Nine out of ten Spaniards set the bar very high. Nine out of ten voters in favor of a project is a consensus that poses a real challenge: who would now dare to reform the Constitution? Today marks 45 years since that rainy December 6, 1978 in which 25 million Spaniards were called to the polls to ratify the Magna Carta, and 87.78% of those who voted did so in favor.
More than four decades have passed and the Spain of today is very different from the one that illuminated that text, but the Constitution has only been modified on two occasions and both at the request of the European Union: in 1992, to allow community citizens to present in municipal elections wherever they reside, and in 2011, to establish the principle of budgetary stability, the result of a controversial PSOE-PP pact, since it broke the 1978 consensus.
Since then the two major parties have not been able to reach an agreement again, despite the fact that both have at some point shown a willingness to modify the Magna Carta. The political context, very volatile now, is also not suitable for the broad agreement that a constitutional reform requires, and would not even allow for the development of a serene debate. The five experts in constitutional law from universities in Catalonia, Madrid, Andalusia and Galicia consulted agree on this, despite the fact that there are changes that should be addressed, starting with the territorial issue.
“If there is an inopportune moment for a constitutional reform, it is now because the country is divided in two,” warns Roberto Blanco, professor of Constitutional Law at the University of Santiago de Compostela (USC). And he makes three reflections regarding a possible reform: that constitutions are not changed to update them, but when there is a problem; that they not only adapt to reality through change, but also through interpretation, and that great agreement is required.
With these premises, he points out that there are possible modifications, such as that of article 49 – proposed by President Pedro Sánchez – to change the term diminished for another politically correct one, but he asks “if it is worth addressing a reform, since we know where it begins. but not where it ends, for a matter that is not a vital emergency.” The same reflection serves, he says, for more far-reaching changes, such as article 57, which discriminates against women in succession to the Crown.
They are minor issues, he assures, compared to the “only real problem,” which is the territorial one. “In the functioning of the autonomous State there are problems of cooperation, duplication, financing..., all of this could be improved, but the basic problem is nationalism. The decentralized State works, except in Catalonia and the Basque Country, but the integration of nationalisms is not resolved by a constitutional reform. What they want is to leave. There is no possible agreement,” he warns.
Professor of Constitutional Law José Manuel Vera, from the Rey Juan Carlos University (URJC), in Madrid, also sees it as inappropriate to push for changes now. “The Constitution can, must, be reformed, but it requires a consensus and political tranquility that does not exist,” he assures. “Reforms in very complex situations, none, and whatever is done to amalgamate national sentiment. And for the benefit of society in general,” he adds.
In his opinion, this reform should be led by the parties, “especially PP and PSOE, those that have structured democracy in Spain.” And not everything should be subject to change. “Some parts I would never touch, because they would cause more problems in coexistence than solutions.” He gives the title of the Crown as an example. “It is delicate because they opted for an aggravated reform procedure regarding the head of state, instead of putting an intangibility clause as in other constitutions,” he points out.
“We owe a lot to the Constitution,” says María Emilia Casas, who was president of the Constitutional Court (TC) from 2004 to 2011. But time does not pass in vain and we must consider a reform, or at least the debate on the reform, which is always positive.” However, she sees it as “totally impossible” to make it a reality, due to political polarization.
Regarding the modifications, Casas, professor of Labor Law at the Complutense University of Madrid (UCM), refers as a starting point to the recommendations of the Council of State in 2006, relating to the reform of the Senate, to eliminate the preference of the male in the succession to the Crown, or to collect the right of the EU. And she adds other changes, to update the analog reality of 1978 to the digital world of today, or to advance equality. “Women were not present at the constituent moment and that must be reformulated,” she says.
More resounding is the professor of Constitutional Law at the University of Seville, Joaquín Urías. “We are already late to reform the Constitution. And not only because it has become old, but because each new generation must have a debate about it to see it as its own,” he warns.
Urías, who was a lawyer for the TC between 2004 and 2010, regrets that political tension prevents a reform, “which is nonsense because it means killing the Constitution.” And it is clear: “We are at the limit, either it is reformed in the coming years or we have to build a new one.”
It proposes changes in three lines, on key issues that have social consensus: expanding the catalog of specially protected rights, including housing, pensions and public health; depoliticize and improve the independence of control bodies such as the TC or the Supreme Court, and, with respect to the autonomous system, establish a financing system and clearly define powers, which would avoid conflict.
Xavier Arbós, professor of Constitutional Law at the University of Barcelona (UB), also emphasizes the need for consensus. “Any reform of the Constitution would have to pass a referendum with 70% support or more, or it would show dissension between public opinion and its representatives,” he warns. And he is committed to limiting the changes, so as not to “open the door for conflicts to make it impossible to move forward.” For this reason, he would focus the reform on three lines: the succession to the Crown, the depoliticization of constitutional institutions such as the General Council of the Judiciary, the Supreme Council, the Constitutional Council or the Court of Accounts, and the autonomous bloc.
In this last section, Arbós includes the reform of the Senate, so that it is a Chamber of exclusively autonomous and specialized composition, which "would not be free of partisan influences, but would have a different sensitivity regarding jurisdictional issues." And also define what scope the basic legislation should have so that the autonomous communities have room to develop their legislation.
