Araceli Mangas / Fergal MacErlean / Tony Bryant
Madrid / Malaga
Wednesday, 6 December 2023, 11:23
On Wednesday 6 December 1978, the people of Spain voted in a referendum to ratify the new Spanish Constitution. The vote marked the culmination of the Spanish transition to democracy after the death of General Francisco Franco.
The new constitution was approved by the Spanish parliament (Cortes Generales) on 31 October 1978, and by nearly 90 per cent of Spanish voters in the referendum on 6 December. It was sanctioned by King Juan Carlos on 27 December and came into effect on 29 December, the day it was published in the Official State Gazette (BOE).
Since then 6 December has been a national holiday in Spain.
The constitution was drafted and approved by the constitutional assembly that was elected after the 1977 general election. It is organised in ten parts, which advocates as the highest values liberty, justice, equality and political pluralism.
A seven-member panel was selected to work on the draft of the constitution and they became known as the 'Fathers of the Constitution'. These seven people were chosen to represent the deeply divided political spectrum within the Spanish Parliament, while the leading role was given to the then ruling UCD party.
The assembly nullified the fundamental laws of the regime as well as existing laws that refuted the principles that the new constitution established.
The 45 years of the Spanish constitution have seen the greatest period of peace, equality and well-being in the country's history. It was this document that broke down the legal wall of the Franco dictatorship and opened the way for survivors from the two sides of the Civil War to come together.
But there remain problems with its reform, writes Araceli Mangas, professor of public international law and international relations at the Complutense University of Madrid. Mangas says that the 1978 constitution, while broadly well-crafted, has not been reformed as necessary (except in 1992 and 2011 due to EU requirements).
Mangas writes that it has allowed for a full democracy, with parties that have respected the right of others to govern. A full democracy is one that meets all the criteria that internationally accredited bodies score. When it only meets some of the criteria, it is called a hybrid, illiberal authoritarian or autocratic regime.
Until now, Mangas asserts, constitutional Spain has guaranteed respect for human rights and the regularity and fairness of elections. However, fundamental elements of a democracy are being eroded: there are no guarantees for the equality of citizens by recognising that the government's political partners have a licence to commit crimes and, moreover, to embezzle public funds. Judges have an express obligation to try all crimes in accordance with the constitution, but the government now exempts them from their constitutional mandate. The separation of powers has been blurred by the exponential abuse of decree-laws, or by fraudulent bills drafted by the government to circumvent constitutional checks and balances.
Full democracies establish safety nets or control valves so that each institution plays its role and counterweights work against any excess of the three branches of government. Judicial control is fundamental to avoid both interpretative errors and intentional acts by judges and courts. If there is evidence of prevarication in the judicial investigation or ruling, it must be denounced so that a court can establish whether or not the judicial offence has been committed.
What a democracy cannot allow, Mangas claims, is parliamentary harassment of judges who comply with the constitution. The law professor alleges that the PSOE-Junts agreement and the publication of the amnesty bill are, for the moment, the latest episode of harassment of the constitution.
The rifts in Spain between the right and the left have never been more apparent as the country enters a period of fracture precipitated by those seeking independence from the state. Alarmingly, this has bolstered the far-right, which up until now has not been a feature of Spanish political life as it has in many other European nations. Democracy in the EU faces challenges from rising extremism and polarisation.
Today, Wednesday 6 December, is a time to be proud of the positive aspects of the constitution and to celebrate its democratic values. Many people will get to enjoy five days off as there is a second public holiday, in addition to today, fall on Wednesday and Friday 8 December for the Feast of the Immaculate Conception.
When one includes the 'puente' (bridge) day between the public holidays, many people will enjoy a five-day long weekend. All shops will be open for four out of the possible five days. Wednesday 6 December is the only day that department stores will not open their doors.
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