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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The privileges of Catholic Church in Spain

THE SPECIAL TREATEMENT OF THE CATHOLIC CHURCH IN SPAIN IS OUTRAGEOUS FOR THE RULE OF LAW

columnas-y-arcos-de-la-mezquita-de-cordoba

Cordoba’s Mosque is an “inmatriculated” building by Spanish Catholic church.

Francisco Delgado

The Concordat between the Spanish State and the Holy See in 1979 is in harmony with those signed by Queen Elisabeth II of Bourbon in 1851 and the Spanish fascist dictatorship in 1953. It is important to note that the latter has never been abolished, even if many of the articles have been superseded by the 1976 and 1979 Agreements.

Back in those days these Agreements were a ruse to the secularism established (if in a very confusing way) by the Monarchic Constitution of 1978.

After 35 years, not only has the Catholic Church kept those privileges, but its power has increased remarkably in economic and fiscal matters, as in education and social services, and even in areas related to symbolism (with the complicity of the majorities in Parliament and the Governments in power until this day). Furthermore, Spanish Governments have often allowed themselves to be “intimidated” by bishops with a faith-based morality. In other cases, they simply concur with it, as is the case with the current People’s Party.

As opposed to the confessional-state position of the public institutions, the Spanish society is widely secular, especially the younger citizens. This fact is proved by dozens of sociological studies. 20% of the Spanish citizens define themselves as “practising Catholics” —only 10% of the citizens under the age of 35. Approximately 30% of the population under the age of 50 is composed by agnostics, sceptics, freethinkers, atheists and people indifferent to the subject. Less than 5% of the population is formed by citizens who actively practise other non-catholic religions. Finally, those who profess a deistic spirituality (or other forms of spirituality) aside from official religious corporations reach approximately 50% of all citizens.

As for the privileges that the Catholic Church enjoys in Spain, some conclusive data have been published indicating that the majority of the population rejects these privileges and stand for the annulment of the Agreements with the Holy See.

In a recent study published in May 2013 by the Spanish radio network Cadena SER on “politics and political parties”, it was shown that 60% of voters of all political parties stand for the abolition of the privileges that the Catholic Church enjoys under the Concordat. Only 22% of the population that was interviewed supports the special treatment of the Church, whereas 18% did not answer. Nevertheless, it is of utmost importance to note that 81% of the voters of the Spanish Socialist Party (PSOE in Spanish), and 88% of the voters of the United Left (Izquierda Unida in Spanish) are against those privileges.

*The complete survey can be consulted in the following link [in Spanish]:

The great privileges of the Roman Catholic Church in Spain are also criticised by many Catholics, even by important ecclesiastics and theologians. For instance, the organisation “Cristianos de base de Madrid” (“Basic principles of Christianity in Madrid” [non-official translation]) has sent a letter to the current Spanish Prime Minister, Mariano Rajoy. In their letter, members express that “it is difficult to understand the current situation, which is nothing but an anachronism”. Regarding Education, they said that “teaching a religious faith does not belong in schools but somewhere else, and other agents must be in charge of it: temples, synagogues, mosques, etc. If it still persists nowadays like this, it is because of the fact that the Agreements with the Holy See guarantee and protect the ideological control of consciousness of the Church. Furthermore, we find most irregular that the State has to pay the salaries of religion teachers, while bishops have a complete freedom to hire and dismiss them. This is an exception to the regulation applied for the rest of the Spanish teaching staff.”

The organisation also claims that the Government of Prime Minister Rajoy must adopt measures on the social and cultural front: “(…) Furthermore, the Agreements are contrary to the democratic logic, since they strengthen the omnipresent position of the Church in institutions and other places where its presence is not required, such as hospitals, the Army, civil ceremonies, etc. One must never forget about its constant attempts to interfere in social policies and the legislative processes that regulate civil rights, public order, researches, etc. This coercive power is incompatible with the ethical and cultural pluralism of the Spanish society, and is also incompatible with the preservation of the freedoms enshrined in our Constitution.”

As a result, the missive concludes by asking for the State to provide “a new legal frame that protects the freedom of conscience and engages in the consolidation of a public ethics, based on the respect for Human Rights and the democratic principles and values that are enshrined in the Constitution”. The organization adds that “no religious faith or world views of any kind can impose a moral code to the society. The freedom of conscience comes first and must prevail over the liberty of organisations to extend their own set of beliefs and opinions.”

On the economic front, this group of citizens who profess the basic principles of Christianity holds that “the Agreement on Economic Affairs, as many other legal rules adopted afterwards, assign a set of privileges to the Church that ‘cannot be justified in a democratic State’, such as subsidies, tax exemptions and special rights for the acquisition of real estate properties. (…) On the contrary, the Catholic Church is the largest owner of real property in Spain, and fails to meet its commitment to finance itself. This was admitted by the very Church in the abovementioned Agreements, but it still asks for more state subsidies, even if, right now, these are above €10 billion every year.”

Casilla IRPF iglesia

Income tax return form in spain ( 0’7%) to benefit to the Catholic Spanish Church.

This is a matter of political will. It does not have anything to do with legal aspects, like some hypocritical politicians suggest. With this aim, since its foundation in 2001 the partnership project Europa Laica (“Secular Europe”) has organised programmes, public campaigns and actions, signature campaigns, and complaints. We have been agitating and trying to promote a public opinion that will support secularity as a political process in the institutions of the Spanish State, so that all faiths are respected (always in a democratic frame). In order to accomplish this, we intend to push politicians to:

  • Change the current tax legislation, as it gives the Catholic Church the possibility to enjoy some tax exemptions, especially concerning the tax on ownership of real property (“Impuesto sobre Bienes Inmuebles” in Spanish). This means that the Church is not bound to pay this tax, unlike the rest of the citizens.
  • Change the legislation relative to mortgages and the existing regulation. This legislation allows the acquisition by the Catholic Church of public property, in a legal process called “Inmatriculación” that is detailed at the end of this article.
  • Change the tax legislation. Under this legislation financing is being provided to the clergy for masses and the search for religious affiliation.
  • Change the laws so that religion is never again in schools and so that the dogmatic catholic teachings are not partially financed by the State through educational subsidies. At this point, it is important to note that cases of gender segregation can be found in many of these schools that receive state subsidies.
  • Change the legislation in order to do away with the symbolic confessional nature of the State institutions, including the monarchic Head of State, the result of a fascist heritage.

Thanks to different economic circumstances and tax allowances granted by the State, the Catholic Church receives each year more than €11 billion in Spain. Its lack of transparency and enormous wealth are of utmost importance. Under the abovementioned mortgage legislation, it has managed to acquire more than 4,500 public properties in the last ten years, such as the Mosque of Córdoba, all this with the consent of State authorities.

*You may find this information with more detail in: www.laicismo.org [in Spanish]

Some years ago, Gonzalo Puente Ojea (Spanish ambassador in the Vatican with the first Government of the Spanish Socialist Party or PSOE) had denounced that former Prime Minister Felipe González told him that “we do not argue with the Church”. This is the culture that the political power has transmitted throughout these 35 years in a very unfair way.

The dictator Franco and Toledo’s Bishop, Enrique Pla y Deniel, in 1954, Palacio Real, Madrid. The Catholic Church and the Franco dictatorship supported each other.

Not only because of political reasons (in a country which is supposed to be mainly catholic) or because of the possible actions from bishops, but especially because there have been a series of lobbies that have been acting with impunity inside the political formations, like advocates of the historical privileges of the Catholic Church. They have often served the hierarchy and its “moral cravings” and sometimes, like nowadays, they support the charity work that manages to conceal the multiple “cardinal sins” that the ecclesiastical power has committed.

These catholic lobbies had names, and still have them. They are formed by individuals and organised groups that have operated inside all political parties since the democratic transition, and thus since the beginning of democracy. Some of these people (and their “political heirs”) collaborated with the fascist dictatorship and “moved to democracy in a blink of an eye”: becoming affiliated to right-wing, centre and left-wing parties (especially from 1976 on), adopting Christian democratic political positions and also promoting the Catholic unionism. (*)

In order to leave things unchanged, the different political majorities (PSOE and PP, minor groups and nationalist parties such us PNV in the Basque Country and CIU in Catalonia) have given systematically the explanation that the Agreements are part of the International Law. But they are a legal fiction, since they cannot be considered as such under the Vienna Convention on the Law of Treaties (1969), because the Vatican is not in fact a State. But, mainly, because they violate undoubtedly some principles of the Spanish Constitution of 1978 (articles 93 and 96), so they are null and void.

This will not change without majorities in Parliament, and the Church will continue to enjoy its prevailing role in economic and symbolic affairs, a role that is more and more embedded in a time of crisis like this, thanks to the “charity work” of the Church. Beside this fact, in a moment when public powers refuse to accept their mission to compensate disparities and are obsessed with privatising everything, they give huge amounts of public resources to the Catholic Church so that it can organise its particular “Christian charity”. This means millions in economic contributions to the healthcare and education organisations of the Catholic Church.

These privileges are humiliating for a democracy. The Church is taking advantage of its position in order to lobby the civil power with its particular set of moral rules, eliminating rights and freedoms, especially the freedom of conscience and freedom of speech, and so putting an end to the human dignity.

Catdral_Almudena_en_Madrid

The Catholic Church in Spain collected around €249 million from the tax-form checkbox last year, according to Spanish newspaper “Público”. Photo: Almudena`s Cathedral, Madrid.

This evil situation that surrounds us and that kills progress, equity, and justice stems from the neocon ideology, promoted in the financial sector, but also in powerful religious institutions (specially the Catholic Church and the most conservative Evangelical ones) that see religion as an instrument to provide institutions with exclusive and segregationist ideologies in the political, economic, social, philosophical and scientific spheres (pseudoscientific, given the rise of creationism and the limitations to the progress of biological research). They are becoming stronger, but at the same time they risk destroying themselves…

We are deeply convinced that the road to a Secular State is the utopia of all utopias, but that does not mean it is not beautiful to fight for it. Because of this and all the things that the Age of Enlightenment taught us, we try to stay enlightened with the ideas of fraternity, solidarity and justice in the res publica.

Consequently, among other urgent measures, we support:

  1.  The annulment of the Agreements with the Holy See.
  2. The organisation of a debate in the Parliament for the passing of a Law for the Freedom of Conscience.

Francisco Delgado – President of Europa Laica (http://www.laicismo.org/europa_laica)

Since 2009 “Europa Laica” (“On the one secular Europe“) has proposed the following article:

http://www.laicismo.org/data/docs/archivo_123.pdf [in Spanish])

(*) The Catholic trade union is a model proposed in the Rerum Novarum encyclical, issued by Pope Leon XIII. Its objective is to reduce the revolutionary force of class-based unionism that appeared in the 19th century. In Spain they adopted the form of groups of workers, brotherhoods, cooperatives, savings banks and friendly societies. In 1916 the National Federation of Free Catholic Unions was created (“Federación Nacional de Sindicatos Católicos Libres” in Spanish), which was probably the predecessor of the Workers Brotherhood in Catholic Action (“Hermandad Obrera de Acción Católica”), founded in 1946.

The two faces of the Church: the Catholic Church realised in the midst of the fascist dictatorship that the people was becoming more and more dissatisfied with the political regime, and thus it had to take into account the possible repercussions if it continued supporting the dictatorship, especially in a moment when some important catholic, secular and ecclesiastical individuals started to separate from the political regime by criticising it. With this move, they intended to lay the groundwork for a catholic opposition movement that could claim the right to play the main role in the Spanish political life, if the dictatorship should fall.

Christian workers and activists from the Workers Brotherhood in Catholic Action adopted a very important role in the process of recreating the Spanish labour movement. They helped found the workers union “Unión Sindical Obrera” (a part of which was later absorbed by UGT, the General Union of Workers). Furthermore, they participated in the formation of the first Workers’ Commissions (“Comisiones Obreras” in Spanish), working with renowned communists and independent workers.

Officially or tacitly, the Catholic Church has approached democracy in three different ways: during the transition to democracy, a great number of bishops, cardinals, ecclesial movements such as Communion and Liberation, Opus Dei, etc. adopted the most reactionary political positions. They started to support centre and right-wing political parties and the newborn monarchy, heir to the fascist dictatorship. Others turned to nationalist and separatist positions in the Basque Country and Catalonia. The third option was that of the social or charity work (“obra social” in Spanish), supported by some Christian democrats and the catholic unions, opposed to the dictatorship and included in left-wing parties.

What are the so-called “Inmatriculaciones”?

“Inmatriculación” is a legal form that allows the Catholic Church to claim ownership of properties that are not registered in the Spanish land registration system, under the article 206 of the mortgage legislation established on the 8th of February 1946 and José María Aznar’s decree-law of 1998. Thanks to this, the Catholic Church is considered to be at the same level as Public Law Corporations, such as municipalities, provinces and the very State, and bishops and archbishops are given the same rank as any public official when it comes to certifying that a property “belongs” to the Church.

 

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FROM PHILIP V TO PHILIP VI: THE STRUGGLE OF THE CATALONIAN PEOPLE

By Francesc Xavier Hernàndez Cardona. Historian. Professor at Universidad de Barcelona

felipe_vBandera Catalana - SeñeraFelipeVIestelada

The Peace Assembly and the Toluges Truce, called by Catalan bishop Oliva in 1033, initiated a special political dialogue process in the Catalonian counties that would made possible different political views. The Counts of Barcelona agreed to govern in a Cortes system with laws or ‘constitutions’ approved by consensus and with representatives of the nobility, the cities and the Church. As the time passed by, the number of constitutions restricting the power of counts and kings in Aragon was increasing, and led to an early constitutional political system that said that the king should respect and comply with the Cortes’ laws. Thanks to the increasing constitutions, the Catalonian Government was able to avoid the power voracity of the monarchs between the 16th and 17th centuries. During that period, the Catalonian strong identity feeling was based on the rights and duties according to the law, like it would later happen in the liberal revolutions; in other words, its basis was political rather than cultural: a Catalan was someone enjoying the freedoms provided by the constitutions. But when in 1700 the Habsburg King Charles II died without issue, the new King Philip V made things more difficult, leading to the first great European war.

The War of the Spanish Succession was a terrible confrontation between two concepts about the future of Europe and the world. Louis XVI of France and his grandson, Philip the Duke of Anjou (who would later be Philip V of Spain and I of Aragon), had their minds very clear: they wanted a global totalitarian dictatorship with which they could erase any constitutional desire. From 1700 on, Louis XIV, who had France, the Spanish kingdoms and the respective colonies in his hands, cherished the universal monarchy. But there was an opposition against this desire of the constitutional powers for democracy and industry: England, Holland and the benevolent monarchy of Austria, which was respectful with the freedoms of its people. This progress suggested that the Archduke Charles, Charles III, could take charge of the Spanish kingdoms and states. Charles counted with lots of supporters in Castile and Aragon and with the enthusiastic support of Catalonia, the small country that had the leadership regarding experience and constitutional development for democracy and industry. The survival of the Catalan constitutional state depended on the success of the allied forces. Catalans, Aragoneses, Valencians, Majorcans and many Castilians fought determinedly against the absolutist atrocity.   Sigue leyendo

Monarchies, Republics and Democracy

MONARCHIES, REPUBLICS AND DEMOCRACY

By Miguel Ángel Presno Linera
Law Professor at the Universidad de Oviedo, Spain.

 Abstract:

In this text, professor Presno Linera makes an overview about the different kinds of governments, both in a republican system and in a monarchy. Professor Presno stresses the idea that republic and democracy not always go together. Thus, there are lot of European states, like Great Britain, Netherlands, or Spain, as example, that have a monarchy but they are democracies. First, Professor Presno explains the different types of monarchies have been in Spain since the liberal revolutions in the 19th century to the actual Spanish constitution. Secondly he makes an explanation on the different types of republics, in this case looking to the American republics and some of the Europeans.

            Introduction

Throughout history, monarchical and republican systems have followed one another in different states and have experienced different changes throughout centuries. As is well known, a simple way to differentiate between Monarchy and Republic is that in a monarchy the position of the Head of State is hereditary and held for life; whereas in a republic, the Head of State is elected, either by the citizens or by other constitutional bodies, and its position is time-limited.

According to these premises, a priori, a republic seems to be more democratic than a monarchy, since in that system, most people could hold the position of Head of State (although normally with some restrictions as being of legal age or born in the country), this position would be temporary and its appointment would depend on an election of some kind. This is true; however, democracy can have some gradations and still be a democracy. To sum up, there are lots of states, such as Great Britain, The Netherlands, Sweden, Norway, Denmark or Spain, in which the monarchy does not stop them from being democratic, since in essence, a democracy involves its citizens effectively taking part in the election of the government of public affairs, but it does not really imply them to choose every state organ. Members of the judiciary (judges and other court constituents) are not usually elected directly in Europe; however, their source of legitimacy is democratic, since they apply rules, such as the Constitution and the applicable law, that have to be approve, directly or indirectly, by the citizens. Sigue leyendo