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The 1992 Amendment of the Spanish Constitution: A Tale of Two Words

Carlos Flores Juberias
Edited By: Gisbert H. Flanz

© 1997 Oxford University Press

Since its entry into force on 29 December 1978, the Spanish Constitution has only been amended once. The formal simplicity of this amendment—the addition of two words to the original constitutional text—its widely acknowledged lack of serious political implications, the fact that it was passed with the highest degree of consensus among parliamentary political forces, and the fact that it was debated in the middle of the summer on the eve of the Barcelona 1992 Olympic Games, made it pass virtually unnoticed for most Spanish citizens. Notwithstanding these facts, the 1992 Constitutional Amendment did have interesting implications and raised questions which required, but did not always receive, adequate answers. Therefore, it deserves, if not a history, at least a tale.

The amendment affected Article 13.2, which concerns the political rights of Spanish citizens and foreign residents. Article 13.2 established that only Spanish citizens have the rights specified in Article 23, namely: to participate in public affairs, directly or through representatives freely elected, and to accede to public functions and positions. In its original wording the article admitted only those exceptions “which in keeping with the criteria of reciprocity may be established by treaty or law for the right to active suffrage in municipal elections.” This implied that foreign residents in Spain could only vote in local elections whenever a treaty with the country of which they were citizens granted the same privilege for Spanish citizens living in it, and ruled out the possibility of foreign residents running for elected positions, even at the local level.

When the Treaty for the European Union (“the Maastricht Treaty”) was drafted, one of its many innovations was to provide a new wording for Article 8.B.1 of the Treaty for the Constitution of the European Community. This new wording recognized to every EU citizen residing in a member-State of which he or she is not a national “the right to vote and to be elected in local elections of the member-State in which he or she resides, in the same conditions as the nationals of that State.”

At first glance, this provision was incompatible with Article 13.2 of the Spanish Constitution, since the latter only permitted foreigners to exercise—under some conditions—“active suffrage” (the right to vote), but said nothing about enjoying “passive suffrage” (the right to be a candidate and become elected). In such circumstances, Article 95, paragraphs 1 and 2 of the Constitution came to the forefront, since:

(1)  The conclusion of an international treaty which contains stipulations contrary to the Constitution shall require a prior constitutional revision.

(2)  The Government or either of the Chambers may request the Constitutional Court to declare whether or not such a contradiction exists.

In the Spring of 1992 the Government requested that the Constitutional Court clarify whether there was or was not a contradiction between Article 13.2 of the Constitution and the new wording for Article 8.B.1 of the Treaty for the Constitution of the European Community and—in the case that there was—which of the two reform methods specified in the Constitution ought to be used. The Government’s request was the object of strong political and scholarly criticism, and even the Constitutional Court had a part in it, when it issued its July 1, 1992 Declaration.

To begin with, the Court criticized the fact that, when making use of the mechanism envisaged in Article 95.2, the Government had asked the Court to deliver an opinion [Dictamen] about the possible incompatibility between article 13.2 of the Constitution and the Maastricht Treaty. As the Court vehemently affirmed: “we have to start by determining with precision that what can be asked from us is a declaration, and not an opinion. This Court does not cease to be such in order to transform itself, occasionally, by means of a request, in a consultative body [...] although the form of this declaration does not merit the legal qualification of a ‘decision’ [Sentencia], it is a binding judicial ruling.”

Besides, the Court also criticized the Government’s pretension that its ruling remained confined to the analysis of the contradiction between the Maastricht Treaty and article 13.2 of the Constitution. Following a well consolidated jurisprudence, and a strict interpretation of Article 39.2 of its own Statute, the Court reaffirmed its competence to evaluate “the eventual contradiction of prospective Article 8.B.1 of the EEC Treaty with the Constitution, and not only with Article 13.2 (the only disposition individually referred to in the Government’s written petition) since, as it has been said, it is the Constitution in toto, and not just some of its articles, which has to become the reference for this Court.”

Primarily, the Court contradicted the Government’s position by asserting that there was in fact an incompatibility between the two norms in play. Apparent as this contradiction might be for a casual observer, the Government had tried to avoid constitutional reform by suggesting either a generous interpretation of Article 93 of the Constitution, or an extremely lax interpretation of the powers attributed to Parliament by Article 11.1 of the Constitution. The first possibility, which had been endorsed by the Council of State in its June 20, 1991 and April 9, 1992 opinions, argued that the Maastricht Treaty could very well fit into the provisions of Article 93 which allowed “the conclusion of treaties which attribute to an international organization or institution the exercise of competences derived from the Constitution.” It could be understood that it simply attributed to an international organization, the EU, the exercise of a competence—the regulation of citizens’ participation in local elections—which derived from the Constitution, and that, therefore, it was enough to authorize its ratification by means of an organic law. The second possibility suggested by the Government proposed a lax, almost surrealistic, interpretation of Article 11.1 of the Constitution. Since this clause “Spanish nationality is acquired, preserved, and lost in accordance with provisions established by law” attributed to lawmakers the competence to solely regulate Spanish nationality, perhaps a law extending Spanish nationality to every EU citizen with the sole purpose of letting him or her take part in Spanish local elections would be enough to avoid constitutional reform.

The second possibility was unceremoniously ruled out by the Court, arguing that the lawmakers could not freely “mint or stamp nationalities ad hoc with the sole and exclusive goal of eluding the consequences of the limitations contained in article 13.2 of the Constitution.” This would amount to destroying the supremacy of the Constitution itself. Although the first suggestion was object of a more detailed consideration by the Court, it was also ruled out. The Court understood that what the Constitution admitted in Article 93 was the attribution of competences exercised by a State body to an international organization or institution by means of a treaty, but never the modification of the limits posed by the Constitution itself for the exercise of those competences, nor the transference of attributions belonging to the constituent power. The position advocated by the Government amounted to the admission that this Article could be the vehicle for a constitutional reform, disregarding the mechanisms for constitutional reform envisaged in Articles 167 and 168 of the Constitution. The Court stated: “by means of Article 93, the Cortes Generales may relinquish or attribute the exercise of ‘competences derived from the Constitution,’ but not dispose of the Constitution itself, contradicting or allowing the contradiction of its commandments, since neither is the power to revise the Constitution a “competence” the exercise of which is suitable of cession, nor does the Constitution itself admit being reformed by means other than those of Title X.”

Articles 167 and 168 became the object of the Court’s attention it the last part of its Declaration. Once the need of a constitutional amendment had been affirmed, it was necessary to decide which of the two reform procedures specified by the Constitution in Title X had to be used. On the one hand, Article 167 presented the so-called “simplified” amending procedure, stating that:

(1)  Bills on Constitutional amendment must be approved by a majority of three-fifths of the members of each Chamber. If there is no agreement between the Chambers, an effort to reach it shall be made by setting up a Joint Commission of Deputies and Senators which shall submit a text to be voted on by the Congress of Deputies and the Senate.

(2)  If adoption is not obtained by means of the procedure outlined in the foregoing paragraph, and provided that the text has obtained a favorable vote by an absolute majority of the Senate, the Congress of Deputies may approve the amendment by a two-thirds vote.

(3)  Once the amendment has been passed by the Parliament, it shall be submitted to a referendum for its ratification, if so requested by one-tenth of the members of either Chamber within fifteen days after its passage.

On the other hand, Article 168 presented a much more restrictive—“aggravated” is the usual term of reference—amending process, reserved for the total revision of the Constitution, or for a revision of its entrenched provisions:

(1)  When a total revision of the Constitution is proposed, or a partial revision thereof, affecting the Preliminary Title; Chapter II, Section 1 of Title I, or Title II, the principle shall be approved by a two-thirds majority of the members of each Chamber, and the Parliament shall immediately be dissolved.

(2)  The Chambers elected must ratify the decision and proceed to examine the new Constitutional text, which must be approved by a two-thirds majority of the members of both Chambers.

(3)  Once the amendment has been passed by the Parliament, it shall be submitted to ratification by referendum.

The entire problem boiled down to a single question: whether amending Article 13.2 could be said to imply an amendment of Article 23, to which the former makes an explicit reference. If this were the case, then reform could only take place through the cumbersome procedure envisaged by Article 168, as Article 23 was inserted, precisely, in Chapter II, Section 1 of Title I of the Constitution, among the basic rights and civil liberties entrenched in the Constitution. The question was not inconsequential. Among other things, the “aggravated” procedure required the reform to be put to national referendum, while the “simplified” one required only the request of one-tenth of the members of either Chamber. Considering the high degree of consensus among parliamentary parties it was perfectly realistic to believe that by following the “simplified” procedure a referendum, politically risky and economically costly, could be skipped. The Government’s position was that reform could be carried out through the “simplified” procedure, and the Constitutional Court agreed with it in this occasion. Hence, Parliament was confronted with the need to address constitutional reform for the first time since the Constitution itself was adopted, and to do so according to the guidelines provided by the Constitutional Court. The constitutional amendment was passed on July 22, 1992 in the Congress, and on July 30 in the Senate, ratified by H. M. the King on August 27, and published in the Boletin Oficial del Estado of August 28. It consisted of the simple addition of the words “and passive” just before the word “suffrage.” As expected, no legitimized parliamentary minority demanded the calling of the referendum specified in article 167.3, and therefore one never took place. From an strictly juridical point of view, such a referendum was entirely unnecessary. The Constitution did not require it, and there was not even the smallest social movement against the reform being carried out.

However, the fact should not be overlooked that Spain had never held a referendum on the issue of EU membership: not when the country decided to join the EC in 1985, nor when the Maastricht Treaty was concluded in 1992. Therefore, this opportunity was, to some extent, another chance for the Spanish people to have had a direct say in the process of European integration. Maybe it was the fear of a negative evaluation, or of an evaluation not so enthusiastic as the one traditionally endorsed by the political elites, that was the real cause for not holding this referendum.

Viewed from a distance, the main consequence of the 1992 constitutional amendment has neither been the creation of a new electoral geography at the local level due to the addition of foreign residents to voters’ lists, nor a substantial increase of the political consciousness of those, nor even a higher degree of conflict between Spaniards and foreign residents. If any of these has occurred it has remained virtually unnoticed. The main consequence of the 1992 constitutional amendment has been, undoubtedly, the beginning of the end of the myth of the intangibility of the Spanish 1978 Constitution. For many years, reform proposals of all kinds have been firmly, even zealously, rejected for fear of breaking the precious and fragile equilibrium reached on December 1978. But now that reform, however minimal, has proven entirely feasible and that the consensus reached in 1978 has been timely resurrected, it is quite probable that constitutional reform will be attempted once again, perhaps sooner than later.