|Created||31 October 1978|
|Ratified||6 December 1978|
|Date effective||29 December 1978|
|Last amended||27 September 2011|
|Location||Congress of Deputies|
The Spanish Constitution (Spanish, Asturleonese, and Galician: Constitución Española; Basque: Espainiako Konstituzioa; Catalan: Constitució Espanyola; Occitan: Constitucion espanhòla) is the democratic law that is supreme in the Kingdom of Spain. It was enacted after its approval in a constitutional referendum, and it is the culmination of the Spanish transition to democracy. The Constitution of 1978 is one of about a dozen of other historical Spanish constitutions and constitution-like documents; however, it is one of two fully democratic constitutions (the other being the Spanish Constitution of 1931). It was sanctioned by King Juan Carlos I on 27 December, and published in the Boletín Oficial del Estado (the government gazette of Spain) on 29 December, the date in which it became effective. The promulgation of the constitution marked the culmination of the Spanish transition to democracy after the death of general Francisco Franco, on 20 November 1975, who ruled over Spain as a military dictator for nearly 40 years. This led to the country undergoing a series of political, social and historical changes that transformed the Francoist regime into a democratic state.
The Spanish transition to democracy was a complex process that gradually transformed the legal framework of the Francoist regime into a democratic state. The Spanish state did not abolish the Francoist regime, but rather slowly transformed the institutions and approved and/or derogated laws so as to establish a democratic nation and approve the Constitution, all under the guidance of King Juan Carlos I of Spain. The Constitution was redacted, debated and approved by the constituent assembly (Spanish: Cortes Constituyentes) that emerged from the 1977 general election. The Constitution then repealed all the Fundamental Laws of the Realm (the pseudo-constitution of the Francoist regime), as well as other major historical laws and every pre-existing law that contradicted what the Constitution establishes.
Article 1 of the Constitution defines the Spanish state. Article 1.1 states that "Spain is established as a social and democratic State, subject to the rule of law, which advocates as the highest values of its legal order the following: liberty, justice, equality and political pluralism. Article 1.2 refers to national sovereignty, which is vested in the Spanish people, "from whom the powers of the State emanate". Article 1.3 establishes parliamentary monarchy as the "political form of the Spanish state".
The Constitution is organized in ten parts (Spanish: Títulos) and an additional introduction (Spanish: Título Preliminar), as well as a preamble, several additional and interim provisions and a series of repeals, and it ends with a final provision. Part I refers to fundamental rights and duties, which receive special treatment and protection under Spanish law. Part II refers to the regulation of the Crown and lays out the King's role in the Spanish state. Part III elaborates on Spain's legislature, the Cortes Generales. Part IV refers to the Government of Spain, the executive power, and the Public Administration, which is managed by the executive. Part V refers to the relations between the Government and the Cortes Generales; as a parliamentary monarchy, the Prime Minister (Spanish: Presidente del Gobierno) is invested by the legislature and the Government is responsible before the legislature. Part VI refers to the organization of the judicial power, establishing that justice emanates from the people and is administered on behalf of the king by judges and magistrates who are independent, irrevocable, liable and subject to the rule of law only. Part VII refers to the principles that shall guide the economy and the finances of the Spanish state, subjecting all the wealth in the country to the general interest and recognizing public initiative in the economy, while also protecting private property in the framework of a market economy. It also establishes the Court of Accounts and the principles that shall guide the approval of the state budget. Part VIII refers to the "territorial organization of the State" and establishes a unitary state that is nevertheless heavily decentralized through delegation and transfer of powers. The result is a de facto federal model, with some differences from federal states. This is referred to as an autonomous state (Spanish: Estado Autonómico) or state of the autonomies (Spanish: Estado de las Autonomías). Part IX refers to the Constitutional Court, which oversees the constitutionality of all laws and protects the fundamental rights enshrined in Part I. Finally, Part X refers to constitutional amendments, of which there have been only two since 1978 (in 1995 and 2011).
The constitutional history of Spain dates back to the Constitution of 1812. After the death of dictator Francisco Franco in 1975, a general election in 1977 convened the Constituent Cortes (the Spanish Parliament, in its capacity as a constitutional assembly) for the purpose of drafting and approving the constitution.
A seven-member panel was selected among the elected members of the Cortes to work on a draft of the Constitution to be submitted to the body. These came to be known, as the media put it, as the padres de la Constitución or "fathers of the Constitution". These seven people were chosen to represent the wide (and often, deeply divided) political spectrum within the Spanish Parliament, while the leading role was given to then ruling party and now defunct Union of the Democratic Centre (UCD).
The writer (and Senator by Royal appointment) Camilo José Cela later polished the draft Constitution's wording. However, since much of the consensus depended on keeping the wording ambiguous, few of Cela's proposed re-wordings were approved. One of those accepted was the substitution of the archaic gualda ("weld-colored") for the plain amarillo (yellow) in the description of the flag of Spain.
The constitution was approved by the Cortes Generales on 31 October 1978, and by the Spanish people in a referendum on 6 December 1978. 91.81% of voters supported the new constitution. Finally, it was sanctioned by King Juan Carlos on 27 December in a ceremony in the presence of parliamentarians. It came into effect on 29 December, the day it was published in the Official Gazette. Constitution Day (Spanish: Día de la Constitución) on 6 December has since been a national holiday in Spain.
The Constitution recognizes the existence of nationalities and regions (Preliminary Title).
Traditionally, writing the preamble to the constitution was considered an honour, and a task requiring great literary ability. The person chosen for this purpose was Enrique Tierno Galván. The full text of the preamble may be translated as follows:
The Spanish Nation, wishing to establish justice, liberty and security, and to promote the welfare of all who make part of it, in use of her sovereignty, proclaims its will to:
- Guarantee democratic life within the Constitution and the laws according to a just economic and social order.
- Consolidate a State ensuring the rule of law as an expression of the will of the people.
- Protect all Spaniards and all the peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions.
- Promote the progress of culture and the economy to ensure a dignified quality of life for all
Establish an advanced democratic society, and
- Collaborate in the strengthening of peaceful and efficient cooperation among all the peoples of the Earth.
Consequently, the Cortes approve and the Spanish people ratify the following Constitution.
As a result, Spain is now composed entirely of 17 Autonomous Communities and two autonomous cities with varying degrees of autonomy, to the extent that, even though the Constitution does not formally state that Spain is a federation (nor a unitary state), actual power shows, depending on the issue considered, widely varying grades of decentralization, ranging from the quasi-confederal status of tax management in Navarre and the Basque Country to the total centralization in airport management.
Part I of the Spanish Constitution encompasses Sections 10 to 55, establishing fundamental rights and duties. The scope of the rights recognised by the text is the largest in Spanish constitutional history. Scholars deem the enumeration open insofar as new rights can be included under the principle of human dignity as a foundation of the political order and social peace (Section 10). This can achieved by means of constitutional reform, jurisprudential developments or the ratification of new international treaties.
The effect of fundamental rights is twofold. They are subjective rights to be exercised both individually and collectively. In addition to this, they are a binding principle for all public authorities, which allows for peaceful coexistence and legitimates the political and social order.
Chapter One deals with the entitlement of constitutional rights. Section 11 provides for the regulation by statute of Spanish nationality whilst providing for its inalienability for Spaniards. Section 12 establishes the age of majority in Spain at 18. Section 13 limits the entitlement of public freedoms to aliens to the provisions of statutes and international treaties.
Legal persons are entitled to a reduced array of rights, among which the right of association, the right to honour, the right to due process of law, freedom of speech and the inviolability of the home are included.
Chapter Two begins with Section 14, an equal rights clause.
Section One (Sections 15 to 29) includes an enumeration of fundamental rights and public freedoms. Individual rights include the right to life (Section 15), freedom of conscience (Section 16), right to freedom and security (Section 17), honour, privacy and inviolability of the home (Section 18), freedom of movement and residence (Section 19), and freedom of speech (Section 20). The list of collective rights include the right of assembly (Section 21), right of association (Section 22), right of suffrage (Section 23), right to education (Section 27) and the right to strike (Section 28). The due process of law is covered by Sections 24 to 26.
Section Two of Chapter Two (Sections 30 to 38) includes a list of civic rights and duties. Section 30 includes military duties with guarantees and alternatives for conscientious objectors (this section has been inactive since 2002). Section 31 establishes a progressive and non-confiscatory tax system. The principles of family law are laid out in Section 32. Chapter Two also deals with the right to property (Section 33), to create foundations (Section 34), to work (Section 35), to create professional associations (Section 36) and to collective bargaining (Section 37). This Section also guarantees economic freedom and calls for a market economy which can be subject to government planning (Section 38).
Chapter Three includes Sections 39 to 52. They lay out the foundations of the Spanish welfare state in accordance with the constitutional mandate for a social state (Section 1) and for effective freedom and equality and societal integration for all citizens and collectives (Section 9, Part 2). It includes provisions for a public pension system, a social security system, public healthcare and cultural rights.
Chapter Four includes a series of guarantees for fundamental rights. Section 53 limits the regulation of all rights in Chapter Two and Chapter Three to statutory law, which excludes administrative regulation (reglamentos). These statutes must respect the essential content of said rights. The fundamental rights and public freedoms included in Section One of Chapter Two can be invoked directly, and they ought to be regulated by means of Organic Law (which ensures greater political consensus). The creation of this statute cannot be delegated to the executive power.
Section 54 calls for the creation of an Ombudsman (Defensor del Pueblo), accountable to the legislative power, the Cortes Generales. It acts as a supervisor of administrative activity. In addition to this, it has standing before the Constitutional Court to lodge unconstitutionality appeals and individual appeals for protection (recurso de amparo).
Sections 14 to 29 and Section 30, Part 2, enjoy the right to a preferential and summary procedure in the ordinary courts. Once this procedure is exhausted, citizens may lodge an individual appeal for protection (recurso de amparo), a last instance unique to Spanish constitutional law and created in 1978 that, once exhausted, allows for an appeal before the European Court of Human Rights. This scope of additional protection reinforces the guarantees of the due process of law, including the process of habeas corpus.
In addition to this, the Prime Minister, the Ombudsman, 50 members of the Congress of Deputies, 50 Senators, and regional governments and legislative assemblies may lodge unconstitutionality appeals before the Constitutional Court.
The Constitution dedicates its Part II to the regulation of the monarchy, which is referred to as The Crown (Spanish: La Corona). Article 56 of the Constitution establishes that the monarch is the head of state and symbolizes the unity of the Spanish state. It refers to the monarch's role as a "moderator" whose main role is to oversee and ensure the regular functioning of the institutions. The monarch is also the highest-ranked representative of the Spanish state in international relations and only exercises the functions that are explicitly attributed to him by the Constitution and the laws. The King's official title is "King of Spain" (Spanish: Rey de España), but he is allowed to use any other titles that are associated to the Spanish Crown.
The King of Spain enjoys immunity and is not subject to legal responsibility. In a broad sense, this means that the King cannot be legally prosecuted. Some jurists say that this only refers to criminal procedures, while others claim this immunity is also present in civil procedures; in practice, the King has never been prosecuted and it is unlikely that he would be prosecuted even if it was proven that the monarch had committed a crime. The legal justification for royal immunity is that the King is mandated by the Constitution to fulfill several roles as the head of state; thus, the King is obligated to perform his actions and fulfill his duties, so the King cannot be judged for actions that he is constitutionally obligated to perform.
The fact that the King is not personally responsible for his actions does not mean that his actions are free of responsibility. The responsibility for the King's actions falls into the persons who hold actual political power and who actually take political decisions, which the King only formally and symbolically ratifies. This is done through a procedure or institution called the refrendo ("countersigning" in the official English translation of the constitution).
All the King's actions have to undergo the refrendo procedure. Through the refrendo, the responsibility of the King is transported to other persons, who will be responsible for the King's actions, if such responsibility is demanded from them. Article 64 explains the refrendo, which transports the King's responsibility unto the Prime Minister for most cases, though it also establishes the refrendo for Ministers in some cases. In general, when there is not a formed government, the responsibility is assumed by the President of the Congress of Deputies. Without the refrendo, the King's actions are null and void.
There are only two royal acts that do not require the refrendo. The first encompasses all acts related to the management of the Royal House of Spain; the King can freely hire and fire any employees of the Royal House and he receives an annual amount from the state budget to operate the Royal House, which he freely distributes across the institution. The second one refers to the King's will, which enables him to distribute his material legacy and name tutors for his children, if they are not legal adults.
Article 62 of the Spanish Constitution establishes an exhaustive list of the King's functions, all of which are symbolic and do not reflect the exercise of any political power. The King sanctions and promulgates the laws, which are approved by the Cortes Generales, which the King also symbolically and formally calls and dissolves. The King also calls for periodic elections and for referendums in the cases that are included by the laws or the Constitution.
The King also proposes a candidate for Prime Minister, which is probably the King's most 'political' function, as he traditionally holds meetings with the leaders of all the major political parties in order to facilitate the formation of a government. If a candidate is successfully invested by the Parliament, he formally names him Prime Minister of Spain. When a Prime Minister has been named, he also formally names all the members of his government, all of which are proposed by the Prime Minister himself. The King has both a right and a duty to be informed of all the state affairs; he is also allowed to preside over the government meetings when the Prime Minister invites him to do so, although he has the ability to reject this invitation.
Regarding the Government, the King also formally issues the governmental decrees, as well as bestowing all the civil and military ranks and employments, and he also grants honors and distinctions according to the laws. The King is also the supreme head of the Armed Forces of Spain, although the effective lead is held by the Government of Spain. Finally, the King holds the High Patronage of all the Royal Academies and other organizations that have a royal patronage.
The succession to the Crown is regulated in article 57 which establishes a male preference primogeniture to the successors of King Juan Carlos I and his dynasty, the Bourbon dynasty. The heir to the throne receives the title of Prince or Princess of Asturias as well as the other historic titles of the heir and the other children received the title of Infates or Infantas.
If some person with rights of succession marries against the will of the King or Queen regnant or the Cortes Generales, they shall be excluded from succession to the Crown, as shall their descendants. This article also establishes that if the lines are extinguished, the Cortes Generales shall decided who will be the new King or Queen attending to the general interests of the country.
Finally, the article 57.5 establish that abdications or any legal doubt about the succession must to be figure it out by an Organic Act.
This legal forecast was exercised for the first time of the current democratic period in 2014 when King Juan Carlos abdicated in favor of his son. The Organic Act 3/2014 made effective the abdication of the King. A Royal decree of the same year also modified the Royal Decree of 1987 which establishes the titles of the Royal family and the Regents and arranged that the outgoing King and Queen shall conserve their titles. And the Organic Act 4/2014 modified the Organic Act of the Judiciary to allow the former Kings to conserve their judicial prerogatives (immunity).
The Regency is regulated in article 59. The Regency is a period in which a person exercises the duties of the King or Queen regnant on behalf of the real monarch who is a minor. This article establishes that the King or Queen's mother or father shall immediately assume the office of regent and, in the absence of these, the oldest relative of legal age who is nearest in succession to the Crown.
Article 59 § 2 establishes that the monarch may be declared incapacitated by Parliament if the monarch becomes unfit for the exercise of authority, in which case the Prince or Princess of Asturias shall assume the regency if they are of age; if not, the previous procedure must be followed.
If there is no person entitled to exercise the regency, the Cortes Generales shall appoint one regent or a council of three or five persons known as the Council of Regency. The regent must be a Spaniard and legally of age.
The Constitution also establishes in article 60 that the guardian of the King or Queen during their minority cannot be the same as the person who acts as regent, unless the regent is the father, the mother, or a direct ancestor of the King. A parent can be guardian while he or she remain widowed. If the parent marries again, the parent loses the guardianship, and the Cortes Generales shall appoint a guardian who must comply with the same requirements as to be regent.
Article 60 § 2 also establishes that the exercise of the guardianship is also incompatible with the holding of any office or political representation so that no person can be the guardian of the monarch while holding a political office.
Part III (Sections 66 to 96) deals with the Cortes Generales, the Spanish legislature. It consists of two chambers: the Congress of Deputies and the Senate of Spain, with the former being privileged above the latter, in contrast with other upper chambers, such as the Italian Senate of the Republic.
Each chamber is provided with internal regulatory powers for governance, a Speaker (Presidente) and a Governing Board (Mesa). The Permanent Deputation exerts a limited series of powers during recesses and after the dissolution of the chambers. Joint sessions of the Cortes are presided by the Speaker of the Congress of Deputies under a common procedure code passed by a majority of each chamber.
The Cortes exert legislative, budgetary and control powers over the executive. They have the power to appoint members to the Constitutional Court, the General Council of the Judiciary, the Court of Auditors and the Ombudsman. They have control over the line of succession of the Spanish Crown, with the power to appoint Regents, Tutors and to elect a new head of state according to the interest of Spain if all sucessory lines are exhausted.
Each chambers works in a Plenary or by Commissions, work groups with a composition proportional to each party's representation. Commissions may be assigned the study of bills and matters by the Governing Board, and the Plenary may delegate unto them the passing of certain bills, excluding those related to constitutional reform, international matters, organic laws and the budget. Commissions can be legislative and non-legislative, and permanent or temporary.
Section 68 provides for a lower chamber with a minimum of three hundred and a maximum of four hundred Deputies, elected by universal, free, equal, direct and secret suffrage. The electoral districts are the provinces and the cities of Ceuta and Melilla, with a minimum of two seats for each province and one seat for each city, the rest being apportioned by population. All deputies are elected in each district by proportional representation.
Section 69 establishes the Senate as an upper and territorial chamber. It is elected under a mixed system where 208 Senators are elected directly by universal, free, equal, direct and secret suffrage and the rest are indirectly appointed by the legislative assemblies of the autonomous communities.
Senators are elected by limited voting, with citizens being able to elect all but one members of a district. This affords the second most voted party in each district a degree of representation.
The attributions of the Spanish Senate are subordinate to those of the Spanish Congress, which makes it comparable to the Senate of Canada or the House of Councillors of the National Diet of Japan insofar as it may exert limited control and review powers over the lower chamber.
Article 115 deals with the mechanisms of how and when Congress, the Senate, or the Cortes Generales can be dissolved. This measure requires approval from the King of Spain, who must establish a date for the elections. The proposal for dissolution cannot be submitted during a censure.
For the duration where any of those acts of Article 116 are declared, Congress cannot be dissolved. In the event that Congress had been dissolved or its term expires, the powers of Congress are assumed by the Standing Committee. Since the constitution of Spain was adopted, the state of alarm was only declared twice: once in 2010 for the Spanish air traffic controllers strike, and in March 2020 for the COVID-19 pandemic. The first state of emergency was declared in October 2020 as a result of continued difficulties for the COVID-19 pandemic.
The Spanish Constitution is one of the few Bill of Rights that has legal provisions for social rights, including the definition of Spain itself as a "Social and Democratic State, subject to the rule of law" (Spanish: Estado social y democrático de derecho) in its preliminary title. However, those rights are not at the same level of protection as the individual rights contained in articles 14 to 28, since those social rights are considered in fact principles and directives of economic policy, but never full rights of the citizens to be claimed before a court or tribunal.
Thanks to the political influence of Santiago Carrillo of the Communist Party of Spain, and with the consensus of the other "fathers of the constitution", the right to State intervention in private companies in the public interest and the facilitation of access by workers to ownership of the means of production were also enshrined in the Constitution.
Section 1. If a self-governing community does not fulfil the obligations imposed upon it by the constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the government may take all measures necessary to compel the community to meet said obligations, or to protect the above-mentioned general interest.
On Friday, October 27, 2017, the Senate of Spain (Senado) voted 214 to 47 to invoke Article 155 of the Spanish Constitution over Catalonia after the Catalan Parliament declared independence. Article 155 gave Spanish Prime Minister Rajoy the power to remove secessionist politicians, including Carles Puigdemont, the Catalan leader, and directly rule from Madrid.
There are two methods of amending the Spanish Constitution, detailed below. The Government, the Congress of Deputies or the Senate can propose constitutional amendments. The Parliaments of the Autonomous Communities can also propose a constitutional amendment to the Congress or the Government, but cannot propose an amendment directly.
There have been 2 amendments to the Spanish constitution, one in 1992 and one in 2011, both were passed with the necessary majority and without a referendum being requested.
A constitutional amendment must be approved by a three-fifths majority by both the Congress of Deputies and the Senate. If there is disagreement between the Chambers, a mixed committee will present an agreed text to both chambers for a vote. Even if this procedure fails, and as long as the amendment passed with a simple majority in the Senate, Congress may pass the amendment with two-thirds majority. One-tenth of either deputies or senators may also request, with a 15-day deadline since passage, that the amendment be put to a referendum.
Title X of the Constitution establishes that the approval of a new constitution or the approval of any constitutional amendment affecting the Preliminary Title, or Section I of Chapter II of Title I (on Fundamental Rights and Public Liberties) or Title II (on the Crown), the so-called "protected provisions", are subject to a special process that requires:
The Constitution has been amended twice. The first time, Article 13.2, Title I was altered to extend to citizens of the European Union the right to active and passive suffrage (both voting rights and eligibility as candidates) in local elections under the provisions of the Maastricht Treaty. The second time, in August/September 2011, a balanced budget amendment and debt brake was added to Article 135.
The current version restricts the death penalty to military courts during wartime, but the death penalty has since been removed from the Code of Military Justice and thus lost all relevance. Amnesty International has still requested an amendment to be made to the Constitution to abolish it firmly and explicitly in all cases.
Amnesty International Spain, Oxfam Intermón and Greenpeace launched a campaign in 2015 to amend the article 53 so that it extends the same protection to economic, social and cultural rights as to other rights like life or freedom. After that, the campaign seeks another 24 amendments protecting human rights, the environment and social justice.
The "Statutes of Autonomy" of the different regions are the second most important Spanish legal normatives when it comes to the political structure of the country. Because of that, the reform attempts of some of them have been either rejected or produced considerable controversy.
The plan conducted by the Basque president Juan José Ibarretxe (known as Ibarretxe Plan) to reform the status of the Basque Country in the Spanish state was rejected by the Spanish Cortes, on the grounds (among others) that it amounted to an implicit reform of the Constitution.
The People's Party attempted to reject the admission into the Cortes of the 2005 reform of the Autonomy Statute of Catalonia on the grounds that it should be dealt with as a constitutional reform rather than a mere statute reform because it allegedly contradicts the spirit of the Constitution in many points, especially the Statute's alleged breaches of the "solidarity between regions" principle enshrined by the Constitution. After failing to assemble the required majority to dismiss the text, the People's Party filed a claim of unconstitutionality against several dozen articles of the text before the Spanish Constitutional Court for them to be struck down.
The amended Autonomy Statute of Catalonia has also been legally contested by the surrounding Autonomous Communities of Aragon, Balearic Islands and the Valencian Community on similar grounds as those of the PP, and others such as disputed cultural heritage. As of January 2008, the Constitutional Court of Spain has those alleged breaches and its actual compliance with the Constitution under judicial review.
Prominent Spanish politicians, mostly from the People's Party but also from the Socialist Party (PSOE) and other non-nationalist parties, have advocated for the statutory reform process to be more closely compliant with the Constitution, on the grounds that the current wave of reforms threatens the functional destruction of the constitutional system itself. The most cited arguments are the self-appointed unprecedented expansions of the powers of autonomous communities present in recently reformed statutes: