The Drafting and Passing of the 1978 Spanish Constitution

September 1977-December 1978

The drafting of the 1978 Spanish Constitution was the first time in Spanish history that the country's defining text had been decided by a process of consensus and then later approved by the Spanish people at referendum.

The previous twelve Spanish Constitutions had always been the work of a particular group and had been overturned, often by military pronuncamento, when that group fell from political power.

The 1978 Constitution's immediate predecessor was the Spanish Constitution of 1931, which was drawn up at the start of the Second Republic as there had been no Constitution throughout the Franco dictatorship, which was defined by what known as the Fundamental Laws of the Realm.

It is worth bearing in mind that the drafting and passing of the 1978 Spanish Constitution took place against a backdrop of economic crisis and rising unemployment as well as terrorism.

During the fifteen months of negotiations, ETA killed 23 policemen, 22 civil guards, 3 soldiers and 23 civilians, so, despite its imperfections, the final text is a great achievement, under the circumstances.





A Priority for the Suárez Government

According to the Law for the Political Reform, the Cortes, which resulted from the first democratic elections on June 15th 1977, didn't have an expressly constituent character. However, as the law effectively abolished the rest of the Fundamental Laws of the Realm, this obviously made it necessary to draft a Constitution to substitute them. Consequently, the Cortes behaved as if it were a constituent parliament but took great care never to question the monarchy.

The Suárez government wanted to elaborate its own Constitution project to present to the Cortes but strong opposition of the socialists and communists made them rectify and accept the creation of a Commission of Constitutional Affairs in the Congress of the Deputies. This commission would be responsible for drawing up the draft text to be debated first in Congress and then in the Senate.

The Commission named seven members to present the draft made up of three representatives of UCD, Miguel Herrero y Rodríguez de Miñón, José Pedro Pérez Llorca and Gabriel Cisneros, one from PSOE, Gregorio Peces Barba, one from PCE-PSUC, Jordi Solé Tura, one from Alianza Popular, Manuel Fraga Iribarne, and one representing the Basque and Catalan minorities, Miquel Roca i Junyent.

The socialists ceded one of their places to Miquel Roca so that the Catalan nationalists would have representation. On the other hand, UCD refused to cede one of their three places to PNV so there was no representative of the Basque nationalists in the group. Admittedly, though, the PNV wasn't willing to give up its insistence that the "sovereignty of the Basque people" be recognised so it's not surprising that it didn't receive a place.

The group, now known as the Fathers of the Constitution, worked under the strictest confidence, protected from the public view. This contrasted with what happened with the Constitution of 1931, and made it easier to reach the mutual concessions necessary to draft a text that satisfied everyone. The presenters wanted to agree on a text that was acceptable to all the main political parties so the Constitution wouldn't change with every change of government as had happened so often throughout Spanish history.

Unlike what happened in Spain in the 1930s, in the 1970s there was a general consensus over the need for a constitutional text that had the support of the immense majority of the political parties. After eighteen months, this resulted in a constitutional text comprising over 160 articles.

Contentious Issues

Although the final result of the negotiations was relatively successful, the difficulties involved in reaching the final agreement are evident both from the length of the negotiation period and in many elements of the text itself. Until just two years earlier the UCD and Alianza Popular representatives had been members of the Francoist regime, whilst PSOE and PCE had been part of a clandestine and illegal opposition. Furthermore, the issue of the historic nationalities was a bone of contention for both the left and the right.

The essential compromise was reached because UCD was prepared to cede to the demands of the left on the recognition of all fundamental rights and freedoms, whilst PSOE and PCE gave up on their insistence that Spain should be a Republic and accepted the monarchy without demanding a specific referendum on the subject. Similarly, the State-wide parties admitted the proposal of the Catalan nationalist, Miquel Roca, of introducing the term 'nationalities' into the Constitution, although this point was always rejected by a part of UCD and by Alianza Popular, whose heirs in the Partido Popular still reject the concept of a plurinational Spain to this day.

One of the most critical moments, which almost broke the consensus, was the argument over article 7 related to the religious question. Finally an agreed text was arrived at which recognised freedom of education at the same time as allowing the freedom to runs teaching centres. This meant the Catholic Church would keep its religious centres but teachers, parents and pupils would be able to intervene in the control and management of all the centres supported by the government. This included not just state schools but also private and religious schools that received any public money.

Agreement was reached on other points of conflict, such as the right to strike, abortion, the death penalty, the intervention of the State in the economy or the Autonomous Communities, either by both sides making concessions or by deliberately ambiguous wording of articles, as happened with the issue of abortion. The original socialist proposal of "all people have the right to life" was replaced by "all have the right to life". This satisfied the anti-abortionists of the UCD, who included the foetus in this "all" and the pro-abortion socialists, who didn't.

Commission of Constitutional Affairs

The work of the initial group was finished by the end of April 1978 and the Commission of Constitutional Affairs began to debate the draft text on May 5th. The problem was that the commission had 36 members made up of 17 UCD representatives and two from Alianza Popular, making a right-wing majority of 19, which always voted against the combined bloc of 17 from the left and the nationalists on key articles.

The result would have been a clearly right-wing Constitution, which would be overturned as soon as the left came to power as had happened so many times in Spanish history. Adolfo Suárez was aware of the need to agree on a text that would stand not only the test of time but also the winds of political change and called on Fernando Abril Martorell for UCD and the government, and vice general secretary of PSOE, Alfonso Guerra, to hammer out differences of opinion on all the key articles.

The consensus was broadened to the communists and the Catalan nationalists who added their own proposals but a part of Alianza Popular and the PNV still had objections. There was a last minute attempt by Abril Martorell to include the Basque nationalists by adding an amendment that alluded to the historic freedoms, but the PNV continued demanding the recognition of the Basques' national sovereignty, so no agreement was reached.

A sector of Alianza Popular rejected, amongst other things, the inclusion of the term 'nationalities' and the PNV didn't consider the first additional disposition to be a sufficient recognition of "the rights of the Basque people". The text literally states that "The Constitution covers and respects the historic rights of the foral territories. The updating of said foral regime will be done, in this case, within the framework of the Constitution and the Statutes of Autonomy." This meant the contentious issue of the historic nationalities was once more being put off, this time until the drafting of the Statutes of Autonomy.

Parliamentary Vote and Referendum

However, sufficient agreement was reached to get the draft Constitution through the Commission of Constitutional Affairs and, finally, on October 31st 1978, the text of the Constitution was voted on in Congress and the Senate. In Congress, 325 deputies voted in favour, 6 against, five Alianza Popular deputies and the deputy from Euskadiko Ezkerra, and 14 abstained, the 8 PNV deputies, plus 6 from AP and the mixed group. In the Senate, 226 supported the bill and 5 voted against. So the Constitution obtained massive parliamentary support.

On December 6th 1978, the Constitution was submitted to referendum and passed by 88% of voters and rejected by 8% with a turnout of 67.11% of the census, ten points lower than the referendum on the Law for the Political Reform two years earlier. In the Basque Country, the abstention campaign promoted by PNV was successful and there the Constitution was only passed by 43.6% of the census. It was also in the Basque Country where there was the largest percentage of votes against (23.5%) unlike in Catalonia, where the turnout was similar to the rest of Spain and the votes in favour were over 90%.

Despite its flaws, the 1978 Constitution, unlike the one drafted in 1931, is the only Spanish Constitution that is the result of a broad parliamentary consensus and that has been approved by the Spanish people at referendum. It definitely managed to bridge the gap between right and left but the issue of the historic nationalities was never fully resolved and remains a constitutional problem in Spain.



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