Constitution of Spain

Traditionally, writing the preamble to the constitution was considered an honour, and a task requiring great literary ability. The person chosen for this purpose was Enrique Tierno Galván. The full text of the preamble may be translated as follows:

The Spanish Nation, wishing to establish justice, liberty and security, and to promote the welfare of all who make part of it, in use of her sovereignty, proclaims its will to:

Guarantee democratic life within the Constitution and the laws according to a just economic and social order.

Consolidate a State ensuring the rule of law as an expression of the will of the people.

Protect all Spaniards and all the peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions.

Promote the progress of culture and the economy to ensure a dignified quality of life for all

Establish an advanced democratic society, and

Collaborate in the strengthening of peaceful and efficient cooperation among all the peoples of the Earth.

Consequently, the Cortes approve and the Spanish people ratify the following Constitution.

Section 1. Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. National sovereignty belongs to the Spanish people, from whom all state powers emanate. The political form of the Spanish State is the Parliamentary Monarchy.

Section 2. The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.

As a result, Spain is now composed entirely of 17 Autonomous Communities and two autonomous cities with varying degrees of autonomy, to the extent that, even though the Constitution does not formally state that Spain is a federation (nor a unitary state), actual power shows, depending on the issue considered, widely varying grades of decentralization, ranging from the quasi-confederal status of tax management in Navarre and the Basque Country to the total centralization in airport management.

King Felipe's royal insignia[1]

The Constitution dedicates its Part II to the regulation of the monarchy, which is referred to as The Crown (Spanish: La Corona). Article 56 of the Constitution establishes that the monarchy is the head of state and symbolizes the unity of the Spanish state. It refers to the monarch's role as a "moderator" whose main role is to oversee and ensure the regular functioning of the institutions. The King is also the highest-ranked representative of the Spanish state in international relations and only exercises the functions that are explicitly attributed to him by the Constitution and the laws. The King's official title is "King of Spain" (Spanish: Rey de España), but he is allowed to use any other titles that are associated to the Spanish Crown.

The King of Spain enjoys immunity and is not subject to legal responsibility. In a broad sense, this means that the King cannot be legally prosecuted.[2] Some jurists say that this only refers to criminal procedures, while others claim this immunity is also present in civil procedures; in practice, the King has never been prosecuted and it is unlikely that he would be prosecuted even if it was proven that the monarch had committed a crime. The legal justification for royal immunity is that the King is mandated by the Constitution to fulfill several roles as the head of state; thus, the King is obligated to perform his actions and fulfill his duties, so the King cannot be judged for actions that he is constitutionally obligated to perform.

The fact that the King is not personally responsible for his actions does not mean that his actions are free of responsibility. The responsibility for the King's actions falls into the persons who hold actual political power and who actually take political decisions, which the King only formally and symbolically ratifies. This is done through a procedure or institution called the refrendo ("countersigning" in the official English translation of the constitution).

All the King's actions have to undergo the refrendo procedure. Through the refrendo, the responsibility of the King is transported to other persons, who will be responsible for the King's actions, if such responsibility is demanded from them. Article 64 explains the refrendo, which transports the King's responsibility unto the Prime Minister for most cases, though it also establishes the refrendo for Ministers in some cases. In general, when there is not a formed government, the responsibility is assumed by the President of the Congress of Deputies. Without the refrendo, the King's actions are null and void.

There are only two royal acts that do not require the refrendo. The first encompasses all acts related to the management of the Royal House of Spain; the King can freely hire and fire any employees of the Royal House and he receives an annual amount from the state budget to operate the Royal House, which he freely distributes across the institution. The second one refers to the King's will, which enables him to distribute his material legacy and name tutors for his children, if they are not legal adults.

Article 62 of the Spanish Constitution establishes an exhaustive list of the King's functions, all of which are symbolic and do not reflect the exercise of any political power. The King sanctions and promulgates the laws, which are approved by the Cortes Generales, which the King also symbolically and formally calls and dissolves. The King also calls for periodic elections and for referendums in the cases that are included by the laws or the Constitution.

The King also proposes a candidate for Prime Minister, which is probably the King's most 'political' function, as he traditionally holds meetings with the leaders of all the major political parties in order to facilitate the formation of a government. If a candidate is successfully invested by the Parliament, he formally names him Prime Minister of Spain. When a Prime Minister has been named, he also formally names all the members of his government, all of which are proposed by the Prime Minister himself. The King has both a right and a duty to be informed of all the state affairs; he is also allowed to preside over the government meetings when the Prime Minister invites him to do so, although he has the ability to reject this invitation.

Regarding the Government, the King also formally issues the governmental decrees, as well as bestowing all the civil and military ranks and employments, and he also grants honors and distinctions according to the laws. The King is also the supreme head of the Armed Forces of Spain, although the effective lead is held by the Government of Spain. Finally, the King holds the High Patronage of all the Royal Academies and other organizations that have a royal patronage.

The succession to the Crown is regulated in article 57 which establishes a male preference primogeniture to the successors of King Juan Carlos I and his dynasty, the Bourbon dynasty. The heir to the throne receives the title of Prince or Princess of Asturias as well as the other historic titles of the heir and the other children received the title of Infates or Infantas.

If some person with rights of succession marries against the will of the King or Queen regnant or the Cortes Generales, they shall be excluded from succession to the Crown, as shall their descendants. This article also establishes that if the lines are extinguished, the Cortes Generales shall decided who will be the new King or Queen attending to the general interests of the country.

Finally, the article 57.5 establish that abdications or any legal doubt about the succession must to be figure it out by an Organic Act.

This legal forecast was exercised for the first time of the current democratic period in 2014 when King Juan Carlos abdicated in favor of his son. The Organic Act 3/2014 made effective the abdication of the King. A Royal decree of the same year also modified the Royal Decree of 1987 which establishes the titles of the Royal family and the Regents and arranged that the outgoing King and Queen shall conserve their titles. And the Organic Act 4/2014 modified the Organic Act of the Judiciary to allow the former Kings to conserve their judicial prerogatives (immunity).

The Regency is regulated in article 59. The Regency is the period by which a person exercised the duties of King and Queen regnant in behalf of the real monarch that is a minor. This article establishes that the King or Queen's mother or father shall immediately assume the office of Regent and, in the absence of these, the oldest relative of legal age who is nearest in succession to the Crown.

Article 59 § 2 establishes that the monarch may be incapacitated by Parliament if becomes unfit for the exercise of his authority and the Prince or Princess of Asturias shall assume the regency if they are of age, if not, the previous procedure must be followed.

If there is no person entitled to exercise the regency, the Cortes Generales shall appointed one regent or a council of three or five persons known as the Council of Regency. To be Regent it's needed to be Spaniard and legally of age.

The Constitution also established in article 60 that the guardian of the King or Queen during its minority can't be the same as the person who acts as regent unless it's the father, the mother or direct ancestors of the King. The parents can be guardians while they remain widowed. If they marry again they lost the guardianship and the Cortes Generales shall appointed a guardian which must comply with the same requirements as to be Regent.

Article 60 § 2 also establishes that the exercise of the guardianship is also incompatible with the holding of any office or political representation so that none person can be the guardian of the King while in a political office.

Section 1. In the exercise of the right to self-government recognized in Article 2 of the Constitution, bordering provinces with common historic, cultural and economic characteristics, island territories and provinces with historic regional status may accede to self-government and form Autonomous Communities in conformity with the provisions contained in this Title and in the respective Statutes.

Monument to the Constitution of 1978 in Madrid

The Spanish Constitution is one of the few Bill of Rights that has legal provisions for social rights, including the definition of Spain itself as a "Social and Democratic State, subject to the rule of law" (Spanish: Estado social y democrático de derecho) in its preliminary title. However, those rights are not at the same level of protection as the individual rights contained in articles 14 to 28, since those social rights are considered in fact principles and directives of economic policy, but never full rights of the citizens to be claimed before a court or tribunal.

Other constitutional provisions recognize the right to adequate housing,[3] employment,[4] social welfare provision,[5] health protection[6] and pensions.[7]

Thanks to the political influence of Santiago Carrillo of the Communist Party of Spain, and with the consensus of the other "fathers of the constitution", the right to State intervention in private companies in the public interest and the facilitation of access by workers to ownership of the means of production were also enshrined in the Constitution.[8]

Section 1. If a self-governing community does not fulfil the obligations imposed upon it by the constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the government may take all measures necessary to compel the community to meet said obligations, or to protect the above-mentioned general interest.

Section 2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.

On Friday, October 27, 2017, the Senate of Spain (Senado) voted 214 to 47 to invoke Article 155 of the Spanish Constitution over Catalonia after the Catalan Parliament declared the independence. Article 155 powers gave Spanish Prime Minister Rajoy to remove secessionist politicians, including Carles Puigdemont, the Catalan leader and direct rule from Madrid.[9]

There are two methods of amending the Spanish Constitution, detailed below. The Government, the Congress of Deputies or the Senate can propose constitutional amendments. The Parliaments of the Autonomous Communities can also propose a constitutional amendment to the Congress or the Government, but cannot propose an amendment directly.

There have been 2 amendments to the Spanish constitution, one in 1992 and one in 2011, both were passed with the necessary majority and without a referendum being requested.

A constitutional amendment must be approved by a three-fifths majority by both the Congress of Deputies and the Senate. If there is disagreement between the Chambers, a mixed committee will present an agreed text to both chambers for a vote. The revised amendment now requires only a simple majority in the Senate and a two-thirds majority in the Congress. One-tenth of either deputies or senators may also request that the amendment be put to a referendum.

Title X of the Constitution establishes that the approval of a new constitution or the approval of any constitutional amendment affecting the Preliminary Title, or Section I of Chapter II of Title I (on Fundamental Rights and Public Liberties) or Title II (on the Crown), the so-called "protected provisions", are subject to a special process that requires:

• that two-thirds of each House approve the amendment,
• that elections are called immediately thereafter,
• that two-thirds of each new House approves the amendment, and
• that the amendment is approved by the people in a referendum

Title X of the Constitution establishes that the approval of a new constitution or the approval of any constitutional amendment affecting the Preliminary Title, or Section I of Chapter II of Title I (on Fundamental Rights and Public Liberties) or Title II (on the Crown), the so-called "protected provisions", are subject to a special process that requires:

1. that two-thirds of each House approve the amendment,
2. that elections are called immediately thereafter,
3. that two-thirds of each new House approves the amendment, and
4. that the amendment is approved by the people in a referendum

The "Statutes of Autonomy" of the different regions are the second most important Spanish legal normatives when it comes to the political structure of the country. Because of that, the reform attempts of some of them have been either rejected or produced considerable controversy.

The plan conducted by the Basque president Juan José Ibarretxe (known as Ibarretxe Plan) to reform the status of the Basque Country in the Spanish state was rejected by the Spanish Cortes, on the grounds (among others) that it amounted to an implicit reform of the Constitution.

The People's Party attempted to reject the admission into the Cortes of the 2005 reform of the Autonomy Statute of Catalonia on the grounds that it should be dealt with as a constitutional reform rather than a mere statute reform because it allegedly contradicts the spirit of the Constitution in many points, especially the Statute's alleged breaches of the "solidarity between regions" principle enshrined by the Constitution. After failing to assemble the required majority to dismiss the text, the People's Party filed a claim of unconstitutionality against several dozen articles of the text before the Spanish Constitutional Court for them to be struck down.

The amended Autonomy Statute of Catalonia has also been legally contested by the surrounding Autonomous Communities of Aragon, Balearic Islands and the Valencian Community[12] on similar grounds as those of the PP, and others such as disputed cultural heritage. As of January 2008, the Constitutional Court of Spain has those alleged breaches and its actual compliance with the Constitution under judicial review.

Prominent Spanish politicians, mostly from the People's Party but also from the Socialist Party (PSOE) and other non-nationalist parties, have advocated for the statutory reform process to be more closely compliant with the Constitution, on the grounds that the current wave of reforms threatens the functional destruction of the constitutional system itself. The most cited arguments are the self-appointed unprecedented expansions of the powers of autonomous communities present in recently reformed statutes:

• The amended version of the Catalan Statute prompts the State to allot investments in Catalonia according to Catalonia's own percentage contribution to the total Spanish GDP. The Autonomy Statute of Andalusia, a region that contributes less to Spain's GDP than the region of Catalonia contributes, requires it in turn to allocate state investments in proportion to its population (it is the largest Spanish Autonomous Community in terms of population). These requirements are legally binding, as they are enacted as part of Autonomy Statutes, which rank only below the Constitution itself. It is self-evident that, should all autonomous communities be allowed to establish their particular financing models upon the State, the total may add up to more than 100% and that would be unviable.[13] Despite these changes having been proposed and approved by fellow members of the PSOE, former Finance Minister Pedro Solbes disagreed with this new trend of assigning state investment quotas to territories based on any given autonomous community custom requirement[14] and has subsequently compared the task of planning the Spanish national budget to a sudoku.
• The Valencian statute, whose reform was one of the first to be enacted, includes the so-called Camps clause (named after the Valencian President Francisco Camps), which makes any powers assumed by other communities in its statutes automatically available to the Valencian Community.
• Autonomous communities such as Catalonia, Aragon, Andalusia or Extremadura, have included statutory clauses claiming exclusive powers over any river flowing through their territories. Nearby communities have filed complaints before the Spanish Constitutional Court on the grounds that no Community can exercise exclusive power over rivers that cross more than one Community, not even over the part flowing through its territory because its decisions affect other Communities, both downstream or upstream.