Spanish Constitution of 1978

The Spanish Constitution of 1978 is the supreme norm of the Spanish legal system, to which all public powers and citizens of Spain are subject since its entry into force on December 29, 1978.

Approved by the Cortes Generales in plenary sessions of the Congress of Deputies and the Senate held on October 31, 1978, the Constitution was ratified in a referendum on December 6, and was sanctioned and promulgated by King Juan Carlos I on December 27. December and published in the Official State Gazette on December 29 of the same year.

The promulgation of the Constitution implied the culmination of the so-called transition to democracy, which took place as a consequence of the death, on November 20, 1975, of the previous head of state, the dictator Francisco Franco, precipitating a series of political and historical events that transformed the previous dictatorial regime into a "social and democratic State of law that advocates freedom, justice, equality and political pluralism as superior values of the legal system", as proclaimed in the first article of the Constitution. It also strengthens the principle of "national sovereignty", which "resides in the Spanish people", and establishes "the parliamentary Monarchy" as a form of government. It also repeals, in the Repealing Provision, the Fundamental Laws of the Kingdom approved in 1938 and modified on multiple occasions, the last one in 1977 precisely to open the way for democracy.

"The Constitution is based on the indissoluble unity of the Spanish Nation, common and indivisible homeland of all Spaniards and recognizes the right to autonomy of the nationalities and regions that comprise it" (article 2). It establishes a territorial organization based "in municipalities, in provinces and in the Autonomous Communities that are constituted", governing "solidarity between all of them". After the process of formation of the State of Autonomies, the autonomous communities enjoy a autonomy of a political nature that configures Spain as an autonomous State. Local entities, such as municipalities and provinces, enjoy autonomy of an administrative nature, and their institutions act in accordance with criteria of opportunity within the legal framework established by the State and autonomous communities.

The king is the head of state, symbol of its unity and permanence, arbitrates and moderates the regular functioning of the institutions, assumes the highest representation of the Spanish State in international relations, especially with the nations of its historical community, and exercises the functions expressly attributed to it by the Constitution and the laws. Its acts are of a regulated nature, the validity of which depends on the endorsement of the competent authority which, depending on the case, is the President of the Government, the President of the Congress of Deputies, or a minister.

The constitutional text establishes the separation of functions (not to be confused with the separation of powers, a fundamental idea of liberal thought). At the base, national sovereignty allows election, by universal suffrage (men and women, over 18 years of age), of the representatives of the sovereign people in the Cortes Generales, configured as an asymmetric bicameralism, made up of the Congress of Deputies and the Senate. Both chambers share the legislative power, although there is a preponderance of the Congress of Deputies, which is also exclusively responsible for the investiture of the Prime Minister and his eventual dismissal due to a motion of censure or a matter of confidence. However, both Congress and the Senate exercise a task of political control over the Government through parliamentary questions and interpellations.

The Government, whose president is invested by the Congress of Deputies, directs the executive branch, including the public administration. The members of the Government are appointed by the president and, together with him, make up the Council of Ministers, a collegiate body that occupies the pinnacle of executive power. The Government responds jointly and severally for his political actions before the Congress of Deputies, which, if necessary, can dismiss him en bloc through a motion of no confidence.

Judicial power rests with the judges and courts of justice, and the General Council of the Judiciary is its highest governing body. The Constitutional Court controls that the laws and actions of the public administration conform to the supreme norm.

History

Scene of the Congress of Deputies in the mid-centuryXIXFor Eugenio Lucas Velázquez.

The constitutional history of Spain took place throughout the XIX century and the beginning of the XX century, and is characterized by a habitual instability of the numerous constitutional texts, which tend to have a partisan and rupture character, with little support and indifference among the people. All this causes constitutions to have, as a general rule, a short duration, succeeding a large number of texts over short periods.

Historical Constitutionalism

The first text that should be referred to is the Statute of Bayonne of 1808, a charter that, given its limited application and its historical context, has had little influence on the history of Spanish constitutionalism.

Beyond this background, the doctrine usually establishes the beginning of Spanish constitutionalism in the Constitution of 1812, which with a liberal and popular character emerged as a response to the Napoleonic invasion. It was an extensive and rigid text, which recognized national sovereignty and proposed a division of powers in which the legislature fell on a unicameral parliament elected by indirect universal suffrage of the fourth degree. The Crown, for its part, enjoyed broad executive powers and temporary veto power over legislative decisions. It was applied between 1812 and 1814; later, between 1820 and 1823, during the so-called Liberal Triennium; and finally, for a short time in 1836.

The following text is included in the Royal Statute of 1834, a charter granted whose drafting was directed by Francisco Martínez de la Rosa, being approved under the Regency of María Cristina. Conservative in nature, its main objective was the regulation of the Crown. As main innovations, it introduced bicameralism (State of Heroes and Attorneys) and direct election.

After the riot at La Granja de San Ildefonso and a brief period of validity of the Constitution of Cádiz, the Constitution of 1837 was promulgated. The new text, of a liberal nature, entailed a revision of the Constitution of Cádiz in which again the principles of national sovereignty and division of powers were enshrined. However, the king's absolute veto, direct election and parliamentary bicameralism of the Royal Statute were preserved, this time under the names of the Congress of Deputies and the Senate. In the first case, the deputies would be elected by direct census suffrage, renewing a quarter of the Chamber every three years. In the second case, the senators were elected by means of a mixed system by which shortlists were designated by direct suffrage, with the king finally choosing one of the three candidates for senator.

After the scarce practical application and observance of the Constitution of 1837 by the public authorities, and Isabel II having reached the age of majority, it was decided to reform it, giving rise to the Constitution of 1845, of a conservative nature. The new wording configured a shared sovereignty between the king and the Cortes. The division of powers was preserved, with a bicameral legislature in which the Congress was renewed in full every five years through direct census suffrage, while the Senate was constituted by royal election from among very high-income Spaniards who were between a series of high ecclesiastical, military and civil positions, or among the high nobility. It is an unstable period in which the Constitution is frequently reformed, leading to a project for a new Constitution that did not come into force, the so-called Non Nata Constitution of 1856.

After the Revolution of 1868, the Constitution of 1869 installed Amadeo I as king and set up a parliamentary monarchy that would be a true democratic milestone in the history of Spanish constitutionalism. Both the Congress and the Senate were elected by universal and direct male suffrage, although to be a senator, belonging to a certain category made up of high civil, military and ecclesiastical positions was required. On the other hand, the Constitution configured a very broad table of Fundamental Rights, such as the right of assembly, association or freedom of worship.

The ungovernability of the country caused the abdication of Amadeo I, and the proclamation of the First Spanish Republic. His Draft Federal Constitution of 1873 proposed a democratic State, whose legislature would fall back on pure bicameralism. Following the federalist model, along with the Federal Constitution would be the constitutions of the different states that settled on the territory, and that would have most of the powers, reserving the federal state for matters such as national defense and foreign policy. The Constitution project did not come into force because of the coup d'état of General Pavía in 1874.

After the Restoration of the monarchy, the Constitution of 1876 was promulgated, whose main promoters would be Antonio Cánovas del Castillo and Manuel Alonso Martínez. Establishing the king as the backbone of the State, executive power and legislative power shared with the Cortes were attributed to him. It was a constitutional monarchy in which the greater or lesser intervention in political life depended on the royal will. The constitutional ambiguity, together with its flexible nature (it could be reformed by the ordinary legislative procedure) meant that it had a very long validity.

After the unstable end of the Constitution of 1876 (Dictatorship of Primo de Rivera, dictator of Berenguer), the Second Spanish Republic was proclaimed, whose Constitution of 1931 established a division of powers in which the legislature fell on a unicameral Parliament elected by direct universal suffrage, and which enjoyed a fixed calendar of sessions, allowing extraordinary convocation and limited suspension of its sessions by the President of the Republic. On the other hand, the executive was entrusted to the President of the Republic who was elected by the Cortes and by delegates elected by universal suffrage in equal numbers to the number of deputies. Legislative power had its apex in the Supreme Court, also creating a Court of Constitutional Guarantees that would resolve the eventual unconstitutionality of laws, appeals for protection and conflicts of legislative competence. The territorial organization was divided into municipalities and provinces, being able to constitute autonomous regions, eventually becoming Catalonia and the Basque Country. Finally, it is necessary to highlight the complete table of Fundamental Rights that said Constitution contained, and that is very similar to that of the current Constitution of 1978.

After the Spanish civil war and the establishment of the Franco regime in 1939, the State became a dictatorship of a personalist and centralist nature that emptied the Parliament of power, suppressed Fundamental Rights and political parties, and even lacked Constitution, replaced by the so-called Fundamental Laws of the Kingdom that configured the so-called organic Democracy, far removed in form and content from liberal democracies.

Transition

The distribution of votes and seats in the constituent legislature profiled a political map without an absolute majority of government and where the most radical options were not successful, and this circumstance collaborated for the benefit of the constitutional agreement.

The death of the dictator and general Francisco Franco, on November 20, 1975, marked the beginning of the process of the Spanish Transition towards representative democracy. Two days after the death of Franco, Juan Carlos I was proclaimed King of Spain, who had been appointed by the dictator, under the provisions of the Law of Succession in the Headquarters of State of 1947. On May 14, 1977, Juan Carlos I became the legitimate heir of the dynastic rights of Alfonso XIII, transferred by the resignation of his father don Juan. This recognition is confirmed in the Constitution, by recognizing Juan Carlos I as the depositary of the "historical dynasty".

In July 1976, President Carlos Arias Navarro was dismissed after the Parliament rejected his Plan for political reform. The subsequent formation of a government chaired by Adolfo Suárez González, appointed by the king according to current legislation, was what managed to open the constituent period.

The Government of Suárez sent the Political Reform bill to the Cortes in October 1976, which was approved and, later, submitted to a referendum following the requirements demanded by the Fundamental Laws (notably the Law of Succession in the Head of state). The Law for Political Reform, which was formally a fundamental law, entailed a notable alteration of the current system: it recognized the fundamental rights of the person as inviolable (article 1), it conferred exclusive legislative power on the popular representation (article 2) and provided for an electoral system inspired by democratic principles and proportional representation.

Subsequently, Royal Decree Law 20/1977, of March 18, regulated the procedure for the election of the Cortes, including the D'Hondt system and state financing of political parties. In April of the same year, the Communist Party of Spain was legalized. All this made it possible to hold the general elections of 1977, the first free elections in Spain since February 1936.

One of the priority tasks of the Cortes was the drafting of a constitution. The Law for Political Reform offered the possibility that the initiative for constitutional reform would correspond to the Government or to the Congress of Deputies, and the latter option was chosen. On August 1, 1977, the Commission of Constitutional Affairs and Public Liberties of the Congress of Deputies appointed a Committee of seven deputies in charge of preparing a draft constitution: these seven people, known as the "Fathers of the Constitution", were Gabriel Cisneros (UCD), José Pedro Pérez-Llorca (UCD), Miguel Herrero and Rodríguez de Miñón (UCD), Miquel Roca i Junyent (Pacte Democràtic per Catalunya), Manuel Fraga Iribarne (AP), Gregorio Peces-Barba (PSOE) and Jordi Solé Tura (PSUC).

Posters of political parties made on the occasion of the Referendum for the ratification of the Spanish Constitution.

The preliminary draft was discussed in the Commission and was later debated and approved by the Congress of Deputies on July 21, 1978. The text of the Congress was then examined by the Constitutional Commission of the Senate and the Plenary of the same organ. The discrepancy between the text approved by Congress and the one approved by the Senate required the intervention of a Mixed Congress-Senate Commission, which drew up a definitive text. This was voted on and approved on October 31, 1978 in Congress with 325 votes in favor (156 from UCD, 110 from the Socialist Group (103 from PSOE-PSC, 4 from ex-PSP and 3 from ex-PDPC), 20 from the PCE, 9 from AP, 8 from Grupo Minoría Catalana (7 from PDPC and 1 from UDC), 1 from CAIC and 7 from the Mixed Group (4 from ex-UCD, 4, 2 from ex-PSP and 1 from Center Català), 14 abstentions (7 from PNV, 2 from AP, 1 from the Catalan Minority Group (1 from ERC), 2 from UCD and 2 from the Mixed Group (1 from ex-UCD and 1 from ERC)) and 6 votes against (5 from AP and 1 from EE); there were also 5 absent deputies (1 from UCD, 1 from PSOE, 1 from PNV and 1 from the Mixed Group (1 ex-UCD)). In the Senate there were 226 yeses, 8 abstentions, 5 noes and 14 absences.

The Draft Constitution, which was submitted to a referendum, was ratified on December 6, 1978 by 87.78% of voters representing the 58.97% of the electoral roll, thus being the only constitution in the history of Spain that has been endorsed and approved by the Spanish people through a referendum. The Constitution was sanctioned on December 27 by the king and published in the Official State Gazette on December 29 in Spanish, the Balearic Islands, Catalan, Galician, Valencian and Basque. Since 1986, Constitution Day has been celebrated on December 6.

Once the Constitution was approved, the Constituent Cortes were dissolved and the general elections of 1979 were held with a result similar to that obtained two years earlier. However, the instability of the State and the ruling party (UCD) ended up causing the resignation of Adolfo Suárez in January 1981, who was replaced by Leopoldo Calvo Sotelo. At the inauguration of the new President of the Government, a group of civil guards, led by Lieutenant Colonel Antonio Tejero, staged a failed coup attempt, known as 23-F. Calvo Sotelo's presidency ended after the 1982 general elections, which gave the PSOE a wide victory.

Structure

The Spanish Constitution of 1978 is made up of a preamble, 169 articles divided into a preliminary title and ten numbered titles, four additional provisions, nine transitory provisions, one repeal and one final. Following the French tradition, its content can be structured into a dogmatic part, with constitutional principles and fundamental rights, and an organic part, with the division of powers and the political and territorial organization.

Preamble

Enrique Tierno Galván was in charge of preparing the Preamble to the Spanish Constitution of 1978 together with Donato Fuejo Lago, Raúl Morodo Leoncio, Pablo Lucas Verdú and Enrique Linde Paniagua whose writing is characterized by its utopian nature. The text makes it special mention of democratic values, respect for human rights and the establishment of the rule of law, thus outlining the fundamental objectives of the Constitution.

Dogmatic part

The dogmatic part is made up of the constitutional principles, which determine the political and territorial configuration of the Spanish State and its hallmarks, the enumeration and regulation of fundamental rights and their guarantees, and the guiding principles of social policy and economic. In this way, the dogmatic part is composed of:

• Preliminary title (arts. 1-9)
• Title I, «Fundamental Rights and Duties» (arts. 10-55)
  • Chapter I, «From Spanish and foreign» (arts. 11-13)
  • Chapter II, «Rights and freedoms» (arts. 14-38)
  • Chapter III, «Guiding principles of social and economic policy» (arts. 39-52)
  • Chapter IV, «Guarantees of Freedoms and Fundamental Rights» (arts. 53 and 54)
  • Chapter V, «Derogation from Rights and Freedoms» (art. 55)

Organic part

The organic part designs the structure of the State, regulating the basic organs that exercise state powers. The Spanish system preserves Montesquieu's tripartite design of the division of powers, between the Executive Power, the Legislative Power, and the Judicial Power. The corresponding sections in the Spanish Constitution are the following:

• Part II, «From the Crown» (arts. 56-65)
• Part III, «General Courts» (arts. 66-96)
• Part IV, «Government and Administration» (arts. 97-107)
• Part V, «Relations between the Government and the General Courts» (arts. 108-115)
• Part VI, «From the judiciary» (arts. 117-127)
• Part VII, «Economy and Finance» (arts. 128 - 136)
• Part VIII, «of the territorial organization of the State» (arts. 137-158)
• Part IX, «From the Constitutional Court» (arts. 159-165)
• Title X, «Constitutional reform» (articles 166 to 169).

The Constitution ends with 4 additional provisions, 9 transitory provisions, 1 repealing provision and 1 final provision.

Features

Monument to the 1978 Constitution of Madrid, located in Plaza San Juan de la Cruz, between the streets of Vitrubio and Paseo de la Castellana, in Madrid.

It is a written constitution that is framed within the tradition of continental law and in contrast to the English system, whose Constitution is not included in a specific text but derives from a heterogeneous set of customs and texts, configured according to the throughout its long constitutional history.

It is a rigid constitution, since it contains a specific procedure for the reform of its precepts. On the contrary, flexible constitutions would be those that can be modified by the ordinary legislator, in the case of the English system. The rigidity is manifested in title X, which indicates the procedure for constitutional modification, also establishing the need for an aggravated procedure to alter certain constitutional precepts. The text is thus safe from modifications made under the ordinary legislative procedure, and however, it can be adapted to the new social realities without the need to interrupt the legal continuity of the system.

On the other hand, it is a derivative constitution, since according to comparative law, it does not include radical innovations, but is based on Spanish historical constitutionalism, and especially in the European constitutions after the Second World War.

The Spanish Constitution of 1978 is the second largest in the history of Spanish constitutionalism, after the Spanish Constitution of 1876. It contains 169 articles, as well as nine transitory provisions, four additional ones, one repeal and one final.

Introductory title

The preliminary title (articles 1 to 9) establishes the constitutional principles that constitute the fundamental basis of the Constitution, being the ideological-political substrate on which it is based. In addition to founding the constitutional precepts themselves, the constitutional principles have a special hermeneutic and interpretative value. Given its position within the Constitution, its modification is especially aggravated and comparable to a true constitutional mutation.

The first two articles of the Spanish Constitution establish the following constitutional principles on which the rest of the Constitution is based: Social and democratic rule of law, parliamentary monarchy and State of autonomies.

Rule of Law

Historically, the rule of law meant the submission of state power to legal norms as a guarantee of the individual freedom of individuals. The Constitution includes such a principle consecrating a division of powers, in which the legislative power enjoys direct democratic legitimacy, emanating laws that enjoy hierarchical superiority over the rest of the State's normative production. Likewise, the judiciary enjoys hierarchical independence from the other powers, in order to ensure its impartiality.

To complete the concretion that the Constitution makes of the rule of law, it is necessary to point out the principle of administrative legality, according to which, the action of the public Administration is governed by law, there being no place for action that does not have regulatory coverage. It is the so-called positive linkage of public powers, reflected in article 9.1 of the Constitution. To this must be added the prohibition of the arbitrariness of the public powers contemplated in article 9.3.

The principle of criminal, tax and procedural legality is also explicitly included in the legal system. Basing the State on legal norms, the characteristics that these must have for the sake of greater legal certainty are also outlined. In this way, article 9.3 proclaims the principle of publicity of regulations, and the principle of non-retroactivity of sanctioning provisions that are not favorable or restrictive of individual rights.

Social status

The Constitution recognizes the Social State in the preamble and in the first article. Its development is located in chapter III of title I, and in title VII. The consecration of the social State implies that public powers not only allow equality and freedom, but must actively intervene to promote these values and remove obstacles that prevent or hinder their fullness. If the rule of law implied a limit to the public powers to guarantee a sphere of equality and freedom to the individual, the social State demands that the public powers develop an activity tending to achieve material equality and effective freedom. In this way, the Constitution includes a series of precepts where a fairer and more equitable redistribution of income is sought.

Along with this economic redistribution, the Constitution proposes an interventionist state in the protection of certain assets such as housing, health, work or access to culture. Thus, for example, article 40.2 mentions intervention to obtain adequate working conditions, while article 41 talks about Social Security and article 43 about universal access to public health.

Democratic state

Parliamentary monarchy

Article 1.3 of the Constitution states that the political form of the Spanish State is the parliamentary monarchy. Thus, the aforementioned form of government implies that the king is the head of state, but he does not control the executive power, but rather it is subject to parliamentary control. The Constitution dedicates its title II to the Crown, including the regulation of its functions, the succession to the throne, the regency, the guardianship of the minor king and the figure of the endorsement. Thus, a monarchy with a mostly symbolic power is configured and does not grant the king an effective decision-making capacity.

According to Paul Preston, King Juan Carlos I was interested in having his functions include being able to call referendums and proposing, after the elections, the candidate for president of the Government to submit to the investiture debate in the Congress of the Deputies. The first did not succeed, but the second did (article 99). Don Juan Carlos told the journalist José Oneto in January 1978, when the paper presented the draft of the draft Constitution: «I think that the way things are going I will have fewer powers than the King of Sweden, but if that helps all political parties accept the monarchical form of the State, I am ready to accept it. And it was what happened. The communist speaker, Jordi Solé Tura, declared that his non-party questioned the monarchy (the general secretary of the PCE Santiago Carrillo had said: "as long as the monarchy respects the Constitution and popular sovereignty, we will respect the monarchy"), and the socialist Gregorio Peces Barba upheld the Republic amendment, but once it was defeated he did not insist on it. On the other hand, Don Juan Carlos managed to maintain the traditional preference of the male line over the female in the succession to the Crown and to be considered the "legitimate heir of the historic dynasty" (art. 57), which, according to Preston, "did away with a stroke of the pen the Francoist origins of the monarchy".

State of the autonomies

The 1978 Constitution recognizes and guarantees the right to autonomy of the different nationalities and regions in its article 2, relating the principle to the unity of the Spanish nation and solidarity among the autonomous communities that compose it. On the other hand, the principle of autonomy presides over the territorial configuration of the State, which according to article 137, is organized in municipalities, provinces and autonomous communities. It is necessary to distinguish, however, local autonomy (municipalities and provinces) with a markedly administrative nature, and the autonomy of nationalities and regions (autonomous communities) of greater political-administrative significance.

Armed Forces

When the draft Constitution was being debated, the Joint Chiefs of Staff (JUJEM) presented a series of observations. The main one was the reference that should be made to the role of the Armed Forces, which according to the military leadership should be the same as that assigned to it by article 37 of the Francoist Organic State Law. The UCD rapporteur Miguel Herrero de Miñón was in charge of having this "observation" incorporated into the constitutional project. However, the military did not achieve everything they wanted because the Public Order Forces were not included among the Armed Forces, establishing the distinction between them for the first time, although they did manage to move the article referring to the Armed Forces from Title IV, dedicated to the Government and Administration, to the Preliminary Title, which "represented an important symbolic concession". Article 8.1 was worded as follows [next to the article of the Francoist legislation referring to the same subject]:

Organic Law of the State (1967)
Art. 37. The Armed Forces of the Nation, formed by the Land, Sea and Air Forces and the Public Order Forces, guarantee the unity and independence of the Homeland, the integrity of its territories, national security and the defence of institutional order.

Constitution of 1978
Art. 8.1. The Armed Forces, formed by the Army of Land, the Navy and the Air Force, have as their mission to guarantee the sovereignty and independence of Spain, to defend its territorial integrity and the constitutional order.

Regarding the recognition of the King as Supreme Commander of the Armed Forces —another of the "observations" presented by the military—, it was included in Article 62.h, which established that the King had "supreme command of the Armed Forces". Armed". However, article 97 made this leadership symbolic, although many soldiers did not understand it, as was revealed during the failed coup d'état of "23-F", by establishing that "the Government directs domestic and foreign policy, the civil and military Administration and the defense of the State".

On the other hand, military pressure failed to get the term “nationalities” removed from Article 2 of the Constitution —two of the soldiers appointed by the king as senators, Admiral Marcial Gamboa Sánchez-Barcáiztegui and General Luis Díez -Alegría, they presented both amendments but they were unsuccessful. He also did not succeed in having the abolition of the death penalty for military crimes removed from the Constitution, except in cases of war, but he did manage to dilute the recognition of the right to conscientious objection (since it was not included among the fundamental rights and it was established that it would be regulated "with due guarantees", "being able to impose, where appropriate, a substitute social benefit"). And he also managed to prevent the abolition of courts of honor in the Army (article 26 only prohibited "Courts of Honor in the field of civil Administration and professional organizations").

Title I: Fundamental Rights and Duties

Title I (articles 10 to 55) establishes the fundamental rights and duties. The 1978 Constitution develops the broadest table of fundamental rights of Spanish historical constitutionalism. The doctrine agrees that it is an open enumeration, which allows the possible inclusion of new fundamental rights that are inherent to the dignity of the person through constitutional modification, jurisprudential interpretation or the signing of agreements and international treaties, as it appears in article 10.

The dualistic nature of fundamental rights has been recognized by the jurisprudence of the Constitutional Court. In its first aspect, they are subjective rights in favor of people, whose passive subject is the public authorities. On the other hand, they are also values that shape the political system, legitimizing it in front of the citizen.

Chapter I: Spaniards and foreigners

Chapter I establishes the ownership of constitutional rights. Article 11 establishes that Spanish nationality is acquired, preserved and lost in accordance with the provisions of the law. It also prohibits any Spaniard of origin from being deprived of her nationality. Article 12 sets the age of majority at eighteen years. Article 13 establishes that foreigners in Spain will enjoy the public liberties guaranteed by Title I in the terms established by treaties and the law.

Regarding the position of legal persons, and their possible ownership of fundamental rights, it should be noted that there is a reiterated constitutional jurisprudence that attributes to them the right of association, the right to honor, effective judicial protection, to the inviolability of the home, and to freedom of expression and information.

Chapter II: Rights and freedoms

Chapter II begins with article 14 that establishes the principle of equality before the law, without any discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance.

Section I of Chapter II (articles 15 to 29) lists fundamental rights and public liberties. Rights that are exercised individually are determined: right to life (art. 15), to ideological and religious freedom (art. 16), to personal liberty and security (art. 17), to privacy and inviolability of the home (art. 18), to choose the place of residence (art. 19), and freedom of expression and dissemination (art. 20). Rights exercised in common are also determined: right of assembly (art. 21), of association (art. 22), participation (art. 23), education (art. 27), strike (art. 28) and petition (art. 29). The freedoms of education (art. 27) and unionization (art. 28) are also included. On the other hand, the articles dedicated to procedural guarantees are collected: judicial protection of rights (art. 24), the principle of criminal legality (art. 25), paid work for prisoners (art. 25) and prohibition of courts of honor (art. 26).

Section II of Chapter II (articles 30 to 38) establishes the rights and duties of citizens. They are military service and conscientious objection (art. 30), public finances (art. 31), right to marriage and divorce and equality between spouses (art. 32), the right to private property (art. 33), to create a foundation (art. 34), the right and duty to work (art. 35), the creation of professional associations (art. 36), the regulatory framework for working conditions through agreements, and to exert pressure in labor conflicts (art. 37). In addition, the freedom of enterprise and the market economy are enshrined, although the economy may be planned (art. 38).

Chapter III: On the guiding principles of social and economic policy

Chapter III contains articles 39-52. They describe the foundations of the welfare state, in accordance with the constitutional mandate for a social state (art 1). It includes provisions for a public pension system, a social security system, for public health and for cultural rights.

Chapter IV: Guarantees of fundamental rights and freedoms

Chapter IV establishes a series of guarantees of fundamental rights. Article 53 establishes the reservation of the Law, which means that the regulatory development of certain matters cannot be carried out through regulations. In the case of fundamental rights, the Constitution establishes the reserve of law for all of Chapter II, also including the guiding principles contained in Chapter III. On the other hand, the Constitution also establishes a reserve of organic law for rights fundamentals contained in section I of chapter II, which also cannot be regulated by decree law or by legislative delegation.

Article 54 establishes the institution of the Ombudsman, elected by the Cortes Generales, who is in charge of defending fundamental rights, supervising administrative action and reporting to the Cortes. He is competent to file an appeal for amparo and an appeal for unconstitutionality before the Constitutional Court.

The fundamental rights contained in section I and in articles 14 and 30.2 will be protected by the ordinary courts, following a procedure based on the principles of preference and summary . Once the ordinary judicial route has been exhausted, individuals are entitled to access the appeal for amparo before the Constitutional Court.

In the same way, the constitutional jurisdiction can protect the violations of fundamental rights (not only of section I) through the appeal of unconstitutionality, which, however, has serious restrictions regarding the legitimate bodies to file it, being exclusively at the disposal of the President of the Government, the Ombudsman, 50 deputies, 50 senators or the legislative or executive body of an autonomous community.

Certain guarantees of fundamental rights also have the rank of fundamental right. This is the case with the habeas corpus procedure for the immediate judicial disposal of a detainee or the right to effective judicial protection and a process with due guarantees (presumption of innocence, right to defense, judge predetermined by law, etc.)

Title II: Corona

The arms shield of the king of Spain, according to Royal Decree 527/2014.

Title II (articles 56 to 65) regulates the institution of the Crown. Article 56 establishes that the King is the Head of State, symbol of his unity and permanence, arbitrates and moderates the regular functioning of the institutions and assumes the highest representation of the Spanish State in international relations .

Functions

Article 62 establishes the constitutional functions of the king:

• Sanction and enact laws.
• Call and dissolve the General Courts, and convene elections.
• Call for a referendum.
• To be informed of State issues and, as appropriate, to preside over the Council of Ministers.
• Propose and, if any, appoint the President of the Government.
• Name and dismiss the members of the Government.
• Send royal decrees, grant civil and military jobs, as well as honors and distinctions.
• To exercise the right of grace under the law, which may not grant general pardons.
• Hold the supreme command of the Armed Forces.
• Hold the High Patronage of the Royal Academy.

However, the nature of the Crown is eminently symbolic: all the king's acts will always be endorsed by the President of the Government, the competent ministers or the President of Congress, as appropriate. The endorsement is a requirement for the valid existence of the king's own act, which, if it had not been endorsed, simply does not exist. In addition, the eventual responsibility for such acts will fall on the person who endorses them since the person of the king is inviolable and is not subject to responsibility. There are only two acts of the king that do not require an endorsement: the management of the Royal House and the appointment in his will of a tutor for the minor king.

Succession

Article 57 regulates the succession to the throne of Spain. This article designates Juan Carlos I de Borbón as the legitimate heir of the historic Spanish dynasty and establishes the succession rules. The regular order of primogeniture and representation is followed, the preceding line always being preferred over the subsequent; in the same line, the closest degree to the most remote; in the same degree, the man to the woman, and in the same sex, the oldest person to the youngest. In the event that all the lines called to succeed to the throne are extinguished, the Cortes Generales are in charge to choose a successor. In addition, people who marry against the express prohibition of the King and the Cortes Generales are excluded from the succession to the Crown, as well as their descendants.

The Constitution gives priority to sex over age in accession to the Crown, something that contradicts the constitutional spirit of non-discrimination based on sex established in article 14. The current regulation has its origin in the proclamation of Felipe de Bourbon, younger than his two sisters, as crown prince. This proclamation was made in 1977, while the constitutional process was taking place, and it was considered a fait accompli that should not be altered in the final draft of the Constitution.

In March 2005, the Zapatero government consulted the Council of State on a possible reform of the Constitution that would include a review of the order of succession to the throne so that age would prevail over sex. The Council of State was in favor of said reform, as well as the inclusion of a precept that indicated the indistinct use of the term king or queen. However, he also stressed that the aggravated constitutional reform procedure of article 168 would have to be followed.

Regency

Article 59 regulates the regency for cases in which the king is a minor or is disabled. To be able to exercise the regency it is a requirement to be of legal age and Spanish. In addition, the regency is exercised by constitutional mandate and always in the name of the king. Before the king's minority, the king's father or mother is appointed regent, and failing that, the closest adult to succeed in the Crown. On the other hand, in the event that the king disqualifies himself and such impossibility is recognized by the Cortes Generales, the crown prince holds the regency, provided he is of legal age. Otherwise, it proceeds in the same way as for the king's minority, until he reaches the age of majority.

In the event that it is not possible to find a person to whom the regency corresponds by the aforementioned procedures, the Cortes Generales are in charge of appointing the regency, which must be made up of one, three or five people.

Guardianship

The king's minority also implies the appearance of a tutor who acts on his behalf and in his interest, and whose position is incompatible with the performance of any political office or representation. Article 60 establishes as guardian the person named by the late king in his will, provided he is of legal age and Spanish by birth. Failing that, guardianship rests with the father or mother of the minor king, as long as they remain widowers. If it is not possible either, the Cortes Generales are in charge of appointing a guardian. In any case, the possibility of a single person holding the position of tutor and regent is prohibited, except in the case of the father, mother or a direct ascendant of the king.

Title III: General Courts

Palacio de las Cortes, headquarters of the Congress of Deputies

Senate Palace, Senate Headquarters

Title III (articles 66 to 96) of the Constitution regulates the Cortes Generales, the constitutional body that represents the Spanish people and is made up of the Congress of Deputies and the Senate. The preponderance of Congress over the Senate configures an attenuated bicameral parliamentarism.

The Constitution establishes that each chamber has a regulation, a president and a table. It also establishes a Permanent Deputation per chamber, which will perform certain functions (extraordinary summons, declaration of states of alarm, exception and siege) in the periods in which the chamber is not convened. For joint sessions, they meet in Cortes Generales chaired by the president of Congress, and are governed by common regulations approved by an absolute majority of each chamber.

The legislative power rests with the Cortes, as well as the approval of the General State Budgets, the control of the Government's actions and other functions, such as the appointment of magistrates of the Constitutional Court, that of members of the General Council of Power Judicial, that of counselors of the Court of Accounts and that of the Ombudsman. They also provide a successor to the Crown, regent or guardian when the line of succession to the throne is exhausted.

The Chambers will function in plenary session or by committees. The plenary session is constituted by the meeting of all the deputies. The commissions are small working units whose members are appointed by the parliamentary groups in proportion to their presence in the Chamber. The commissions are aware of the projects and matters entrusted to them by the Board of the Chamber, delegating the Plenary to them for the approval of projects and bills. However, they will not be able to act on issues related to constitutional reform, international issues, organic and basic laws and the General State Budgets. Regarding the types of commission, a distinction must be made between permanent and non-permanent commissions; and legislative and non-legislative.

Congress of Deputies

Article 68 of the Constitution regulates the composition of the Congress of Deputies, which must have between 300 and 400 parliamentarians. The deputies are elected by universal, free, equal, direct and secret suffrage. The electoral constituencies are the provinces of Spain, in addition to Ceuta and Melilla. Each province has a minimum of two seats and one for the autonomous cities. The rest of the seats are distributed according to population criteria. The election is verified in each constituency based on proportional representation criteria.

Senate

Article 69 of the Constitution regulates the composition of the Senate. It is the chamber of territorial representation. It is made up of senators elected by a mixed system: 208 senators elected by universal, free, equal, direct and secret suffrage and a variable number of senators appointed by the legislative assemblies of the autonomous communities.

The election of senators by suffrage differs from that used for the Congress of Deputies. It is a vote in open lists in which the preferred candidates are voted, with a maximum of the number of seats assigned to the constituency, minus one. The latter configures a corrected majority system that tends to ensure the representation of the second most voted party in the province.

The functions that the Constitution reserves to the Senate place it in a position of subordination vis-à-vis the Congress of Deputies. In this way, Spain follows the "cooling chamber" which in comparative law has Japan or Canada as examples.

Title IV: Government and Administration

Palacio de la Moncloa, official headquarters of the Presidency of the Government, and regular meeting place of the Council of Ministers.

Title IV (articles 97 to 107) regulates the figure of the Government, establishing essential aspects of its functions, its composition, its formation and dismissal, and the eventual criminal liability of its members.

Functions

The Constitution attributes to the Government a political function, an executive function and a normative function. Each one of them represents a facet of the Government, although the close interconnection that exists between them makes it difficult for them to appear in isolation.

The political function includes a wide and varied set of acts ranging from the establishment of a political program and some administrative guidelines of a social and economic scope to the declaration of war and the direction of the Armed Forces. It is also necessary to point out the acts related to foreign policy (negotiation of international treaties), the filing of unconstitutionality appeals, the dissolution of the Cortes, the call for a consultative referendum, or the intervention in the autonomous community that fails to comply with its obligations.

The normative function is further divided into two categories. In the first place, a legislative function shared with the Cortes and subject to them, consisting of the attribution of legislative initiative (bill), the production of Legislative Decrees after parliamentary delegation and the issuance of urgent regulations with the force of law, known as decree laws, which will have to be subsequently validated or repealed by the Congress of Deputies. On the other hand, the second category of the normative function refers to the regulatory power expressly mentioned in article 97, which allows the issuance of norms with regulatory rank in the development of laws, either in the form of a royal decree (approved by the Council of Ministers), or by ministerial order (approved by a single minister).

Finally, the executive function could be defined as the function of specifying and executing the laws, and includes, among others, the functional and organic management of the Public Administration, the resolution of administrative appeals or the appointment of positions of political trust. Doctrinally, the power of the Government to issue implementing regulations is usually included within the executive function, although such power can also be included within the normative powers.

Composition

The Constitution uses the terms "Government" and "Council of Ministers", so that they could be considered equivalent concepts. However, a certain doctrinal sector has sustained the distinction between one and the other, based on the simultaneous use of both terms in article 116.2 of the Constitution. It should be noted that this position has not been echoed in successive legal texts, which refer to the Government and the Council of Ministers as the same institution.

The Council of Ministers is a collegiate body that is made up of the President, the Vice-Presidents, where appropriate, the Ministers and the other members established by Law. Note that the aforementioned precept It ends with the possibility of including new members by law, although this possibility has had a restricted use, being able to cite as major innovations the inclusion of a secretariat of the Council of Ministers embodied in the Ministry of the Presidency or the appearance of possible ministers without portfolio.

President of the Government

The President of the Government is in charge of directing the action of the Government and coordinating the functions of its members. The Constitution assigns him a fundamental role by attributing to him the appointment and dismissal of ministers, vice presidents and other members of the Government. The formation of the Government occurs through the presidential inauguration, an act by which the Congress of Deputies places its political trust in the president to form a Government. This bond of trust occurs between Congress and the president, not between Congress and the Government, so that eventual political responsibility falls directly on him through the motion of censure and the question of confidence.

Such is the importance of the president within the Government that his resignation, death or withdrawal of parliamentary confidence implies the automatic dismissal of the Government as a whole. In a formal sense, his importance is manifested within the Council of Ministers, whose presidency It is attributed to it, therefore corresponding to the convening of its sessions, the establishment of the agenda and the direction of the deliberations that take place within it. In practice, the will of the president prevails over that of the rest of the members that make up the Council of Ministers.

The Constitution attributes to the president, directly, a varied list of functions, among which it is worth mentioning the duty to inform the king, the endorsement of his acts, the power to ask him to preside over the Council of Ministers, the competence to call a consultative referendum, to submit to the question of confidence before Congress, and will even be empowered to dissolve the Cortes Generales. Finally, the Constitution also makes it competent to file an appeal of unconstitutionality before the Constitutional Court.

Vice Presidents

The Constitution only mentions the figure of the vice-president in its article 98, where it states that the Government is made up, among others, of the vice-presidents in their case. From such a brief regulation it is derived that there may be one or more vice-presidents, giving the possibility that there may not even be any. The Government Law specifies their functions a little more, although it maintains an indeterminate character that makes the vice-presidencies markedly flexible figures. It is worth noting the substitution function in the absence or illness of the president and the generic attribution of the matters that the president delegates to them.

Ministers

Palacio de Santa Cruz, headquarters of the Ministry of Foreign Affairs and Cooperation.

The Constitution avoids dealing in detail with the figure of the minister. Limiting itself to the regulation of its essential elements, it establishes its inclusion within the Government body. Apart from this mention, its appointment and dismissal at the will of the President of the Government is established, and reference is made to its figure sporadically to what throughout the constitutional text, as is the case of mentioning the ministerial endorsement of some acts of the king.

Ministers have a twofold nature. On the one hand, they are members of the Council of Ministers and participate in its deliberations and decision-making. On the other, they are the head of a certain ministerial department, and within it, they carry out the tasks of management, organization and supervision; they stand as representatives of the State in their sectoral scope; and are responsible for the performance of their department. Articles 12 and 13 of the Organic Law on the Functioning of the General State Administration list the functions of the ministers in great detail.

Formation and Termination

The Constitution includes the principle of governmental continuity, aimed at avoiding power vacuums between the cessation of a government and the formation of the next. In this way, it correlates both processes, so that the necessary cause for the formation of a Government corresponds to the cessation of the previous one. In the intermediate period between formation and termination, the outgoing government continues in office until the new government takes office.

The principle of continuity becomes even more intense in the regulation of the motion of no confidence, to which the Constitution grants the character of constructive, demanding the proposal of an alternative candidate in the same procedure that will cause the dismissal of the previous president.

Investment

Article 99 of the Constitution establishes the investiture procedure for the President of the Government of Spain. The king meets with the representatives of the political groups of the Congress of Deputies and proposes a candidate for the presidency of the Government through the president of the Congress of Deputies. The candidate proposed by the king exposes before the Congress of Deputies the political program of the Government that he intends to form. The Congress of Deputies can grant its confidence to the candidate by an absolute majority of affirmative votes in the first ballot or by a simple majority 48 hours later. If the candidate obtains the confidence, the king appoints him president of the Government. Otherwise, successive proposals are processed. If after two months the President of the Government has not been invested, the Chambers are dissolved and elections are called.

Termination

The Constitution includes as causes for the dismissal of the Government the holding of general elections —at the end of the four-year term or by early dissolution—, the withdrawal of confidence from the Congress of Deputies —through the approval of a motion of censure or rejection of a matter of trust—, and the death or resignation of the President of the Government.

The dismissal of the Government by final judicial decision against the president is not expressly contemplated in the Constitution, although part of the doctrine affirms that it is an implicit dismissal. It could take the form of civil incapacitation, which would mean that the president has lost his capacity to act; or for criminal responsibility, in the event that the resolution prevented him from exercising presidential functions by establishing some type of provisional prison, or a custodial sentence or disqualifying him from holding public office.

Public Administration

Title IV also contemplates a mention of the guiding principles of the Public Administration, thus covering the whole of the Executive Power. The Public Administration is configured as the service and management apparatus of the general interest. Despite the fact that the constitutional text mentions a single Administration, it must be understood that as a consequence of the State of the autonomies there are a plurality of territorial Administrations (general, autonomous and local) on which in turn depend a multitude of instrumental Administrations.

The Constitution hardly details the organization of the Public Administration, although it requires that its bodies be created, governed and coordinated in accordance with the Law. On the other hand, the mention that article 97 does about the direction that the Government exercises over the Civil Administration should be understood restricted to the General Administration of the State. It should be remembered that according to article 137, the State is territorially organized into municipalities, provinces and autonomous communities; and likewise, all these entities are endowed with autonomy for the management of their respective interests, that is, each of them directs its own Administration.

Activity

The constitutional text delegates to the ordinary legislator the development of four capital aspects of administrative activity:

• Hearing of citizens: either through organizations, either individually, citizens are expected to be heard during the development of administrative rules affecting them.
• Citizen access to archives and records: the constitutional mandate exempts information that may pose a risk to the security and defence of the State, affects the investigation of a crime or infringes the right to privacy.
• Administrative procedure: a procedure for the production of administrative acts is required. The hearing of stakeholders is also scheduled, where appropriate under the law.
• Property responsibility: the injury of property and rights of individuals as a result of administrative activity entails the birth of a right of compensation for the injured, in the terms indicated by law.

Principles

The constitutional principles that govern the actions of the Public Administration serve as a basis for the subsequent development of the functional and organizational aspects of the different administrations. The Constitution contemplates in article 103.1 the principle of objectivity, effectiveness, hierarchy, decentralization, decentralization, coordination, and submission to law and law.

The principle of objectivity is related to the impartiality of public officials, and with the interdiction of administrative arbitrariness. The Administration may not act or make a distinction in treatment between those administered, except in accordance with the purposes justified by law. In this last way, the principle of objectivity can be related to the principle of equal treatment contained in article 14.

Regarding the principle of effectiveness, we must point out the constitutional desire for administrative activity to achieve the desired results at the service of general interests. Closely related to the principle of coordination between administrations, it is manifested in a paradigmatic way in the management entrustment and in the obligation, which falls on the various administrations, to provide each other with the necessary information for the effective exercise of their powers.

On the principle of hierarchy, a double aspect can be discerned, normative and administrative. The normative hierarchy supposes a subordination of the norms of regulatory rank to the norms with the force of law, and ultimately, to the constitutional norms. The administrative hierarchy implies a pyramidal organization in which within the same Administration there are hierarchically superior bodies, in charge of the direction, supervision and inspection of the hierarchically inferior bodies. The latter may receive delegated functions from their superiors, go to them for conflicts of competence with hierarchically equal bodies, and eventually, answer disciplinary action before them. The appeal against acts of lower bodies is resolved by the higher body, and likewise, the higher body may invoke for itself some competence of the lower body.

The principle of institutional decentralization refers to the transfer of ownership of powers carried out between an Administration and an entity with its own legal personality created by that same Administration. This principle supposes the appearance of the so-called instrumental Administration, aimed at effectively satisfying the benefits of an interventionist State. Decentralization is not a mere delegation or management task, taking into account that the Administration that derives from the ownership does not supervise the exercise of competence by the entity that receives it.

The principle of deconcentration is a figure analogous to decentralization, although the transfer of powers occurs between the bodies of the same administration, and not between different administrations. Deconcentration may be horizontal, that is, between hierarchically equal bodies; or it will be vertical, so that a higher body gives up its own powers in favor of a lower body.

The principle of coordination is presented in the relations between the different ministerial departments; between the General Administration and the regional administrations; and between the autonomous administrations themselves, which use the agreements as a coordination instrument. In another sense, it should be noted that the principle of coordination is opposed to the principle of hierarchy. Where there is a hierarchical relationship, coordination is excluded, and in a similar way, there can be no coordination other than between two entities that are related as equals.

Finally, regarding the principle of submission to law and law, it is the administrative reflection of the principle of linkage contained in article 9.3. In the case of the Administration, a positive link is produced, so that it can only do what the law allows. On the contrary, citizens are subject to a negative link, being able to do everything that the law does not prohibit. On the other hand, this principle must be connected with that of objectivity, so that the Administration will only use as a parameter of action what the regulation provides. Thus, administrative discretion is limited by a regulated core established by law, and its acts cannot deviate from the intended purposes without incurring in a misuse of power. The Contentious-Administrative Jurisdiction is in charge of guaranteeing this principle.

Title V: Relations between the Government and the Cortes Generales

Title V (articles 108 to 116) determines the relations between the Government and the Cortes Generales. The parliamentary system, enshrined as a constitutional principle, implies that the Government must be controlled by the Cortes Generales. This parliamentary control is explained by the bond of trust that governs the relationship between both powers, and can take two forms: parliamentary control in the strict sense or political responsibility.

Parliamentary scrutiny

The Constitution authorizes the Cortes Generales to obtain information from the Government, request the appearance of one of its members, establish commissions of inquiry and formulate questions and interpellations. However, none of these mechanisms can legally bind the decisions of the Government, something that does not prevent eventual conditioning by mere criteria of political opportunity.

The Cortes Generales and its commissions can obtain information regarding the central government or the government of an autonomous community through the president of the chamber in question. They can also request the presence of members of the government and, for their part, members of the Government can attend parliamentary meetings and be heard in them.

Regarding parliamentary questions and interpellations to the Government, the Constitution obliges to dedicate a minimum weekly time to them, which is regulated in the regulations of the chambers. It also points out that interpellations can lead to a motion in which the chamber expresses its position in this regard. The regulations of the chambers have extensively regulated questions and interpellations, distinguishing both figures based on their nature. In this way, the questions deal with specific facts or topics, and allow a very agile debate between the parliamentarian who asks and the member of the Government who answers. For their part, the interpellations must deal with general policy issues, and allow a calmer debate in which representatives of the different parliamentary groups can intervene.

Finally, the plenary session of a chamber can create an investigative commission to control any matter that affects the public interest, including the actions of the Government. The investigation is made up of faculties similar to those mentioned (obtaining information, face-to-face control and questions) and its result does not bind or affect judicial decisions, although the conclusions can be reported to the Public Prosecutor.

Political responsibility

The existence of the bond of parliamentary trust towards the Government translates into its political responsibility. Article 108 states that this responsibility can be demanded exclusively by the Congress of Deputies, and not by the Senate, in keeping with the attenuated bicameralism in which the Parliament of Spain is configured. The Spanish Constitution regulates two procedures in which this political responsibility is demanded of the Government: the question of confidence and the motion of censure.

Article 112 establishes the question of confidence, which allows the Government to request the confidence of the Congress of Deputies on its program or on a general policy statement. The matter is presented to Congress at the initiative of the President of the Government, after deliberation in the Council of Ministers. The granting of confidence is produced by a simple majority, and supposes the continuity of the Government. If Congress does not grant its confidence, the Government is terminated and the investiture procedure of article 99 is opened.

Article 113 establishes the motion of censure, which allows the Congress of Deputies to force the resignation of the Government. The motion must include an alternative candidate and must be presented at the initiative of one tenth of the deputies. If the motion is approved by an absolute majority, the president and the other members of the Government are dismissed. When the motion is approved, confidence is granted to the alternative candidate, who is appointed president by the king.

Dissolution of the Cortes

The President of the Government, after deliberation by the Council of Ministers, can propose the dissolution of the Cortes, which will be decreed by the King; if a motion of no confidence is not being processed and more than a year has passed since the last call for elections.

States

Article 116 regulates states of alarm, exception and siege; that will be regulated by organic laws.

• State of alarm: decreed by the Council of Ministers, giving account to the Congress for a duration of 15 days. The decree determines the territorial scope. It can only be extended with the authorization of Congress.
• State of emergency: it is decreed by the Government with the authorization of the Congress (the Council of Ministers puts the conditions, territorial scope...) for 30 extended days.
• State of siege: The Government proposes it and the absolute majority of Congress authorizes it and determines its territorial scope, duration...

Title VI: Judiciary

Headquarters of the Supreme Court in the Plaza de la Villa de Paris.

Headquarters of the Constitutional Court.

Title VI (articles 117 to 127) regulates the judiciary. It seeks to consolidate a fully independent judiciary capable of adequately developing jurisdictional power. With the same objective, the Constitution regulates the statute of judges and magistrates, also configuring a judicial government body embodied by the General Council of the Judiciary. The existence of a Public Prosecutor's Office is also included, which will promote the action of justice in defense of legality, the rights of citizens and the public interest.

The constitutional title begins with article 117, stating that justice emanates from the people and is administered in the name of the King by Judges and Magistrates who are members of the judiciary [...] subject solely to the rule of Law. This precept defines the position of the judiciary within the political-constitutional structure.

Principles

Judicial independence

The Constitution endows the judiciary with independence. Judges and magistrates shall be irremovable and may not be separated, suspended, transferred or retired except for any of the reasons and with the guarantees provided by law. Likewise, the appointments, promotions, inspection and disciplinary regime will be left in the hands of the General Council of the Judiciary, the governing body of the judiciary, independent from the rest of the constitutional powers.

The Constitution also tries to ensure judicial impartiality through a regime of incompatibilities whose regulation is delegated to the legislator; In any case, it is established that judges and magistrates, while they are active, may not hold other public positions, nor belong to political parties or unions.

Jurisdictional exclusivity

The jurisdictional activity can only be exercised by the courts and tribunals that the law determines, prohibiting any jurisdiction by the Government and the Administration; and even Parliament, whose investigative commissions do not bind the courts. However, there are two exceptions: first, the Constitutional Court, which despite carrying out jurisdictional tasks, does not fall within the judiciary; and, on the other hand, the jurisdiction of the Court of Justice of the European Communities, in charge of disputes arising from European Community law.

In addition, the Constitution establishes the exclusive dedication of judges and courts to jurisdictional activity and to those that expressly are attributed to them by Law in guarantee of any right. principle with the regime of incompatibilities and prohibitions established in the Constitution.

Jurisdictional unit

Territorial unity implies the jurisdiction of the judiciary over the entire country, without prejudice to the territorial organization of its different bodies, which may be competent in a municipality, in a judicial district, in a province, in an autonomous community and even in all of Spain. The prohibition of exceptional courts complements the principle of unity, and supposes the access of all citizens, equally, to the natural judge previously established by law, and to the ordinary jurisdiction of a single judicial power. However, the Constitution contemplates several exceptions, compatible with the unity of the judiciary:

• Military jurisdiction shall act in the strictly military sphere and in the case of state of siege.
• Customary and traditional courts, of a very restricted nature, constitute an assumption of popular participation in the administration of justice.
• The Court of Audit shall have its own jurisdiction over the responsibility of the holders of charges dealing with the handling of public flows. This is without prejudice to the appeal of its decisions before the Supreme Court.
• The holders of certain charges shall be strengthened and judged by the Supreme Court. This is the case, among others, of parliamentarians and members of the Government.

Jurisdictional fullness

Jurisdictional fullness has two faces. On the one hand, it assumes that judges have to resolve, in any case, the issues they are aware of, and they will not be able to rely on the obscurity of the norm or its gaps to deny a resolution, since it would mean denying the fundamental right to judicial protection. effective. On the other hand, that same effective judicial protection implies the public obligation to comply and enforce judicial decisions, and collaborate both in the resolution of the process and in its subsequent execution.

Procedural principles

Article 119 establishes that justice will be free when so provided by law and, in any case, for those who prove insufficient resources to litigate. Free legal assistance thus becomes a benefit-type right, related to the principle of the social rule of law, although its exact delimitation will remain in the hands of the legislator, taking into account public interests and specific budget availability.

Article 120.1. establishes that judicial proceedings will be public. The publicity of the process and the sentence is enshrined as a Fundamental Right in article 24.2. Being a fundamental part of due process, constitutional jurisprudence has indicated that its mission is, on the one hand, to protect the parties from justice subtracted from public control, and on the other, to maintain the trust of the community in the Courts, constituting in both senses such a principle one of the bases of due process and one of the pillars of the rule of law. Additionally, the Constitutional Court has also linked the principle of publicity with the right to freely receive information.

Article 120.2 establishes the principle of predominant orality, especially in criminal matters. This is intended to favor the obtaining of information by the judge through direct and immediate contact with the parties. The law has respected the predominant orality in criminal proceedings, although it has limited it in civil, commercial or contentious-administrative proceedings, which are predominantly written.

Article 120.3 establishes the principle of motivation of judicial decisions, which seeks to avoid the arbitrariness of judges and magistrates in the performance of their jurisdictional activity. Therefore, they will be obliged to issue reasoned and argued resolutions in accordance with the law, having to legally support any decision or ruling.

Judicial responsibility

Similar to the administrative patrimonial responsibility, the Constitution establishes a direct responsibility of the State, which must indemnify the damages caused by judicial error or as a consequence of the abnormal functioning of the administration of justice. It is a patrimonial responsibility different from the eventual disciplinary, civil or criminal liability that judges and magistrates may incur for the unlawful performance of their duties. On the other hand, constitutional jurisprudence has established that for the damage to be compensable, the individual must have exhausted all the means of procedural defense that he could have counted on.

Judges and magistrates

Article 117 establishes that judges and magistrates are in charge of administering justice. Judges and magistrates must be independent, immovable, responsible and subject solely to the rule of law, and may not be separated, suspended, transferred or retired, except for any of the reasons and with the guarantees provided by law.

Article 126 establishes that judges and magistrates as well as prosecutors, while they are active, may not hold other public office, nor belong to political parties or unions. The law will establish the regime of incompatibilities of the members of the judiciary, which must ensure their total independence.

General Council of the Judiciary

Headquarters of the General Council of the Judiciary.

Article 122 establishes the General Council of the Judiciary as the governing body of the judiciary. Among its functions are appointments, promotions, inspection and disciplinary regime. The General Council of the Judiciary is made up of the President of the Supreme Court, who presides over it, and twenty members appointed for a period of five years. Twelve of them come from the judicial career, elected as established by an organic law, and the remaining eight are jurists of recognized prestige with more than 15 years of professional experience, four of whom are appointed by Congress, and the other four by the Senate. The Organic Law of the Judiciary establishes that the 12 members of the judicial career are also appointed by the Cortes Generales. The General Council of the Judiciary elects the President of the Supreme Court.

Prosecutor's Office

Article 124 establishes the Public Prosecutor's Office as a body whose mission is to promote the action of justice in defense of legality, of the rights of citizens and of the public interest protected by the Law, ex officio or request of the interested parties, as well as ensuring the independence of the Courts and procuring before them the satisfaction of the social interest. The Constitution establishes that the Public Prosecutor's Office will be guided by the principles of unity of action, hierarchical dependency, impartiality and subjection to legality. Of these, the only one that they do not share with judges and magistrates is that of hierarchical dependency: the Public Prosecutor's Office is organized hierarchically, and its action ultimately depends on the State Attorney General, who is elected by the Government. For this reason, constitutional jurisprudence has denied the Public Prosecutor's Office both its character as an administrative body and its authentically judicial nature.

Title VII: Economy and Finance

Title VII (articles 128 to 136) deals with the organization and distribution of national wealth. Article 128 establishes that all national wealth, whatever its ownership, is subordinated to the general interest.

Article 134 establishes that the Government must prepare the General State Budgets annually and the Cortes Generales must approve them. If the budgets are not approved before the corresponding year, those of the previous year are automatically extended. Once the budgets are approved, the Government can present bills to increase or decrease public spending for the same year. In addition, any proposal or amendment that supposes an increase in expenses or a decrease in income requires the consent of the Government for its processing.

Title VIII: Territorial organization

Title VIII (articles 137 to 158) is dedicated to the territorial organization of the State. It establishes that the State is organized territorially in municipalities, provinces and autonomous communities. These entities have autonomy to manage their interests.

Historically, the 1978 Constitution breaks with the centralist tradition started in 1700 by Felipe V, as an attempt to solve the regional problem and the demands of the Basque, Galician and Catalan nationalist groups, without forgetting the Aragonese, Canarian, and Andalusian nationalist minorities and Valencian.

Autonomous Communities

Territorial division, according to autonomous communities.

The second article of the Constitution recognizes the right to autonomy of the regions and nationalities that make up the Spanish nation. Chapter III of Title VIII establishes the creation procedure and the mode of operation of the autonomous communities. Each autonomous community has an autonomous government, an autonomous Assembly and an Autonomy Statute that establishes the name, the territory, the organizational model and the powers that the community assumes.

The Constitution determines the procedures for the creation of autonomous communities from the Spanish provinces. There are two ways to access autonomy: the slow path, established in article 143, and the fast path, established in article 151. The fast path allows a higher level of self-government to be obtained from the beginning but has more demanding requirements than the slow way. The communities that are formed through the slow route do not have all the powers at the time of being constituted and must wait five years to be able to receive the rest of the powers that are not exclusive to the State. Between 1979 and 1983 the seventeen autonomous communities were constituted. In order of accession to autonomy, the autonomous communities are: Basque Country, Catalonia, Galicia, Andalusia, Asturias, Cantabria, La Rioja, Murcia, Valencian Community, Aragon, Castilla-La Mancha, Canary Islands, Navarra, Extremadura, Balearic Islands, Community of Madrid and Castilla y León. In addition, the fourth transitory provision establishes a mechanism for the possible incorporation of Navarra into the Basque Country.

Article 155 provides the State with a coercive mechanism to oblige the autonomous communities to comply with the obligations imposed by the Spanish Constitution of 1978 or other laws, or that seriously threaten the general interest of Spain.

Relations between the General State and the autonomous communities are not governed by a principle of hierarchy, but by cooperation. The Constitution does not exhaust the distribution of powers, which was later outlined by framework and transfer laws and by the Statutes of Autonomy. However, in article 149.1 it establishes a core distribution of powers that must be respected by the legislator. It is not a homogeneous nucleus, but contains both the exclusive powers of the State, as well as the matters in which there is joint intervention by the State together with the autonomous communities.

Due to the principle of jurisdictional unity, the judiciary is unique throughout the national territory, so that the autonomous communities will not have bodies with jurisdictional powers. However, it should be noted that there are certain points of relationship between the administration of justice and the autonomous communities. In this sense, constitutional jurisprudence has allowed the autonomies to provide material, personal and economic resources to the administration of justice in their territory, provided that they are limited to the administrative sphere without jurisdictional powers. The Superior Court of Justice will be the highest jurisdictional body in the territory of the autonomous community.

Local entities

Chapter II of title VIII establishes the bases for the regulation of the local Administration and establishes that local entities may have their own taxes, in addition to participating in state and regional taxes. The constitutional provisions regarding local entities They were subsequently developed by Law 7/1985, of April 2, regulating the bases of the local regime.

The Constitution recognizes municipalities and provinces as local entities, in addition to the islands in the Canary and Balearic Islands. However, it leaves open the possibility of creating groups of municipalities other than the province. The subsequent configuration of the local regime it has created the figure of the commonwealth, the metropolitan area and the region.

Municipality

Article 140 establishes the autonomy of municipalities as local entities, which enjoy full legal personality. The town halls, made up of the mayor and the councilors, are in charge of the government and administration of the municipalities. The councilors are elected by the residents of the municipality through universal, equal, free, direct and secret suffrage. The mayors, in turn, can be elected by the councilors or directly by the residents, according to the municipal organization model, which the Constitution does not specify how it should be.

In Spain there are a total of 8131 municipalities. Local autonomy has been the subject of numerous jurisprudence by the Constitutional Court, which has tried to outline its own sphere of competence and is compatible with the power of the General State and the autonomous community in which it is located.

Province

The 52 provinces of Spain

Article 141 configures the province as a local entity with its own legal personality determined by the group of municipalities whose modification requires an organic law. In addition, the province also fulfills the function of territorial division for the fulfillment of the activities of the State, as well as the task of serving as an electoral constituency. The Government and administration of the provinces is carried out by the provincial councils or other representative corporations.

The Local Government Bases Law develops the constitutional provisions stating that the provincial council will consist of a Plenary Session, a Governing Board, a president and vice-presidents. Likewise, it establishes as basic functions of the province to ensure the adequate provision of municipal services, as well as coordinating the actions of the different municipalities, among themselves, and with the autonomous communities or the General State.

Title IX: Constitutional Court

Headquarters of the Constitutional Court.

Title IX (articles 159 to 165) is dedicated to the regulation of the Constitutional Court. This specific and independent court has jurisdiction to annul norms with the force of Law, resolve jurisdictional issues between the constituted Powers, and serve as the ultimate guarantor of the Fundamental Rights of section I before the public powers.

The Constitutional Court extends its jurisdiction over the entire Spanish territory, and its declarations of unconstitutionality of Laws and norms with the force of Law have repealing effect erga omnes. Likewise, the Constitution entrusts the legislator the regulation of the functioning of the Constitutional Court, the statute of its members, the procedure before it and the conditions for the exercise of actions.

In this way, the Organic Law of the Constitutional Court defines the body as the supreme interpreter of the Constitution, indicating its independence from other constitutional bodies and establishing its exclusive and exclusive submission to the Constitution and the aforementioned Organic Law.

Composition

Article 159.1 establishes that the Constitutional Court is made up of twelve magistrates appointed by the king and elected as follows: four by the Congress of Deputies by a three-fifths majority, four by the Senate by a three-fifths majority, two by the Government and two by the General Council of the Judiciary. The members of the Constitutional Court are appointed from among judges, magistrates, university professors, public officials and lawyers, all of them jurists of recognized competence with more than fifteen years of professional experience. Four of its members are renewed every three years, their total term of 9 years.

Article 159.4 states that the status of magistrate of the Constitutional Court is incompatible with any representative mandate; with political or administrative positions; with the performance of managerial functions in a political party or in a union and with employment at their service; with the exercise of judicial and fiscal careers; and with any professional or commercial activity.

The figure of the president of the Constitutional Court receives a brief regulation by the Constitution, indicating that he will be chosen from among its members by the Plenary of the Court, and in this sense, appointed by the king for a period of three years. This constitutional provision is developed by the Organic Law of the Constitutional Court, which together with the president includes the figure of the vice president. This law establishes a secret vote for both, which requires an absolute majority in a first round. If this is not possible, the second ballot requires a simple majority. In the event of a tie, a new vote is held, which in the event of a tie again, assumes the prevalence of the oldest member. As a closing clause, with equal seniority in the body, the oldest member is appointed.

Attributions

The Constitution includes a numerus apertus of attributions to the Constitutional Court, in such a way that it only includes a core of powers that can later be expanded by organic law, as in fact happens. In this way, the constitutional text consecrates the appeal of unconstitutionality, the appeal for amparo, the conflict of autonomous competence, the challenges of resolutions or autonomous provisions and the question of unconstitutionality.

For its part, the Organic Law of the Constitutional Court includes conflicts of jurisdiction between constitutional bodies; conflicts in defense of local autonomy; the prior declaration of constitutionality of international treaties; and the verification of the appointments of magistrates of the Constitutional Court itself. Likewise, the Plenary of the Court is allowed to issue regulations to regulate its own organization, operation and regime of personnel or services.

Article 162 specifies the legitimacy necessary for the filing of appeals. For the appeal of unconstitutionality, the President of the Government, the Ombudsman, fifty Deputies, fifty Senators, the collegiate executive bodies of the autonomous communities and, where appropriate, their Assemblies will be legitimated. For the appeal of amparo, any natural or legal person who invokes a legitimate interest, as well as the Ombudsman and the Public Prosecutor's Office, will be legitimated. For the rest of the procedures, the Constitution entrusts its regulation to the development by organic law. Finally, article 163 regulates the question of unconstitutionality establishing an implicit legitimacy in favor of the organs of the judiciary.

Title X: Constitutional reform

Title X (articles 166 to 169) establishes the procedures for the reform of the Spanish Constitution. The initiative for constitutional reform corresponds to the Government, the Congress of Deputies and the Senate. In addition, the autonomous Assemblies have an indirect initiative: they can submit their proposal to the Board of the Congress of Deputies or request the Government to adopt the proposal. In any case, the referral of article 166 does not include the popular initiative, so that this must be understood as excluded in relation to the constitutional reform.

The Spanish Constitution allows the reform of all its content, contrary to other examples of comparative constitutionalism, which endow part of its content with an intangible character. However, there are certain chapters of the Constitution that are considered especially important for the constitutional structure, and for this reason, they are endowed with a special rigidity, whose reform procedure is as restrictive as the approval of a new Constitution.

Ordinary procedure

The ordinary constitutional reform procedure requires the approval of the reform initiative by a three-fifths majority, both in Congress and in the Senate. If there is disagreement between both chambers, a mixed commission tries to present a consensual text that will again be put to a vote. If the Commission's text does not obtain the support of three-fifths of the Senate and the Congress of Deputies, there is the possibility of possibility of obtaining its approval through an absolute majority of the Senate and a two-thirds majority of the Congress of Deputies. Finally, one tenth of the deputies or senators can request that the text approved by the Cortes be submitted to a binding referendum.

Aggravated procedure

The Constitution considers the reform of the preliminary title, title II —relating to the Crown—, or section I of chapter II of title I —which establishes fundamental rights and public liberties— to be of special importance. For this reason, it contains an intangible clause by virtue of which its modification requires the use of an aggravated reform procedure, whose approval requires a two-thirds majority in both Chambers, and implies its immediate dissolution. After the consequent general elections, the new The courts have to re-approve the reform by a new two-thirds majority. The reform is finally approved if it is ratified by referendum.

Reforms

1992 Reform

In 1992 the first reform to the Spanish constitution of 1978 was carried out. of the CDS, PNV and the Mixed Group, jointly presented a reform proposal that consisted of adding, in article 13.2, the expression "y passive" referring to the exercise of the right of suffrage of foreigners in municipal elections, to adapt the Constitution to the Maastricht Treaty that requires that foreigners from the community be allowed to stand in municipal elections. As the articles mentioned above were not affected, the Parliament was not dissolved, and as 10% of deputies or senators did not request a referendum, it was not held.

2011 Reform

The 2011 reform revolves around the modification of article 135 of the Constitution, establishing in the text the concept of "budgetary stability", establishing a maximum ceiling of structural deficit for the autonomous communities and the State, and giving "absolute priority" to the payment of the public debt in the budgets. Said deficit will be delimited by an organic law, which in no case may contravene the ceiling set by the European Union. The reform obliges local entities to obtain a balanced budget from the year 2020. It also establishes that the amount of the public debt as a whole may not exceed 60% of GDP.

The reform proposal was made by urgent procedure and single reading, on August 23, 2011 by the President of the Government José Luis Rodríguez Zapatero. The reform had the support of the two majority parties, the PP and PSOE and also with UPN. Since these three parties jointly had more than 90% of deputies and senators and, as it was a reform by ordinary process, a referendum was not necessary, which was not requested by 10% of the representatives of one of both chambers within the deadline which was scheduled to end on September 26, 2011. However, the rest of the parties represented in the chamber were dissatisfied with said reform in which, according to them, they had not been called upon to negotiate, which led them to accuse both parties of "breaking the constituent process".