Spain's Constitution turns 40: Should we be celebrating?

WHICHEVER way you look at it, the Spanish Constitution is something to celebrate.

Now exactly four decades old, the Magna Carta signed on December 6, 1978 put an end to a dictatorship that had lasted nearly as long, although it would take over three years after the death of General Franco in November 1975 before it finally saw the light of day.

But the contents of this lengthy text ensures such a régime can never happen again: the sovereignty of the State, henceforth a Parliamentary Monarchy, lies firmly in the hands of the people, and although the King or Queen (fast forward half a century or so from now and the newly-teenage Crown Princess Leonor will be Spain's first-ever female monarch since Isabella of Castilla) holds the position of head of State, he or she can never 'interfere' with national politics.

 

The difference a day makes: From dictatorship to democracy in one signing session

It's somewhat ironic that King Juan Carlos I – who abdicated in favour of his son Felipe VI in June 2014 – should have been chosen by Franco to take over running the country, and yet it was the current Rex Emeritus who oversaw the Transition (always with a capital 'T') from dictatorship to democracy, creating the free Spain we enjoy today, with the help of the first president of the newly-liberal nation, the late Adolfo Suárez.

Anti-monarchy sentiments such as those seen in the UK in the early 1990s – which are now in the minority – have become a recent phenomenon in Spain, and mainly among younger adults who had not yet been born at the time of the Transition and would not have had any first-hand experience of life under the iron grip of a fascist ruler who censored everything from the arts to the regional languages and where you could be jailed for any sign of dissenting against his policies or the doctrines of the Catholic Church.

And the current Constitution – the second-longest standing in history after the Magna Carta of 1876 (which was valid for 47 years) – was created as a result of a referendum, something never seen before in Spain's living history.

Just over two-thirds of those eligible to vote opted to do so, and 88.5% were in favour of the Constitution; in Catalunya, whose current leaders very much oppose it because the text bans any action that threatens the 'unity of Spain', such as an attempt at secession, the number of voters was very slightly higher and those in favour totalled 91.1%.

Since democracy was restored to Spain in 1977, a total of 13 general elections have been held, with an average of 72.6% of Spanish nationals casting their votes – although, like practically every other country in the world and, controversially today where more than one in 10 people in nearly every western nation are foreign-born, migrants are not permitted to cast their ballot.

So, if you happen to know one of the 27.4% who opt not to vote at any general election, convince them to let you have their ballot: tell them which party you want to see in power and persuade them to post the relevant paper on your behalf.

 

Why it's still a good idea

Every one of Spain's four main political parties in power – from left to right, Podemos, the PSOE (socialists), Ciudadanos and the PP – agree the Constitution is worth it and that its 40^th birthday should be celebrated, although heading west of the centre, the opinion that it needs a full structural reform becomes stronger.

Today's Magna Carta protects the fundamental rights of not only Spaniards, but all other nationalities living in Spain: that of 'dignified' and 'fair' housing, and healthcare for all residents (despite ongoing confusion and misinformation expats have long faced, Article 43 of the Constitution enshrines all foreign residents' right to free medical treatment via the State system and has done since its signing 40 years ago yesterday, Thursday), and although the PP attempted to use the Magna Carta to challenge the legality of same-sex marriage after this became official in early 2005, the Constitutional Court found nothing in the text to stipulate that nuptials were only valid if they were between two lovers of opposite sexes.

And full democracy is a right that, surprisingly, only 19 of the world's 167 sovereign States analysed enjoy.

According to the 2017 Democracy Index, the UK, Norway, Sweden, Denmark, Finland, Germany, The Netherlands, and Spain – all of the European Union's Parliamentary Monarchies, except Belgium – are considered to be 100% democratic States, whilst another 57, including France, Belgium, Italy and the USA, are considered 'imperfect' or 'incomplete' democracies and the remaining 91 are qualified as 'hybrid régimes', such as Albania, Guatemala and Morocco, or 'authoritarian régimes', such as Russia, China and Venezuela.

The 2018 Freedom House report places Spain near the top in terms of democracy, with a score of 94 out of 100, beaten only by Finland, Norway and Sweden – the sole three countries on earth that score 100% - Canada and The Netherlands, scoring 99%, and Australia, Luxembourg, New Zealand and Uruguay at 98%.

Spain is level-pegging with the UK, Germany and Austria and, according to Freedom House, beats France (90%), Italy (89%) and the USA (86%).

 

Or is it out of date?

But the argument that the Constitution may no longer be as relevant now as it was then is a valid one, especially taking into account demographics – many of those aged 45 or more on the date it was signed are no longer with us, the youngest pensioners today were aged just 25 and small children on that date are now becoming too old to have any more kids of their own – and the fact that Constitutions, by definition, are born during times of deep political crisis and their texts designed in response to political needs.

US president Thomas Jefferson believed the useful life of a Constitution was 18 years and eight months, meaning any Magna Carta in place at the dawn of the new Millennium would no longer be in force today.

Spain and its society in December 2018 are unrecognisable from those of December 1978, when it was little more than a third-world nation and not yet a member of the European Union, where divorce would not be legal for several more years and military service was compulsory on pain of prison or losing one's nationality.

Back then, national terrorism was a very real threat for practically everyone – although ETA's last violent attack was in 2009, when it blew up a police car in Palmanova, Mallorca, in the 1970s it was very active and blasts and shootings would take dozens or even hundreds of lives at once.

Spain was also in the grip of a financial crisis far worse than that which has been dragging on (albeit vastly improved now) since 2008, only a quarter of university students were female, abortion was a crime, and its military was strongly aligned with the values of the dictatorship; democracy had just been born, but remained tenuous and fragile.

The Constitution paved the way for Spain's 17 regions – 19 including the self-governing enclaves of Ceuta and Melilla on the northern Moroccan coast – to enjoy autonomous leadership, something the more right-wing politicians in the country oppose in various degrees, and for those with their own languages to make these co-official: catalán and its variants valenciano, mallorquín, menorquín and ibicuenco, and galego and euskera in Galicia and the Basque Country.

And 40 years on, with Spain now a mature, established democracy, with a life expectancy among the top five on earth and set to become the highest on the planet by the year 2030, and generally a much older population – back in 1978, the number of under-15s more than doubled that of the over-65s, whom pension experts say were the equivalent in terms of health, youth and activity to the over-89s today – it could be that parts of the Magna Carta are no longer relevant to the nation as it looks today, or at least, that these parts need to be extended and redefined.

And the Catalunya independence bid has also shown that the Constitution may need some serious tweaking: whatever the arguments for or against the north-eastern region's breaking away and becoming a separate country, and likewise the advisability or otherwise of leaving such a ground-breaking, irreversible decision with implications for generations not yet born in the hands of the ordinary people, many would argue that Catalunya's general public should at least have been allowed to vote in a non-binding opinion poll to test the water so that its leaders, and those of Spain, knew what they were up against, and why.

Many, including Podemos' leader Pablo Iglesias, believe that if an advisory referendum had been allowed rather than any discussion on the issue automatically outlawed by citing the Constitution, at least a slim majority would have voted to remain in Spain.

 

Changing the governing system: Autonomies, electoral results and representation

Among the changes many Spaniards would like to see for the next 40 years of the Constitution are a greater streamlining of autonomous governing powers: just over two in 10 want to see the 17 regional governments having greater jurisdiction and another two in 10 would prefer them to have less, but most are critical of the fact that services enjoyed by citizens and residents can be a postcode lottery, and that not all regions receive a fair slice of the State budget; some also complain about the fact that in regions with co-official languages, these are often given priority over the national tongue, Castilian Spanish, effectively excluding anyone from outside their borders and making it harder for foreigners and those born or educated elsewhere in the country from working in the public sector – or even understanding road signs or participating in open council meetings.

Overall, two-thirds of Spaniards still support the autonomous governing system, but most believe there to be 'room for improvement', and 91% believe the Constitution is key to a fair and democratic society – more than the 87% who believed this to be the case in December 1978.

Most believe the Constitution, and the electoral system – which is currently skewed unfairly in favour of larger, established parties, who need fewer votes per seat than smaller outfits, in line with the so-called D'Hont distribution – as well as the federal governing system need a rethink, and almost a third consider that different political parties are not necessary for a fully-functioning democracy: they believe the public should vote for policies, not politicians.

Other changes the public wants to see in Spain's default legal text is the mention of the European Union, a 'club' which 73% of Spaniards are in favour of remaining in.

Centre-right Ciudadanos wants to abolish the Senate, which currently only serves as a secondary Parliament, and replace it with a Council of Presidents made up of each of the 19 autonomous leaders representing their territories; a microcosm of the Council of Europe, in effect.

Ending the 'diplomatic immunity' of the Royals and high-ranking politicians, which means any case against them has to go straight to the Supreme Court, leap-frogging all lower audiences, is another change many want to see, and current president Pedro Sánchez appears in favour of doing so; although those who 'enjoy' this status have pointed out its disadvantages, namely that the Supreme being treated as their court of first instance effectively bars them from the opportunity to appeal.

Also along legal lines, many Spaniards consider the appointment of judges to be too politically-biased, affecting magistrates' independence, and want to see the courts and the government completely divorced from one another.

 

Social changes to reflect 21st-century Spain

Whilst probably a mere formality, many politicians and members of the public want to see the Constitution change all references to 'the Spanish people' to simply 'the people', particularly where it states that 'the Spanish people' are all equal under the law; as a European Union member State, Spain is not allowed to discriminate between its own citizens and its residents from the rest of the EU-27, but no law prevents non-EU foreigners from being treated differently to, or less favourably than, natives.

And although the death penalty has long been outlawed, the Constitution still provides an exception for 'in times of war', which should be removed, most Spaniards argue.

Even though the references to marriage do not specifically exclude unions other than 'between a man and a woman', Spaniards want to see the right to same-sex nuptials enshrined in black and white, and the fundamental right to education and healthcare set in stone.

More controversial is Article 135, which requires all regional governments to be 'financially stable' – if this were to be enforced, it would prevent their going into further debt where this was necessary to solve crises in education, welfare and healthcare; to this end, most Spaniards want to see 'financial stability' replaced with 'social stability', which would imply a duty to remain as solvent as possible, but would not place this ahead of the duty to protect human rights and public wellbeing.

King Felipe VI, in his public speech during the commemorative act for the Constitution's 40^th anniversary yesterday – accompanied by his wife, Queen Letizia and daughters, Princess Leonor and the Infanta Sofía – stated that the Magna Carta his father helped to draw up is 'one of the greatest political achievements' in Spain's history and is there 'to serve everyone'.

And he's probably right, even though this same text prevents him from voicing an opinion on whether it is overdue for a redraft.

In a nutshell, the Constitution may not be perfect, but what it has enabled Spain to achieve, and become, in its 40 years of life means it definitely deserves to be lauded on every December 6 bank holiday, and especially on its milestone birthday this year.