The 'Spanish Constitution of 1978' is the culmination of the
Spanish transition to democracy.
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 Constitution's fathers. These seven people were chosen to represent the wide (and often, deeply opposed) political spectre 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'' ("
wheat-colored") for the plain ''amarillo'' 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), Spain has a decentralized system in practice.
'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 defition 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
[1],
employment[2],
social welfare provision[3],
health protection[4] and
pensions.
[5]
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 facilitatation of access by workers to ownership of the means of production, were also enshrined in the Constitution.
[6]
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
socialist 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, announced her first and second pregnancies and after the birth of the
Infanta Leonor of Spain. The Prince has however reminded 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 skepticism from some quarters (notably the main opposition party
PP) because some of these reforms affect ''protected'' sections of the constitution, which would require strong
supermajorities in order to be modified (see below). Furthermore, even an amendment of a non-protected part of the Constitution would require PP agreement, because requires the support of 3/5 of each
House, which is 210 votes in the
Congress of Deputies and 156 in the
Senate. The maximum majority ''without'' the PP is 202 votes in the Congress of Deputies and 133 in the Senate.
Amnesty International has also proposed that the Constitution abolish the
death penalty.
The current redaction allows it only during wartime, but it has since been removed from the Code of Military Justice and, hence, lost all factuality.
Protected provisions
Title X of the Constitution determines that the approval of a new constitution or the approval of any constitutional amendment affecting the Preliminary Title, or Section I of Capter 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, (3) that two thirds of each new Houses approves the amendment, and (4) that the amendment is approved by the people in referendum.
Curiously, it is worth noting that 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
Due to the territorial organization of Spain, the "Statutes of Autonomy" of the different regions are the second most important Spanish legal normatives. Because of that, the reforming-attempts of some of them have produced considerable controversy or have even been rejected.
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 amounts to an implicit reform of the Constitution.
The People's Party attempted to reject the admission in 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.
References
1. 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".
2. 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."
3. 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."
4. 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."
5. 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."
6. "La elaboración de la Constitución", Miguel Herrero y Rodríguez de Miñón
External links
★
Spanish full text at the site of the 25th anniversary, also in
Catalan/
Valencian,
Basque,
Galician and . Unofficial translations
in English French.
★
Constitución española de 1978 at
Wikisource
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