Notes for a Reform of the Spanish Constitution of 1978

 

 Portada Constitucion 78

Notes for a Reform of the Spanish Constitution of 1978

Andrés Boix 

Prof. Constitutional Law, Valencia University

There are reasons to believe that the moment of making a profound deep change might have arrived, a change that would turn the country upside down. It is a fact, that right now, there are reasons enough for such a change. Only few question the institutional, social and economic collapse in which Spain is immersed nowadays. Neither is it questioned that among its causes there are many that have to do with Law, this means, with the way we decided to organize ourselves. And some of them, surely have to do with the norms that regulate at a very basic level our institutions, this is, our Constitution.

On the other hand, it seems obvious that, changes -mainly when it comes to social dynamics- more or less profound they might be, do not only need to be undertaken. But must also be “noticed”, must be seen and considered as important. Very likely, Spain does not only need to change some rules, not just give a new coat of painting to the surface, and then expect that everything will improve from what has already been acquired. It is not preposterous to believe that something bigger than that is needed. Something that could induce catharsis so that, beyond Law, norms, rules and the incentives that these suppose, a sort of social deal 2.0 is renewed. A deal through which we commit ourselves within an improved and more optimistic public ethics. In order to achieve this, a constitutional rupture contributes emotional and symbolic components that a mere set of touch-ups cannot aspire to provide. This is, for instance, one of the most interesting points of the so called “Catalan process”, all differences considered, which increasingly meets more supporters of the independence. The idea is not starting from scratch but that it seems so. The feeling of having everything left to do and to design, of being able to plan with the will of improvement, that even mistakes, which are somehow inevitable, are seen as belonging to the future, not to the past. The whole idea is, doubtlessly attractive. It all supports too, the arguments in favor of starting a constituent process. Or at least, giving it a try.

Nevertheless, I personally do not believe that we are in the right moment to work for such a rupture. Several reasons, including the most pragmatic ones that refer to a more objective evaluation of the situation, make me personally lean towards the believe that working for a Constitutional Reform (a quality one) would be, right now, more worthwhile. There they go, synthesized, some of these reasons.

1. Are we, right now, capable of getting society agreed upon overcoming the constitutional frame? Sincerely, I don’t think so. And I basically don’t think so because almost every social surfeit is economy-related, and the extensive hopeless circumstances that we now meet are not an exception to the rule. However, nowadays, a big majority of the Spanish population is more frightened about what the future may bring regarding the loss of rights and standards of living or about how to defend what is left from the “European” welfare – understood on the terms of the second half of the 20th century- than they are concerned about fighting in order to achieve new levels in those same domains. This means, it is not that much about society not looking towards the future, but that when they do, they think “Oh Lord, oh Lord…” which reveals a bigger interest on keeping as much as possible from what they already have than on making any profound transformations. In this sense, the economic crisis, as rough as it may be, has not yet reached (neither is it expected or wished that it does) a poverty threshold such, that a major and extensive discomfort is generated, thus the will of radical and total change widely felt. The level of wealth reached in the West on the last decades, especially in Europe and by extension in Spain, allows the existence of social and economic safety networks which are also mechanisms of legal safety regarding the stability of the regime and of the institutions. Sincerely, without this necessary breeding ground, it is very difficult to think of a popular will that may support this rupture in a realistic way.

2. Isn’t there anything worth keeping from the Constitution of 1978? Of course there is. On the contrary, there is a lot to, almost everything. It would have no sense to squander it and, even in a constituent process, there is no reason not to make use of it. There is nothing wrong on visualizing that much of the Constitution of 1978 is fine and has been useful. Furthermore, if we analyze the reasons behind the social unrest, there are actually not that many of them that find their reflection on the Constitution. Even though, some of them do, like all those behind the “No nos representan” shout (very popular shout minted during the Spanish protests of 2011 meaning “They don’t represent us”). This is why; it seems more sensible to make use of experience, to benefit from what we were taught by all these years of constitutional regime and then built preserving the good things we already have. Once mistakes and problems are detected, then we can start working to fix those specific points and avoid, like this, a waste of efforts. Which has also the advantage of being easier from every point of view. It is surely easier to reach an agreement about a few retouches that need to be undertaken in some specific areas, not only technically but politically too, since a constitutional amendment is above all a political matter. It will be much easier to find a basic common ground, needed for such a process, thus be able to tackle those basic points, than ratifying an entire change.

3. Moreover, the Spanish Constitution of 1978 has some quite good things. Among them -due to the moment when it was signed and written, the late seventies- the fact that it gathered an important legal consensus regarding guarantees, distilled all along the 20th century, mostly, after the II World War. Taking into account also the fact that ours was one of the latest Constitutions of that time; we had the chance to copy other’s solutions. As a result, our fundamental rights, for instance, as well as the mechanisms to protect them are solid and civilized. This entire legacy must be esteemed and protected. This is easier to do with a more limited reform. For example, regarding fundamental rights, different changes could be put forward. Those that could contribute to the experience already gathered: for instance, the right to universal healthcare could be introduced, even if the practical consequences of such an implementation would be mostly scarce, at least if we behave with immigrants as we have been doing in Spain recently.[1] Also changes that could improve the precepts technically, those that need written clarification on the text itself: the right to strike and technical details about the privacy of information, which, despite of being more a technical than a political problem, are not very well worked out. Or even changes that could eliminate those rights which make no sense to be considered as fundamental: reference to Honor Courts on Section 26[2], and even the “Petition Right” of Section 29[3], which could leave some place for many other fundamental rights!

4. If the amendment does not revise the contents of Section 168 of the Spanish Constitution (EC) -this is, if none of the first Sections are modified, including the definition of basic living together guidelines, nor the fundamental rights nor the Crown- it can be remarkably easy to undertake if a political consensus is reached. Like the  express  amendment of Section 135 EC has proved[4]. It is an additional advantage, further than its very unfortunate use up to date, which we better not lose sight of in order to promote a major social and political commitment in a certain sense, in a certain direction. Because the fact that the Constitution can be amended easily if there is support to do so, is not a bad thing, but a good thing. Let’s take advantage of the evidenced possibility of doing so.

5. The Spanish Constitution of 1978 knows also obvious deficiencies, and these deserve attention too.  This, by the way, can be much easier to accomplish if we focused on them instead of starting a much bigger and more ambitious process from scratch. Beyond symbolic deficiencies (persistence of the old regime and certain iconic representative elements), we can name hundreds of aspects where a constitutional reform seems urgent. They all have to do with the main original sin of the Constitution of 1978, its autocratic nature, its elaboration “from the top” and with very little trust on popular participation “from the bottom”. The funny thing about them all is that every single one of them could be amended without modifying Section 168 (a reform that would be easy on its procedure, if a prior and wide enough political agreement have been reached):

– Territory issues, in other words, days; a revision that, no matter what, should include  amelioration of the autonomic funding in order to make it more simple, fair and corresponsable).
Citizen participation in the conformation of legislative decisions, more referendums, possibility to abolish or a wider scope of the popular legislative initiative; similar to the propositions which, for instance,   have already been taken to certain autonomic parliaments supported by university teachers;
-Political representation and elective system where profound changes will surely be welcomed.

Deep down, I believe this is mainly all that should be altered from our Constitution. I think it could be more interesting -since experience proofs that specific rights and other measures are rarely imposed in a different way- that the Constitution focused on following the rules of the game and above all that we have those rules analyzed to see if they are good and fair.

6. Likewise, the convenience of certain symbolic amendments could be questioned, seeking that innovative effect, via amendments, which could somehow have the effect of an “injection” of the needed social optimism that a constituent process can generate. For example, reforming Title II (on the Crown) of the constitutional text, demands getting to the worse procedure of reforming Section 168, and changing the configuration of the State. This is, eliminating once and for all an institution such as the Monarchy. Not only toxic but which is also the incarnation of the problems of the regime and the continuity of the text of 1978 under Franco’s dictatorship. The Constitution of 1978 had many good things, also symbolically, and it implied the transition to a democratic State of Right. But also, around this last point, it committed and it still does, an original sin: its vertical strictness and the lack of confidence in the people, inherited from the regime it comes from and from which it did not want to abjure. This original sin, when being essentially fleshed in the Monarchy -and specifically in the dynasty designated by Franco to take his place in the Headquarters of the State- has the advantage, of having an easy symbolic solution with a reformation that would replace it for a Republic. And the purifying effect of a constituent rupture would be obtained with a “simple” amendment.

7. Finally, my reformist option, which makes use of different scenarios also has to do with pragmatism. Pragmatism at two different levels. On one hand, because I believe it is a good thing that certain constitutional consensus reached in 1978 are not questioned (mostly those concerning guarantees) and this is always easier to avoid in a partial reform context than in a constituent process scenario where everything is questioned. That is to say, to be honest, I do not feel very inclined to risk many of the rights and guarantees that our constitutional frame offers at the moment. Doubtlessly such a risk exists when we get into a whole amendment because, obvious as it is, everything can be kept or not, can be rewritten and reinterpreted. Some aspects would generate more debate and would draw more attention. Many others, however, would be unnoticed. Some could stay in a background stage and may be changed for the worst or the better, but reaching a weaker consensus and generating less debate than what it would be required if acting on them individually. Sincerely, I prefer not to take that risk, in order to avoid that some loss may end up being more of a disappointment than a rewarding acquirement. We must not lose sight of the fact that a constitutional amendment can be seen as an improvement for some, but depending on the point of view can also be taken as a deterioration of a previous stage. Well, me myself, I accept that something like this happens in a public debate scenario, where people is focused and where there are possibilities for a major participation and where attention is paid to what is needed. But in a context of massive change, I get scared by the thought of what could be modified by those with the most resources. Modifications without going through the democratic and inclusive “tolls” which would be developed if that same process happened in a more selective way.

However, my opposition against amending the text of our Constitution as a whole is mostly based on the thought that, beyond a certain point, a Constitution is not that important. Indeed, neither should it be. This is why I have not included among my suggestions of amendment, but that I do consider essential, any social or material justice issues, distribution or means for major guarantees. I believe that these rights and conditions are won (or not) on a day to day basis, with legislation and political majorities, wining those  battles instead of a constituent fight. For instance, what happened with a regulation in force like ours, where a Constitution considered quite “progressive” in terms of distribution has not been that much when put into practice…because that is achieved with other mechanisms. And it is not just affecting social and economic rights, despite it might be there where this effect is more visible. It happens in any constitutional-legal field we look at.

Thus, with the Constitution of 1978 many things have been possible, however, many others haven’t. But not because of the Constitution. Let’s keep in mind that, in a month, it has been possible to amend it in order to introduce a public deficit, but barely for anything else. Let’s keep in mind that during these years we have passed about a dozen labor reforms, but not a single strike law. Let’s try to understand that the Spanish jurisdiction is able to judge any dictator around the globe, who has tortured and murdered people (Spanish or not); but, on the other hand, it hasn’t been able to end with the many street and square names that still celebrate the Warlord and his closest ones all around the country. With the Spanish Constitution it has been possible to joyfully vote on subjects of great consensus, like the referendum for the European Union; but however it is still not possible to vote on something much more socially controversial -indeed much more reasonable to vote on, as many Catalan political forces already suggest- which is the territorial debate. Or it has been possible to supply with a government and a parliament to the city of Logroño and its surroundings (300.000 inhabitants) while Andalucía and Cataluña, which both surpass the population of half the European countries, do not yet have an effective fiscal and financial autonomy (not even to collect taxes) to be able to assure the exercise of its competences (major or minor they might be)… With the Constitution of 1978 it has not been possible to stop teaching religion at school, but blasphemy and crimes of spreading derision and opinion are still today punished by our Penal Code. Also thanks to the Constitution of 1978 some reforms have been accomplished regarding citizen safety, as the one passed on 1992, or the coming one, as well as the many deals in the name of Justice while it seems an exception that someone imprisoned by the State and whose innocence gets to front pages, afterwards may not even be compensated by the inconveniences. With the Constitution of 1978 it has been possible to illegalize parties that represented between the fourth and the fifth part of the electorate of the Basque Country, and on the other hand, it has been possible that neighbors can effectively participate in the administration of their municipalities through a transparent and participative control… and we could go on with a longer list of examples of the many paradox and contradictions. They all comprehend many more things but they mainly point to the same direction: the regime of 1978. Its very concrete and determined profiles which, however, are not the result of the Constitution itself but of how we have operated inside it.

But all these, for the good or the bad, did not have to do with the Constitution of 1978. It had to do with the concrete balance of forces and power that, since 1978, there is in Spain and that, through rupture or reform, with constituent process or without it, is what determines what we are as a society, which way will we go and how things will go for us. There is where, beyond adjustments (many of them necessary and welcomed) we should work on the Spanish Constitution. Work on winning those battles, because they are those that define a country of one type or another. This needs to be very present.

Very specially, and very likely, because the coming battles, in the shape of a constitutional reform (or reforms) of minimums, are going to go in that direction. And they are going to counter some of the above-mentioned results, as well as the confrontation dynamics we use (center-periphery, elite-bases, state control-participation…). We must be prepared and stay pragmatic, be more or less conscious of something which is, very likely, coming soon. Because, at least by now, things are the way they are, and it does not seem that we are going to meet a massive citizen rebellion from the base facing those claims and the current way of doing things.

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Notes:

[1]Undocumented immigrants in Spain have not long ago been banned to use public healthcare other than emergencies.

[1]Section 26

Courts of Honour are prohibited within te framework of the Civil Administration and of professional organizations.

[1]Section 29

  1. All Spaniards shall have the right to individual and collective petition, in writing, in the manner and subject to the consequences to be laid down by law.

Members of the Armed Forces or Instututes or bodies subject to military discipline may only exercise this right individually and in accordance with statutory provisions relating to them.

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