Nine out of ten Spaniards are setting 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, when 25 million Spaniards were called to the polls to ratify the Magna Carta, and 87.78% of those who went there voted in favor.
More than four decades have passed and the Spain of today is very different from the one that conceived the text, but it has only been modified twice and both at the request of the European Union: in 1992, to allow the community citizens to stand in municipal elections wherever they live, and in 2011, to establish the principle of budgetary stability, which was the result of a controversial PSOE-PP pact, as it broke the 1978 consensus.
Since then, the two major parties have not been able to agree again, although both have at some point shown a willingness to make changes to the Magna Carta. The political context, very volatile now, is also not suitable for the broad agreement that requires constitutional reform, and would not even allow a peaceful debate to develop. The five experts in constitutional law consulted at the universities of Catalonia, Madrid, Andalusia and Galicia agree on this, although there are changes that should be addressed, starting with the territorial issue.
“If there is an inopportune time for a constitutional reform, it is this, because the country is divided in two”, warns the professor of Constitutional Law at the University of Santiago de Compostela (USC) Roberto Blanco. And he makes three reflections before a possible reform: that the constitutions are not changed to bring them up to date, 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 by another politically correct one, but he wonders “if it is worth addressing a reform, which you know where it starts but not where it ends, for a matter that is not of any vital urgency”. The same reflection serves, he says, for more weighty changes, such as article 57, which discriminates against women in the succession to the Crown.
They are minor issues, he assures, when faced with the “only real problem”, which is the territorial one. “In the functioning of the Autonomous State there are problems of cooperation, duplicity, financing…, all this could be improved, but the basic problem is nationalism. The decentralized State works, with the exception of Catalonia and the Basque Country, but the integration of nationalisms cannot be solved by a constitutional reform. What they want is to go away. There is no agreement possible”, he says.
Professor of Constitutional Law José Manuel Vera, of 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 consensus and political tranquility that do not exist”, he says. “Reforms in very complex situations, not a single one, and whatever is done, let it be to amalgamate national sentiment. And for the benefit of society in general”, adds Vera.
In his opinion, the parties should lead this reform, “especially the PP and the PSOE, which are the ones that have shaped 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.” Take as an example the title of the Crown. “It is delicate because they opted for an aggravated procedure of reform with respect to the direction of the State, instead of putting an intangibility clause as in other constitutions”, he says.
“We owe a lot to the Constitution – underlines María Emilia Casas, who was president of the Constitutional Court (TC) from 2004 to 2011-. But time does not pass for nothing, and a reform must be considered, or at least the debate about the reform, which is always positive”. However, he sees it as “totally impossible” to bring it to 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 man’s preference in the succession to the Crown, or to collect the right of the European Union. And it adds other changes, to update the analog reality of 1978 in today’s digital world, or to advance equality. “The women were not there at the time of the constitution, and this must be reformulated”, he points out.
Joaquín Urías, professor of Constitutional Law at the University of Seville, is more emphatic. “We are already late to reform the Constitution. And not only because it has become old, but also because each new generation must have a debate on the issue to see it as their own”, he warns.
Urías, who was a lawyer of the TC between 2004 and 2010, regrets that the political tension prevents a reform, “which is nonsense because it means killing the Constitution”. And make it clear: “We are at the limit, either it will be reformed in the coming years or a new one must be made”.
It proposes changes in three lines, on key issues that have social consensus: expand the catalog of specially protected rights, including housing, pensions and public health; depoliticize and improve the independence of control bodies such as the Constitutional Court or the Supreme Court, and with respect to the autonomous system, fix a financing system and define powers well, which would avoid conflict.
Xavier Arbós, professor of Constitutional Law at the University of Barcelona (UB), also points to 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 bets on limiting the changes, to “not open the door for conflicts to make it impossible to carry them forward”. For this reason, I 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, the Constitutional or the Court of Auditors, and the autonomous block.
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 from partisan influences, but would have a different sensitivity with respect to matters of competence”. And also delimit the scope of the basic legislation so that the autonomous communities have room to develop their legislation.
