Reform: mission impossible

Spain's major political forces have plenty of ideas on how to update the country's Constitution when in opposition. But only external pressure has produced changes

King Juan Carlos signs the Constitution in Congress on December 27, 1978.
King Juan Carlos signs the Constitution in Congress on December 27, 1978.marisa flórez

Only Spaniards who are over 55 voted for the current Constitution. That means that approximately 63 percent of citizens, according to official statistics, have never had a chance to approve a charter that will turn 35 years old this Friday, December 6.

Since 1978, the Spanish Constitution has only been amended twice, both times because of external pressure from the European Union. The first amendment was adopted in 1992 with unanimous support from all groups in parliament; it allowed European citizens to vote and run for office in municipal elections. The second change, in 2011, was much more controversial; it raised the principle of budget stability into a constitutional mandate with virtually no public debate.

So why have there been so few changes? The Socialists (PSOE) and the Popular Party (PP), have come up with various proposals for reform throughout the years. But these suggestions rarely took the shape of detailed texts, and almost always surfaced when the party in question was in the opposition, not in power. Now, the Center for Political and Constitutional Studies has published a book co-written by 15 experts on constitutional affairs and coordinated by Diego López Garrido, a Socialist deputy. Some of the conclusions in Reforma constitucional y estabilidad presupuestaria: el artículo 135 de la Constitución española (or, Constitutional reform and budget stability: Article 135 of the Spanish Constitution) assert that Spain is the only constitutional state that does not introduce amendments to its fundamental law, and herein lies the source of the instability of Spanish constitutions throughout the last two centuries. "The non-exercise of constitutional reform is a disease that inexorably leads to its destruction," writes Javier Pérez Royo, a professor of constitutional law at Seville University.

Zapatero suggested a new Senate and an end to male royal succession

The amendment proposal that made the most headway was put forward by former Socialist Prime Minister José Luis Rodríguez Zapatero, who suggested the inclusion of a reference to Europe, introducing the names of Spain's autonomous regions, eliminating the preference for male heirs to the throne and reforming the Senate. But ultimately these ideas ended up at the bottom of a drawer due to lack of consensus.

Reforming succession to the throne would have required dissolving parliament and holding a referendum; the other amendments necessitated a double majority. It was different with the 2011 amendment of Article 135, concerning budget stability, which enjoyed bipartisan support from the PSOE and the PP and was approved in a fast-track procedure spurred by EU demands and by the markets.

Catalans the most enthusiastic


On December 6, 1978 Spain held a referendum on the constitutional text just approved by both houses. The result was resounding support for the new magna carta, with 88.5 percent in favor and a voter turnout of 67 percent. But enthusiasm was not the same across the regions. While Andalusia and Catalonia registered support of over 90 percent for the new Constitution, in the Basque Country adherents only represented 75 percent. In Madrid, 86.8 percent voted in favor.

As a rule, referendums in Spain have always yielded significant victories for supporters of the "yes" vote, with the sole exception of membership in NATO, which only garnered 52.5-percent backing in 1982. None of the new statutes approved by regional governments in recent years ever achieved the kind of support that the Constitution did. The new Catalan charter, for instance, was put to the popular vote on June 18, 2006. Participation barely reached 48.9 percent, and the "yes" vote came in at 73.2 percent. The Andalusian Statute obtained 87.5 percent with a turnout of 36.3 percent.

At the present time, the need for reform is advocated by the Socialists, by the centrist party Union, Progress and Democracy (UPyD) and by the United Left (IU), although none of them have made specific proposals in Congress. The PP, currently in power, is contrary to change. Congress rules that any initiative for constitutional reform must emanate from "two parliamentary groups or a fifth of deputies (70)," but in practice only the PP and PSOE have enough of a majority to activate this procedure. "The fact that the main proposals for constitutional reform were simultaneously campaign promises underscores that political forces have a way of viewing the Constitution that is not beneficial to our fundamental bill of rights, in that it is seen as a tool to achieve other goals," notes Paloma Biglino, a professor of constitutional law at Valladolid University, in the new book. She highlights the fact that the two main parties talk about reforming the Constitution only when they are in the opposition.

For instance, the PP is now shutting the door on reform citing a lack of consensus and a prevailing climate of uncertainty; yet in 2006, five years before being elected prime minister, Mariano Rajoy suggested up to 14 amendments to Spain's magna carta, many of them dealing with the balance between central and regional power. One of these amendments proposed raising to two-thirds the necessary majority to modify the regional charters; another sought to define a core set of non-transferable powers; and a third aimed to clarify the state's powers over essential issues to guarantee equality for all Spaniards.

All of that has since been forgotten, as was the notion put forward on June 3, 2011 by soon-to-be Deputy Prime Minister Soraya Sáenz de Santamaría, to the effect that justices of the Constitutional Court should remain in their posts for life. Since then, she has never mentioned the matter again. For its part, the PSOE has gone from rejecting reforms under the Felipe González administration in the 1980s and 1990s to backing them when Zapatero was in the opposition - although once he made it to La Moncloa in 2004 he himself quashed most notions of change. And so we come to the latest proposal by the Socialists, in the opposition again since November 2011: party leader Alfredo Pérez Rubalcaba wants to amend around 20 articles of the Constitution.

"Thirty-five years ago we weren't part of the EU, there was no internet, our society did not have immigration, our economy was not globalized, there was no financial crisis, nor had we developed basic social services like education, healthcare or the pension system. The Spanish Constitution also needs to adapt because of the serious political crisis gripping our country, to reinforce and re-legitimize its institutions and its basic rules of democratic coexistence," reads the document approved by the Socialist Party at a meeting in Granada last July.

All main proposals for constitutional reform were also campaign promises"

The Socialists' core idea is to shift the state to a fully federal model, expanding on the current "state of the autonomous regions" which grants significant powers to regional governments, albeit in a vague and, some say, insufficient way. The reformed Constitution would clearly specify the powers that are devolved to the regions, and it would acknowledge the "singularities" of certain territories (chiefly Catalonia, the Basque Country and Galicia, which all have their own languages). The Socialists believe that this would be a way out of the tense situation created by Catalan nationalists' pro-independence drive, effectively increasing that region's powers while falling short of outright secession from Spain.

UPyD holds that Spain needs to "initiate an open debate aimed at defining our country's model for the next 30 years." Apart from electoral reform, it, too, supports a shift towards a more federal structure in order to define which powers fall to the central government and which to the regions and municipalities. UPyD also wants to guarantee an effective separation of powers to have a truly independent judiciary.

The leftist IU coalition does not have a clearly articulated proposal, but it champions reinforced rights to healthcare and housing, a federal republic as the ideal state model, and the elimination of Article 135 regarding budget stability.

But since both main parties tend to resist change once in government, the Constitution still fails to mention the EU even though fundamental decisions emanate from there; it still contains anachronistic or "dead articles" that lack any meaning today, such as the items explaining how to form autonomous regions, and it includes politically incorrect language regarding "the physically, sensorially or mentally handicapped" -terms that have long been replaced elsewhere by "people with disabilities."

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