The Spanish constitution for a long time appeared to be a good starting point for a country transitioning from a fascist dictatorship into a modern democracy. In hindsight the process that brought it about was full of the flaws which continue to bedevil Spanish politics forty years later. For Spanish and Catalan democrats of a younger generation what happened in the second half of the 1970s has become an obsession, as it contains the key to understanding so many of the country’s troubles today.
A Short History of the Spanish Constitution
The Spanish Constitution of 1978, as interpreted by the highly politicised Spanish constitutional court, is the basis upon which the Spanish state systematically denies discussion of self-determination to Catalonia. It is also systematically endorsed by the European Union and its member states as the “framework for dialogue” within which solutions are to be found. This constitution was the result of a self-managed process of “transition to democracy” by the Francoist regime following the dictator’s death. Guiding the process were the key goals of the regime: ensuring impunity for all human rights violations carried out over the previous 40 years, and an institutional setup which provided veto powers -which remain in place today- for the Francoist establishment, and its successors, through a purposely designed electoral system and the controlled opening up to broader political participation.
Political associations (first) and parties (after) were selectively and gradually legalised, giving the regime a head start for setting up its own parties. The Communist Party, which had been the leading force of democratic grassroots opposition throughout the dictatorship, was legalised only two months before the 1977 elections. It was only legalised, however, on condition that it explicitly recognised the monarchy, the unity of Spain, and its flag (as opposed to the republican flag of the 1930s). This broke the party, with many activists feeling betrayed, in addition to ensuring that votes for the democratic opposition would be split. The Socialist Party, which had been close to irrelevant as a force of opposition during the dictatorship, had been legalised and promoted by the regime much earlier, and received massive injections of funding and training through its connections to the German Social-Democratic Party. Throughout the transition, the Francoist regime controlled the military, the judiciary, the media and the political system, and was hence able to impose its key conditions on the process: The legitimacy of Francoism, the unity of Spain, the monarchy and the immunity of all those who had been committed to the dictatorship.
The constitution was negotiated on the basis of the system put in place by the 1976 Political System Reform Law -prior to any elections-, and representation resulting from the 1977 elections (in addition to 20% of senators designated by the King). The congress and senate that were elected assembled a committee of seven men to draft the constitutional text: four of them from the Francoist establishment, one from the Socialist Party, one from the Communist Party and one from the Catalan conservative nationalists. Following an initial private negotiation, it was debated in the congress and the senate over the course of a couple of weeks in July 1978, with scant attention from an extremely limited media. It was voted as a full package in December in a referendum, of the take it or leave it kind, in the midst of political unrest and uncertainty. Taking it meant accepting huge advances in relation to the totalitarian dictatorship from which it emerged. Refusing it more than possibly meant returning to fully fledged dictatorship. The Spanish people voted massively in favour, as they had done before to endorse the 1976 Law on political reform, and other referendums under Francoism. There really wasn’t much of a choice.
Throughout the process King Juan Carlos was a key figure. Having been mentored by Franco from an early age, the dictator chose him as a successor. In 1969 Juan Carlos swore before the Francoist parliament to uphold the Fundamental Laws of the Movement. An elderly Franco in that year’s Christmas address told the nation that for after his death, things were “all tied up, and well tied up”. At Franco’s death the King appointed prime ministers: first Arias Navarro, who had earned the nickname “Butcher of Malaga” during the civil war, then Adolfo Suárez, who led constitutional endeavours. King Juan Carlos negotiated skilfully with various strands of the old guard and sectors of the democratic opposition to the regime he wished to promote -most notably the Socialist Party. On the whole he was the steward of the whole process. The institutional setup that resulted was remarkably similar to the one enshrined in the 1977 political system reform law (adopted before any elections were held). The electoral system basically remained the same, although the King could no longer appoint senators directly. The unity of Spain and veto powers for the conservative Castilian elites were locked in, as was political control over the judiciary.
The process was faulty from a democratic standpoint for, among others, the following reasons:
1. The system was tightly controlled by the old regime, which was able to determine who could partake in debate and who could not, and in what conditions.
2. There was widespread political violence, with over 500 political deaths attributed to the state and right-wing and left-wing paramilitary organisations between 1975 and 1982. The threat of a return to military rule was permanent and explicit.
3. There was no proper public debate regarding the contents of the constitution in an atmosphere of highly constrained media. Congressional debates were not broadcast and media reporting on them was extremely limited.
4. There was a severe economic crisis at the time, which resulted in constitutional development taking place in parallel to economic stabilisation, thus exacerbating the climate of uncertainty and unrest.
5. The 1977 elections were not called as Constituent elections and, therefore, parties did not campaign on the basis of what they would propose for a future constitution, thus eliminating any possibility that the public could express its preferences regarding the constitution’s contents.
When Spaniards were asked to vote it in a referendum it came as a full package: Take it or…
The constitution has been amended twice. First in 1992 to add the word “passive” in relation to foreigners voting in local elections. This was in order to bring the text into line with the Maastricht Treaty. The second occasion was in 2011, when article 135 established budgetary stability as the overarching priority of the country’s economic policy. This amendment was carried out in the midst of the Eurocrisis in order to satisfy German demands. It was adopted pretty much overnight during the month of August on the basis of a deal between the Popular party and the Socialist Party. No referendum.
Both of these quick fixes, which nobody in the public sphere was demanding, followed the express channel, for which parliamentary majorities of 3/5 in both chambers are required. Given Spain’s electoral system, this has traditionally meant the PP and the PSOE agreeing. Other chapters of the constitution, such as those regarding the unity of Spain, require a lengthier process: approval by 3/5 in both chambers, followed by general elections, followed by 3/5 approval in both houses again, followed by a referendum.
There hasn’t been so far any amendment to the constitution arising from public debate on any issue. Not even an attempt.
- July 1969 Franco’s Cortes (Parliament) anoint Juan Carlos to succeed Franco as head of the Spanish state. The young Juan Carlos swears allegiance to the principles of Franco’s regime.
- September 1974. Franco being ill, Juan Carlos takes on head of state functions.
- November 1975 death of Francisco Franco.
- July 1976 Juan Carlos appoints Suárez as prime minister.
- November 1976 Law of Political Reform is voted by Franco’s parliament to allow for a transition to democratic rule.
- July 1977 1st democratic elections; the party led by Suárez, containing much of the old guard, wins.
- August 1977 A parliamentary commission begins discussing and drafting the constitution secretly.
- October 1977 Amnesty Law for political prisoners during the dictatorship adopted. Alianza Popular (later rebranded as Partido Popular) opposes the law. In recent times it has been used mainly to prevent the investigation of crimes carried out by the state during Francoism.
- May 1978, A first draft of the constitution is sent to a constitutional affairs commission
- July 1978 The constitution is debated in parliament, very little media coverage.
- October 1978 Constitution is adopted by both Congress and Senate.
- December 6, 1978. Referendum on constitution receives 87% support, 58% of the census.