of which it is
composed and the solidarity among them all.
As a result, Spain is now composed entirely of 17 Autonomous
Communities and two autonomous cities with varying degrees of
autonomy, to the extent that, even though the Constitution does not
formally state that Spain is a federation (nor a unitarian state),
actual power shows, depending on the issue considered, widely
varying grades of decentralization, ranging from the
quasi-confederal status of tax management in Navarre and the Basque
Country to the total centralization in airport management.
Article 143
- Section 1. In the exercise of the right to
self-government recognized in Article 2 of the Constitution,
bordering provinces with common historic, cultural and economic
characteristics, island territories and provinces with historic
regional status may accede to self-government and form Autonomous
Communities in conformity with the provisions contained in this
Title and in the respective Statutes.
Social rights
The
Spanish Constitution is one of the few Bill of
Rights that has legal provisions for
social rights, including the definition of
Spain itself as a
Social and Democratic State, subject to the
rule of law (Sp.
Estado social y democrático de
derecho) in its preliminary title.
Other constitutional provisions recognize the right to adequate
housing ,
employment,
social welfare provision,
health protection and
pensions.
Due to the political strength of the
Communist Party of Spain during the
Transition, the right to State intervention in private companies in
the public interest and the facilitation of access by workers to
ownership of the means of production were also enshrined in the
Constitution.
Reform
The
Spanish Constitution has been reformed once
(
Article 13.2,
Title I) to extend to citizens of
the
European Union the right to
active and
passive suffrage (both voting rights and
eligibility as candidates) in local elections.
The
social democratic PSOE government of
José Luis Rodríguez
Zapatero has announced its intention to undertake a major
reform of the constitution during its tenure. The proposed
modifications would include
- succession in the monarchy on the basis of age only, and not
gender, thus abandoning the traditional Castilian rules set in the Siete Partidas. While the rights of the
current heir apparent Felipe,
Prince of Asturias, are to be maintained, the goal is to reform
before his eventual children are born. This issue has been
refreshed when Felipe's wife, Letizia Ortiz, announced her first
and second pregnancies and after the birth of the Infanta Leonor of Spain. The Prince
however has reminded reformers that there is time since he comes
first in the succession line.
- an overhaul of the Spanish Senate
transforming it into a chamber of territorial representation
- officially incorporating the European Constitution (should one be
approved)
- listing the names of the existing autonomous communities
The proposal has been met with scepticism from some quarters
(notably in the main opposition party
Partido Popular, PP) because some of
these reforms deal with
protected sections of the
constitution, which would require
supermajorities in order to be modified (see
below). Furthermore, even an amendment of a non-protected part of
the Constitution would require the agreement of the main opposition
party or at least some of its representatives, because it would
require the support of three-fifths of each
House, which is 210 votes in the
Congress of Deputies and 159 in
the
Senate.
The current version restricts the
death
penalty to military courts during wartime, but the death
penalty has since been removed from the Code of Military Justice
and, hence, has lost all relevance.
Amnesty International has still
requested an amendment to be made to the Constitution to firmly and
explicitly abolish it in any eventuality.
Protected provisions
Title X of the Constitution establishes that the approval of a new
constitution or the approval of any constitutional amendment
affecting the Preliminary Title, or Section I of Chapter II of
Title I (on Fundamental Rights and Public Liberties) or Title II
(on the Crown) —the so-called "protected provisions"— are subject
to a special process that requires (1) that two thirds of each
House approve the amendment, (2) that elections are called
immediately thereafter, (3) that two thirds of each new House
approves the amendment, and (4) that the amendment is approved by
the people in a referendum.
Curiously, Title X does not include itself among the "protected
provisions" and, therefore, it would be possible, at least in
theory, to first amend Title X to delete this special procedure,
and then change the "protected provisions".
The reform of the autonomy statutes
The "
Statutes of Autonomy" of
the different regions are the second most important Spanish legal
normatives when it comes to the political structure of the country.
Because of that, the reform attempts of some of them have been
either rejected or produced considerable controversy.
The plan
conducted by the Basque president
Juan José Ibarretxe (known
as Ibarretxe Plan) to reform the
status of the Basque Country
in the Spanish state was rejected by the Spanish
Cortes, on the grounds (among others) that it amounted to an
implicit reform of the Constitution.
The People's Party attempted to reject the admission into the
Cortes of the 2005 reform of the
Autonomy Statute of
Catalonia on the grounds that it should be dealt with as a
constitutional reform rather than a mere statute reform because it
allegedly contradicts the spirit of the Constitution in many
points, especially the Statute's alleged breaches of the
"solidarity between regions" principle enshrined by the
Constitution. After failing to assemble the required majority to
dismiss the text, the People's Party filed a claim of
unconstitutionality against several dozen articles of the text
before the Spanish Constitutional Court requiring for them to be
struck down.
The amended Autonomy Statute of Catalonia has also been legally
contested by the surrounding
Autonomous Communities of Aragon,
Balearic Islands and the Valencian Community on similar grounds as
those of the PP, and others such as disputed
cultural heritage. As of January 2008, the
Constitutional Court of
Spain has those alleged breaches and its actual compliance with
the Constitution under
judicial
review.
Prominent Spanish politicians, mostly from the People's Party but
also from the ruling Socialist Party (PSOE) and other
non-nationalist parties , have advocated for the statutory reform
process to be more closely compliant with the Constitution, on the
grounds that the current wave of reforms threatens the functional
destruction of the constitutional system itself. The most cited
arguments are the self-appointed unprecedented expansions of the
powers of autonomous communities present in recently-reformed
statutes such as:
- The amended version of the Catalan Statute prompts the State to
allot investments in Catalonia according to Catalonia's own
percentage contribution to the total Spanish GDP. The Autonomy Statute of
Andalusia –a region with a lower contribution to Spain's GDP than
the one of Catalonia– requires it in turn to allocate state
investments in proportion to its population (it is the largest
Spanish Autonomous Community in terms of population). These
requirements are legally binding, as they are enacted as part of
Autonomy Statutes, which rank only below the Constitution itself.
It is self-evident that, should all autonomous communities be
allowed to establish their particular financing models upon the
State, the total may add up to more than 100% and that would be
inviable. Despite these changes having been proposed and approved
by fellow members of the PSOE, former Finance Minister
Pedro Solbes disagreed with this new
trend of assigning state investment quotas to territories based on
any given autonomous community custom requirement and has
subsequently compared the task of planning the Spanish national
budget to a sudoku.
- The Valencian statute, whose reform was one of the first to be
enacted, includes the so-called Camps clause (named after the
Valencian President Francisco
Camps), which makes any powers assumed by other communities in
its statutes automatically available to the Valencian
Community.
- Autonomous communities such as Catalonia, Aragon, Andalusia or
Extremadura, have included statutory clauses claiming exclusive
powers over any river flowing through their territories. Nearby
communities have filed complaints before the Spanish Constitutional
Court on the grounds that no Community can exercise exclusive power
over rivers that cross more than one Community, not even over the
part flowing through its territory, because its decisions affect
other Communities, down or upstream.
References
- Article 47 of the Spanish Constitution states: "All Spaniards
have the right to enjoy decent and adequate housing. The public
authorities shall promote the necessary conditions and establish
appropriate standards in order to make this right effective,
regulating land use in accordance with the general interest in
order to prevent speculation. The community shall have a share in
the benefits accruing from the town-planning policies of public
bodies".
- Article 40 states: "The public authorities shall promote
favourable conditions for social and economic progress and for a
more equitable distribution of regional and personal income within
the framework of a policy of economic stability. They shall in
particular carry out a policy aimed at full employment."
- Article 41 states: "The public authorities shall maintain a
public Social Security system for all citizens guaranteeing
adequate social assistance and benefits in situations of hardship,
especially in case of unemployment. Supplementary assistance and
benefits shall be optional."
- Article 43 states: "The right to health protection is
recognized. It is incumbent upon the public authorities to organize
and watch over public health by means of preventive measures and
the necessary benefits and services. The law shall establish the
rights and duties of all in this respect."
- Article 50 states: "The public authorities shall guarantee,
through adequate and periodically updated pensions, a sufficient
income for citizens in old age. Likewise, and without prejudice to
the obligations of the families, they shall promote their welfare
through a system of social services that provides for their
specific problems of health, housing, culture and leisure."
- "La elaboración de la Constitución", Miguel
Herrero y Rodríguez de Miñón
- Admitidos los recursos de Aragón, Valencia y
Baleares contra el Estatuto catalán. hoy.es
- Solbes cuadra un sudoku de 23.000 millones ·
ELPAÍS.com
- "Solbes rechaza vincular la nueva financiación a
las balanzas fiscales", El País. 03/12/2007
External links
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