Rosa Mary: A Constitution that “imprisons” Democracy

Spain is different, it is very often said. And indeed it is. The Spanish experiment with democracy is one of the most limited in Western Europe. The last dictatorship under the fascist General Franco, which ended after almost 40 years, was not the result of a popular dismantling; it was a monitored dissolution after the dictator’s death (in his bed) in November 1975. It was a controlled demolition under two basic premises: firstly, a general amnesty perspicaciously presented as forgiveness to the opposition, but created with the aim to free them from the crimes commited during decades; secondly, the establishment of a legal framework in which the monarchy (chosen by the dictator) and the unity of Spain were immovably and unquestionably set.

The fact that elements from the old dictatorship controlled the process of democratic construction in Spain has been largely recognized. Even though the constituents started their task during the first semi-democratic elections in June 1977 (in which some political parties could not participate as they were regarded as illegal parties), it has been revealed that several “fathers” of the Constitution of 1978 received a lot of pressure. This pressure was mainly from the Army, which was dominated by fascist elements for many years, and in relation to the question of the Spain’s unity. This explains the wording of article number 2 of the New Constitution as a mixture of two completely different sensitivities when it says, “The Constitution is based on the indissoluble Spanish national unity, common and indivisible homeland of all Spaniards, and it recognizes and guarantees the right to autonomy of the nations and regions that constitute it and the solidarity among them.”

This heavy-handed Spanish nationalism grew out of the remains of the Franco’s
fascist dictatorship, a force still very present in the government. Although labeled a “democratic” process, nationalists pushed for a constitutional agreement that would subvert a diverse Spanish heritage, disregarding different regional sensitivities completely. On December the 6th, 1978, a referendum was held. In which Spaniards had a say on topics never openly discussed before. The decision was over democracy, and the choice was yes or no; to go back to the past or to look towards the future. And so, unsurprisingly, the results were magnificent, although participation was not extremely high. In Spain, 67.1% of the citizens voted, and 88.5% voted yes; in Catalonia, 67.7% of citizens voted; and 90.4% voted yes. The success of the nationalists’ operation was complete. However, the failure to allow a public discussion and the inflexibility of the constitutional text carried with it the seeds of its own destruction.

The new constitutional text incorporated reform mechanisms that blocked any future changes of the elements that the fascist regime had put as a necessary condition for them to peacefully disappear. The country’s basic political structure is unalterable, immutable, fixed. Any change would require the unlikely agreement of the two major political parties, a majority and an automatic dissolution of the houses of parliament and referendum.This immutability, which is in fact an incapacity to adapt the Constitution to changes throughout time is not at all positive, and is in fact a serious mistake in a mature democratic society. It makes the legal text of greater and greater irrelevance to the aspirations of the great majority. Today, all those born after 1958 who could not vote for the Spanish Constitution now have no means with which to express how they would like the organization of the Spanish State to be transformed.

For Catalans today, the constraint imposed by the fascist regime on the Spanish
Constitution is particularly wounding. This is not only because the republican
legitimacy of our institutions dates long before the day the referendum for the
Spanish Constitution was approved ( the Catalan Generalitat was reestablished in September 1977). It is because now the aspiration, freely expressed, in the Catalan national elections, held on November the 25th 2012, to build their own state - and the even more remarkable majority vote to hold a referendum of self-determination - is completely blocked by the immutability of the Spanish Constitutional text. The text is so narrowly interpreted by Spanish governmental bodies and political parties that it cannot and does not respect the clearly expressed will of the Catalan citizens. Historically, Catalonia had its own Constitutions before they were violently abolished in 1714. These Constitutions were flexible laws that could be amended and modified according to the evolving needs of Catalans. This is exactly what we are now claiming: laws (in particular the first one, the fundamental law of Spain) that can be adapted to the democratically expressed will of the people. We do not believe that the will (with a majority) of the communities should be subjugated to a Constitution.
The majority of Catalans do not want a Constitution that was formed in a large part to actually control and limit Catalonian independence.

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