On December 6, Spain celebrates constitution day, Día de la Constitución. Three years after the death of Franco, the Constitution of 1978, one of about a dozen constitutions throughout Spanish history, was ratified. Though a victory for democracy, the road to a new constitution was lined with conflicts, and the fronts in Spanish politics and society were fierce, thus the new constitution ended up a compromise, penned by a committee of seven men described as masters of “the art of round formulations”.
Despite or perhaps because of its compromises and vague language, the constitution remains at the heart of conflicts right up to the present day. Look no further than media coverage on December 6: On the 40th anniversary of the constitution in 2018, King Felipe of Spain spoke in the National Assembly, where several representatives remained absent in protest. Through celebrations, compromises, vacant seats and protests, December 6, remains a tender day in Spain.
The fathers of the Constitution and the people
December 6 is a public holiday throughout Spain. The date itself coincides with the day Spanish voters went to the polls in a referendum on a proposed new constitution in 1978. The new constitution was seen as a foundation to ensure Spain a democratic system of government, a grand finale for the gradual democratization process that had taken place after Franco’s death in November 1975.
The Spanish National Assembly, Cortes Generales, approved the draft Constitution on 31 October. In the referendum that followed on 6 December, as many as 91.81 per cent of those who cast their ballots gave their support to this draft constitution. In other words, an overwhelming majority supported the new and democratic constitution.
Spain’s current constitution dates from 1978 and reintroduces democracy.
The front page of the constitutional document from 1978 is elaborate.
With room for personal interpretation
Such a vote in a society as divided as Spain was not an easy task to achieve. To prepare a constitution that could bring together as many people as possible, a committee consisting of seven members of the National Assembly was appointed. They were called the Padres de la Constitución, i.e. the Fathers of the Constitution. Given the position of women in Spanish politics and society today, it should be noted that no women were elected to the Constitutional Committee in the late 1970s.
The men were initially chosen because they represented a wide range of political views and parties in the National Assembly – but they would also prove to have a good grasp on writing in ways that sounded both impressive and correct while still being flexible.
The seven men understood that in order to have hope of gaining support for the proposal both in the National Assembly and more broadly with the population, the constitution had to be formulated in “round” terms that could be understood in more than one way. This is clearly visible in the final text.
Senator Camilo José Cela, author and king-appointed member of the Spanish House of Lords, learned that clear speech was far from valuable in itself when he was assigned the task of editing the draft constitution. Very few of his suggestions for more easily understandable words and concepts were accepted.
The draft constitution was finally adopted when King Juan Carlos endorsed it in a ceremony on December 27, 1978. The constitution entered into force when it was published in the Boletín Oficial del Estado, the official bulletin of the Spanish state, two days later.
A new constitution, among many
The 1978 constitution is by no means Spain’s first, not even the country’s first democratic constitution, at least according to a modern interpretation of the concept of democracy. From the first constitution in 1808, a dozen constitutions or constitution-like documents have formed the basis of the country’s governance.
The 1978 constitution replaced Franco’s so-called basic laws. By the way, he preferred the term “fueros” taken from the Spanish Middle Ages, rather than constitution. In “fueros” lies an understanding that these were laws that could neither be discussed nor changed in line with changes in the public opinion. They were to be lasting, unchanging and determined by a sovereign leader.
Francos “fueros” replaced what is widely regarded as Spain’s first democratic constitution, the one adopted in 1931 as part of the formation of the Second Spanish Republic. That constitution was such a radical break with the past that we will present it in a later article. Some examples: introduction of universal suffrage also for women, civil marriage and divorce, free and secular schooling, separation of state and church and the possibility of nationalizing private property.
Throughout history, Spain can boast of constitutions or constitution-like documents at near dizzying speed: in 1808, 1812, 1834, 1837, 1845, 1856, 1869, 1873 and 1876. In this article we will resist the temptation to detail them further, but they testify to a society marked by significant conflicts of interest. The topic today is, after all, the Constitution of 1978, which is celebrated on 6 December.
The 1978 edition
The 1978 constitution reintroduces democratic governance – on that point, the fathers of the constitution are unanimous and clear. Other points in the text are not always as clear.
In addition to an introduction, the text of the law is organized into ten parts, in Spanish called “títulos”, each dealing with its own main theme. Democracy as a form of government is established both in the introduction and throughout the document. For example, the first article of the law states that Spain is “a social and democratic state”. And the 1978 law is the first Spanish constitution that does not give the head of state, who today is King Felipe, the opportunity to introduce emergency laws, including removing the country’s prime minister or dissolving the national assembly.
The first main part of the legal text deals with fundamental rights and obligations. Part 2 establishes the role of the monarchy and the royal house. Part 3 deals with the Spanish Legislative Assembly, the Cortes Generales, and its role. From there it goes from strength to strength: part 4 deals with government and administration, part 5 with relations between the government and the Cortes Generales, part 6 with the judiciary, including the tasks and functions of the judiciary. Part 7 deals with economics and finance. Part 8 has a title that can be translated as «the territorial organization of the state». This part includes formulations that have been up for debate more than once, but more on that a little later. Part 9 presents the Spanish Constitutional Court and its responsibilities and role, including the task of the court to assess whether laws and regulations are contrary to the Constitution. Part 10 is entitled «Constitutional amendments».
Territories, nations and nationalities
The fathers of the constitution of 1978 were aware that if a new, democratic constitution were to gain general support, one had to not only get support from the right and left in politics, but also recognize Spain’s regions, different languages and ethnic groups. Significant regional self-government contrasted with the Franco regime’s emphasis on a strong central government ruled from Madrid. Franco did not leave much room for minority languages, culture or regional self-government.
In the constitution of 1978, on the other hand, different regions, languages and nationalities are recognized. Spain introduces a kind of federal model, where the country is an association of 17 regions with a greater or lesser degree of autonomy. The introduction of states that the Spanish nation must (FYS’s translation): “Protect all Spaniards and the peoples of Spain in their exercise of human rights, of their culture and traditions, languages and institutions.” Similarly in paragraph 3 of the introduction it says: “Castilian is the official Spanish language of the state.” A little further down in the same section, however, it is stated that the other Spanish languages must also be official in their respective autonomous societies in accordance with the statutes of these regions. The relationship between the role of the central government and regional governments is also repeated in Part 8, and once again the text allows for rather different interpretations.
The debate about how much autonomy can be allowed under the constitution has in no way subsided since 1978. In 2010 the country experienced what is often referred to as a constitutional crisis. The backdrop to this was that Catalonia in 2006 prepared a proposal to amend its statutes that would make Catalan the preferred language in the region, to recognize Catalans as a separate nation and free Catalonia from financial responsibility for the rest of Spain – in short, bring Catalonia closer to full autonomy . The proposal was the subject of a referendum the same year, and even though the turnout was a modest 48.9 percent, it was adopted.
Constitution Day on December 6, leaders of the Spanish central government and regions gather in Madrid for a celebration.
The Catalan authorities had consulted with Madrid prior to the proposed amendments to the statutes, and the National Assembly had amended certain points in the statutes before the referendum was held. In the end, however, the Conservative Party, Partido Popular, brought the case before the Spanish Constitutional Court, which in 2010, by six to four votes, concluded that the draft statutes were unconstitutional. Among the provisions the decision emphasized are other passages in the introduction to the 1978 Constitution which state (FYS’s translation): «The Constitution is based on the indissoluble union 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 between them all.”
In its reasoning, the Constitutional Court emphasized “indissoluble” and “indivisible”, while others would obviously argue that the text allows for completely different interpretations and not least, a far greater degree of autonomy.
At the 40th anniversary celebrations in the Spanish Parliament on December 6 2018, leaders from several of Spain’s 17 regions were absent: Catalonia, the Basque Country, Navarre and the Balearic Islands. Who showed up this year?
Find Your Spain!
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