constitution of 1978

   Following the historic general election of 1977, the newly elected parliament proceeded to draw up a new constitution for democratic Spain. The first draft was prepared by a group of seven parliamentarians, representing the major political parties, appointed by the committee of constitutional affairs; this consisted of thirty-six members of the Congreso de Diputados (the lower house) drawn from these parties in proportion to their strength in the Congress. The draft was submitted for scrutiny and amendment, first to the constitutional committee of the Congress and then to its counterpart in the Senate. Subsequently, it was scrutinized by a joint committee of both Houses before being approved in a joint session on 31 October 1978. Finally, on 6 December, the agreed text was submitted to a direct vote of the Spanish people in a national referendum. On 28 December, King Juan Carlos signed the new constitution, which, significantly, had won the support of 98 percent of the country's parliamentarians and 88 percent of the 68 percent of the electorate which voted in the referendum. The constitution is divided into eleven major sections, including a preliminary section laying down the principles of the new state. Article 1 proclaims that Spain is a "social and democratic state based on the rule of law…national sovereignty resides in the people from whom all powers derive". Article 2, while referring to the "indis-soluble unity of the Spanish nation", recognizes the "right of the nationalities and regions of Spain to autonomy". Article 3 recognizes regional languages as co-official in the regions alongside Spanish, which remains the official language of the state. An important principle is "political pluralism"; in this context both political parties and trade unions are expressly recognized. Article 9.2 puts an obligation on the authorities to create the conditions in which the freedom and equality of the individual can be genuine and effective, and to remove obstacles to the full participation of citizens in the political, economic, social and cultural life of the country. Two major provisions refer to Spain's traditional poderes fácticos, the armed forces and the Roman Catholic Church. Article 8 states that the role of the armed forces is "to safeguard the sovereignty and independence of Spain, defend its territorial integrity and the constitutional order", but it also makes it clear that the ultimate responsibility for national defence lies not with the armed forces but with the popularly elected government of the day. Article 16, while affirming that there will be complete religious freedom, breaks with the Franco tradition in proclaiming that there will be no state religion. However, clause 3 of this article goes on to say that "the authorities shall take into account the religious beliefs of Spanish society and shall maintain consequent links with the Catholic Church and other faiths".

   Section II examines the role of the monarchy, laying particular stress on its role vis-à-vis the constitution. Section III outlines the composition, functions and powers of both houses of parliament. Section IV deals with the organization of the government and public administration, while Sections V and VI respectively refer to the relationship between the government, the legislature and the judicial authorities. Section VII lays down the basic principles by which the economy shall be run. Section VIII concerns the fundamental question of the relationship between central government and the regions and peoples of Spain— the issue which prompted the most heated debate. Section IX outlines the composition and powers of the Constitutional Tribunal and Section X the processes by which the constitution may be reformed. It is worthy of note that the 1978 constitution devotes much more attention than previous constitutions to such key aspects of democracy as rights, the legislature, popular sovereignty, and the rights of the regions. The longest section of the constitution deals with rights and the obligation of the state to protect them. Article 10 affirms that such rights shall conform to those listed in the Universal Declaration of Human Rights. These rights fall into three categories: basic human or civil rights; political rights; and socio-economic rights. Among the basic civil rights listed are: the right to life and to personal physical integrity (article 15); the right to freedom, including habeas corpus (article 17); the right to equal treatment before the law for all citizens, irrespective of differences of birth, race, sex, religion or belief (article 14); and the right of free access to the courts, including the right to be defended in court and to have access to a solicitor while in detention (article 24). Among the political rights guaranteed—long denied or flouted under Franco—are: the right to freedom of expression (article 20); the right of assembly and the right to demonstrate in public (article 21); the right of association (article 22); and the right to strike, also forbidden during the dictatorship (article 28). The socio-economic rights include: the right to work, including the right of women to equal treatment to men in employment terms (article 35); the right to collective bargaining (article 37); and the right to education (see also education and research), which incorporates the freedom to choose the type of education and school one wishes as well as the right of individuals and groups to found centres of learning (article 27). In general the 1978 constitution can be seen as a balanced document which respects the views of both traditionalists and progressives across a range of political, social and economic issues which prior to Franco and during his regime divided Spaniards in an often irreconcilable way. While legally it may be an imperfect document, politically it has enormous significance in that it reflects the political consensus of the time and the determination of a generation of political leaders of all persuasions to bring about national reconciliation.

   See also: church and state; Franco; language and national identity; legal system; LODE; regionalism

   Further reading

   - Newton, M.T. with Donaghy, P.J. (1997) Institutions of Modern Spain, Cambridge: University Press (chapter 2 is devoted exclusively to the constitution and there is a detailed bibliographical section).

   MICHAEL T. NEWTON