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Constitution Making and Democratization © Copyright by The

Constitution Making and Democratization © Copyright by The

15 Constitution Making and Democratization The Spanish Paradigm1

Andrea Bonime-Blanc

s a type of political change, a tran- pluralism; with a variety of political ideologies sition from authoritarianism to and mentalities; with some political mobilization is on par, in its conse- and participation possible through political par- ties; and in which a leader exercises power within quences, with a revolution, civil war, or coup formally well-defined limits (constitutional ones) A 3 d’etat. To understand transitions, one must that are normally quite predictable. first understand the nature of the regimes that the transition is evolving away from While an authoritarian leader may be char- and toward. in the 1970s was evolving acterized as aconstitutional or abusive of © Copyrightaway from an authoritarian by regime, the which Endowmentconstitutional limits (if there areof any), a Juan Linz defines as follows: democratic leader usually has well-defined powers limited not only by constitutionally theAuthoritarian United regimes are politicalStates systems with Institute of Peace limited, not responsible, political pluralism; sanctioned powers—the judiciary and the without elaborate and guiding ideology (but legislature—but also by constitutionally pre- with distinctive mentalities); without intensive dictable limits. or extensive political mobilization . . . and in If an authoritarian regime is the starting which a leader (or occasionally a small group) point and a democratic regime the end point exercises power within ill-defined limits but ac- tually quite predictable ones.2 of a transition, the transition itself may be defined as an evolutionary period of reform By utilizing contrasting concepts, one can coupled with regime change. Such a period turn Linz’s definition of authoritarian re- of reform and regime change may contain gimes into a useful definition of democratic two or more of the following developments: regimes: the pluralization and mobilization of society Democratic regimes are political systems with from below; the liberalization of socioeco- mostly unrestricted and responsible political nomic policies; the constitutionalization of

417 418 Andrea Bonime-Blanc

political activity; and the liberalization and icy, began to feel increasing social pressure possible democratization of the bureaucracy. and demands. Its responses throughout the This chapter focuses on one aspect of one 1960s were a mix of piecemeal policy reform transition to democracy: the constitution- and overall repression. making period during Spain’s transition to In the mid-1960s, however, new politi- democracy in the late 1970s. The constitu- cal factors began to emerge within Spain’s tionalization of political activity consists of authoritarian regime. A limited number of the democratic reordering and restructuring governmental elites became interested in re- of political rules and institutions. Such dem- forming the political system. The extent of ocratic mainstays as regular elections, free- this interest neither became clear nor did it dom of association, the separation of govern- translate into regularized effective . But mental powers, and guarantees of individual politicians did emerge from the ranks of the liberties are integrated or reintegrated into pro-reform Francoists who would compete the mainstream of the polity. Such reorga- in post-Franco democratic politics. Among nization of political rules and institutions those who would span both authoritarian requires both an elite decision-making phase and democratic politics were Manuel Fraga and an implementation phase. The decision- Iribarne, a minister under Franco and the making phase is the constitution-making leader of the Popular Alliance, a right-wing process itself, during which the constitution party founded in 1976, and Adolfo Suarez, a makers hammer out the shape of the docu- Franco bureaucrat and the first democrati- ment. The implementation phase follows the cally elected prime minister of post-Franco approval and adoption of the new constitu- Spain. tion and consists of the practical translation As Franco grew older, even he realized of constitutional theory into political action. the need for some reform. His ideas of re- form, however, were intended to perpetu- ate the system he created, not change it. In Preconditions to Constitution Making Linz’s terminology, an authoritarian regime

4 is one that has ill-defined limits. Franco’s ill- A Brief Review of Franco’s Record on Reform defined limits were embodied in his Leyes ©Francisco Copyright Franco y Bahamonde and by his min the- Fundamentales, Endowment or Fundamental Laws. of Six isters first recognized the need to institute of these laws were promulgated over a pe- economic reforms in the early 1950s, when riod of twenty years. Franco tried to impose the consequences United of Franco’s post–civilStates war a quasi-constitutionalInstitute structure of onPeace these un- policies of economic autarky and isolation- related laws in 1967 by passing the Seventh ism proved too costly. While such policies Fundamental Law. He also sought to cloak recognized the need to improve Spain’s then- his system with democratic legitimacy by desperate economic conditions, they were designating his system one of “organic de- initiated solely at the governmental level and mocracy.” The result, as one author has aptly were not prompted by widespread or well- put it, was one of “façade democracy.”5 organized sociopolitical pressures. Important developments with a profound Over the next decade, from the mid- impact on the demise of the authoritar- 1950s to the mid-1960s, some pluralization ian system followed Franco’s 1967 reforms. evolved through the formation of illegal la- When Franco designated Prince Juan Carlos bor movements and political, student, and de Borbon y Borbon his successor as head of liberal Catholic groups. The authoritarian state and Admiral his regime, especially in the area of labor pol- first head of in 1973—until then Framing the State in Times of Transition 419

Franco had held both titles—he did not sus- legal opposition,” which includes groups that pect that he had planted the crucial seeds for the authoritarian regime officially bans or a legal transition to democracy. Franco had persecutes and which, in authoritarian Spain, personally supervised the education and rear- included the communist and socialist parties ing of the prince and trusted him implicitly and their respective labor unions, the Comi- as an ideal successor. The future king, how- siones Obreras (Workers Commissions, or ever, turned out to be the opposite of Franco’s CCOO) and the Union General del Trabajo dreams: a man profoundly dedicated to de- (General Workers Union, or UGT).7 mocracy. Terrorism thwarted Franco’s plans How does an authoritarian regime react for Carrero Blanco, who was assassinated by to such social and political pluralization? the Basque terrorist organization Euzkadi ta Can it stem the tide of social demand for Azkatasuna (ETA) in 1973, six months after reform? Or does it try to satisfy some of becoming prime minister. Carrero Blanco’s these demands? The regime has several op- death was a severe blow to Franco’s plans; tions. It can refuse to recognize pluralization he had been one of Franco’s most loyal and and choose to suppress it actively. It can also hard-line supporters, a man who would have ignore the demands by neither suppressing stopped at very little to maintain authoritari- nor responding to them. The regime may re- anism in Spain. His death left the doors for act, however, by liberalizing specific policies leadership succession for the post of head of without implementing general reform or of- government wide open. ficially recognizing social or political groups. Finally, the authoritarian regime may do the

6 unexpected and implement an overall policy Sociopolitical Preconditions for Democratization of reform and democratization. In the latter In Spain, a phenomenon best described as years of his rule, Franco made a somewhat the pluralization of society had begun under feeble attempt at the third option of piece- Franco’s regime some years before his death. meal reform. , the first Using Juan Linz’s typology of oppositions to prime minister of the post-Franco era, tried and under an authoritarian regime, one can to maintain this course. King Juan Carlos, distinguish between opponents within and however, took the first decisive step toward © Copyrightoutside of the system. In doing by so, one the comes Endowmentgeneralized reform and democratization of up with a “semiopposition”: “groups that are when he dismissed Arias Navarro and ap- not dominant or represented in the govern- pointed Adolfo Suarez as prime minister. theing groupUnited but are willing States to participate in Institute of Peace power without fundamentally challenging Post-Franco Reform Attempts, Failures, the regime.” The monarchist Carlists and the 8 far-right political quasi-party Fuerza Nueva and Successes () were among these groups in Franco died in November 1975; Arias an- Spain. Linz also distinguishes an “a legal op- nounced a program of political reform on position which aims at basic change in the January 28, 1976. The reform package in- regime and its political institutions and to a cluded small concessions to allow most po- large extent basic change in the social and litical groups, except the communists, to hold economic structure.” Many such groups ex- private political meetings. He also made some isted in Spain by the early 1970s. Among minor changes to the composition of Spain’s these were university student groups, liberal parliament, the Cortes. He did nothing to clergy, and informal prodemocratic political change the status of the Sindicato Vertical, groups. Finally, Linz also differentiates an “il- the official and only labor union. This reform 420 Andrea Bonime-Blanc

Table 15.1 Results of the 1976 Referendum Total electoral Number Votes Blank Voided census of votes Votes for against Abstentions ballots 22.6 million 17.6 16.6 450,102 22,270 or 523,457 52,823 million million (2.6 percent (0.12 percent (3.0 percent (0.3 percent (77.72 (94.2 of voters) of voters) of voters) of voters) percent of percent electorate) of voters) Source: Bonime-Blanc, Spain’s Transition, p. 26.

package was met with general disappoint- ism. This reform package was submitted to a ment throughout Spanish political circles. popular referendum in December 1976. The After only a few months of Arias Navarro’s results, as Table 15.1 demonstrates, over- halfhearted reform, King Juan Carlos dis- whelmingly favored the new law. The signifi- missed him and chose Adolfo Suarez, a rela- cance of this double-edged law was that it tive unknown, to succeed him. Together, the allowed for the beginning of a balanced tran- king and Suarez would become the major sitional period, which effectively neutralized engineers of Spain’s transition to democracy. the political extremes (see Table 15.1). In September 1976, Suarez presented what In 1977, Suarez undertook further re- would become the first quasi-democratic re- forms, the most significant of which were the form package for Spain. Cleverly disguising elaboration of an electoral law, the schedul- it as the Eighth Fundamental Law, he sub- ing of elections, the legalization of political titled it “Ley para la Reforma Politica” (law parties, a broader amnesty for political pris- for political reform). The law was the result oners, and a preliminary recognition of some of a broad political discourse between gov- regional demands from the Basque Country ernment and opposition politicians over a and Catalonia. These events culminated in period of months. Among its most impor- the first free in over four tant provisions were changes in authoritarian decades, on June 15, 1977. ©institutions. Copyright The Cortes was toby be thedemoc- Suarez,Endowment the king, and the political oppoof- ratized, becoming a bicameral body with a sition had achieved a new form of politi- lower house, or , with cal engagement in Spain: They successfully 350the directly United elected members, States and a upper implemented Institute a peaceful turningof Peace point to- house, or Senate, with 207 members, some of ward democratization by dialogue, compro- them appointed by the king. The monarchy mise, principle, and action. They used the would retain most powers that Franco con- old rules to implement radical yet peaceful ferred upon it. The king would nominate the change. They used—and abused—Franco’s prime minister, appoint one fifth of the Sen- framework of fundamental laws to break ate, and submit political questions to national out of the authoritarian system legally. Si- referendum; he could also dissolve the Cortes multaneously, they used democratic devices, and call for new elections at will. Key provi- such as elections and freedom of the press, sions of the law also included statements of to usher in democracy. This process of com- democratic principles, affirming popular sov- bining the illusion of authoritarian legality ereignty, the supremacy of law, the inviolabil- with the reality of democratic practice with- ity of fundamental rights, universal suffrage, out risking stability may best be described as and implicit recognition of political plural- autoruptura.9 Framing the State in Times of Transition 421

The International Background erally to move closer to the center to make International factors also were crucial in the political changes that were taking place bringing about change. The Spanish popu- evolve into a more democratic and free soci- lation and its leaders, especially in the busi- etal paradigm. ness community, felt an increasing need and Thus, the coming together of various key desire to become integrated into European factors over time—long-term pluralization, economic structures. For their part, European foreign influence, piecemeal authoritarian re- Economic Community and North Atlantic forms, and the potential for serious and per- Treaty Organization nations applied some- haps violent civil conflicts—provided com- times subtle and other times direct pressure pelling reasons for the authoritarian elite to on Spain to integrate into Western economic consider and even embrace dramatic political and military structures. Other foreign influ- change. If certain key authoritarian leaders ences—more subtle at first, but later fairly had not favored democratization in and of blatant—had a cumulative effect on Spain, itself, other, perhaps more violent, forms of its youth, and other sectors over a longer political change could have followed Franco’s period of time. These influences took the death. The elite might have attempted to various forms of tourism, newspapers, maga- continue authoritarianism. Mounting social zines, music, radio, and other media (despite tensions would be met by severe repression, censorship); foreign economic investment; which, in turn, could fuel a military coup, and the return of immigrant workers from revolution, or civil war. The results in Spain, northern Europe. Over time, all these influ- however, were a peaceful transition to de- ences had a major effect on modernizing as- mocracy, albeit with a very elaborate, intense, pects of Spanish life as well as creating a set and prolonged constitution-making process. of broader and greater expectations among key sectors of Spanish society, especially The Constitution-Making Process: among university students, informal political Theory, Participants, and Phases groups, and businesspeople. Theory10 © CopyrightConflict and Conflict Resolution by the EndowmentA constitution-making process is oneof of the In Spain at the time of Franco’s death and most intense undertakings of a transition to the beginning of the country’s transition to democracy. No political group, party, or fig- thedemocracy, United conflict or potential States conflict cen- Instituteure can fully avoid personal of orPeace ideological in- tered on the following issues: regional au- volvement in the issues raised during such a tonomy; regional secessionism; military dis- period. Everyone—politicians and the pub- affection; the role of the ; lic—knows that a constitution legitimizes a left-wing disaffection (communists, social- democracy. It is the democratic prerequisite ists, trade unions); and right-wing disaf­ without which no democracy fully exists. fection (Francoists, Falangists, monarchists). Constitution making is at once the most How did these issues fare under the politi- varied and the most concentrated form of cal change taking place? Except for a very political activity during a regime transition. small yet vocal minority, the vast majority of In it, political maneuvering, bargaining, and people concerned with these issues chose to negotiating take place, and the political po- play ball and participate in the process rather sitions, agreements, and disagreements of than abstain from or throw up obstacles to groups and leaders come to the fore. How it. All parties appeared to be willing gen- the constitution makers handle these issues 422 Andrea Bonime-Blanc

may tell us crucial things about the transi- lems are often left unresolved or resolved tion and the regime it leads up to. The dis- irresponsibly. Agreements are difficult to crepancy between the words agreed to in reach, and if reached, frequently exclude the the constitution and the political reality views of one or more major political parties. that emerges may point to potentially seri- The resulting constitutional text potentially ous future conflicts. The general character of threatens the stability of the new political both the process and the outcome may reveal system. Such a dissensually created consti- clues about the regime’s potential for stabil- tution contains solutions satisfactory only ity or instability. to the dominant political force. Spain in the If a constitution is a set of norms and exemplified this type of constitution- principles limiting political power and pro- making process. tecting individual rights, what is constitu- Stillborn constitution making fails even tion making? It is a policy-making process in before approval and implementation of the which political elites decide on the limits and document. An example of such a case was the practices of the new government and regime stillborn French constitution rejected by the (the political formula) and on the rights and French electorate on May 5, 1946. Polarized duties of its citizens (the sociogovernmental political coalitions contributed to the unac- formula). Constitution making at its best is a ceptable constitutional results of that process. comprehensive attempt at social and politi- The French constitution makers regrouped cal problem solving and conflict resolution. and drafted a second constitution, which the During a transition to democracy, it consists electorate accepted on October 13, 1946.11 of a momentous set of decisions that may Immediately preceding a constitution- very well affect the viability of the emerging making process, existing political elites must regime. The form that constitution making consider and perhaps agree upon an agenda takes may also reveal the shape of future do- for political action. Setting such an agenda mestic political relations. means recognizing and addressing the cru- Three types of constitution making may cial national problems of the day and then be distinguished: the consensual, the dis­ including some of them in constitutional sensual, and the stillborn. Consensual con- talks. It also means prioritizing these issues ©stitution Copyright making takes place when by most the if properly, Endowment giving the most urgent ones prece of- not all major political groups participate in dence over the less critical ones. If it is inap- drafting the constitution. Agreements are propriate to include a particular issue in the reachedthe through United compromise, avoidingStates dog- constitutional Institute talks or in the of resulting Peace consti- matic solutions, and upholding the notion of tution, suitable arrangements must be made political responsibility throughout the pro- for the extra- or postconstitutional handling cess. Because of this compromise, the consti- of the issue. tutional text often contains ambiguity. While

this ambiguity often irritates one or more 12 political parties, none of them fully opposes The Participants: From One Party to Hundreds the entire text and most of them support it. Although there was a wide variety of illegal Spain in the 1970s is a prime example of this and extralegal political groups in Spain at the kind of constitution-making process. time of Franco’s death, the only legal party Dissensual constitution making is a pro- in the country was Franco’s official party, the cess in which not all political actors partici- forty-year old Movimiento Nacional (Na- pate, dogmatic solutions prevail, and prob- tional Movement). The authoritarian rather Framing the State in Times of Transition 423

Table 15.2 Spanish National Elections, 1977 Percentage Party or coalition of votes Number of seats Union del Centro Democratico 34.7 165 Partido Socialista Espanol Obrero 29.2 118 Partido Comunista Espanol 9.2 20 Alianza Popular 8.4 16 Convergencia Catalana 4.0 13 Partido Nacional Vasco 2.0 8 Other parties 13.0 10 Note: Information from various periodical sources and the Central Electoral Board as reported in El Pais and ABC, June and July 1977.

than totalitarian quality of Franco’s rule had by the government. While blatant abuses of allowed for a semblance of semipluralism their relative position of power were not evi- within that party, with moderate elite con- dent, clearly the prime minister’s party, the flict taking place within its ranks. UCD, had greater access and influence than Shortly after Franco’s death in November did the other parties. 1975, more than two hundred groups came Table 15.2 shows the election results. To out of the woodwork claiming to be politi- no one’s surprise, the UCD received most of cal parties. Among these were associations the votes (35 percent of the total popular vote) historically recognized as parties—such as and seats in the Cortes (165 out of 350). Al- the communists (Partido Comunista Espa- though not a majority, the result allowed Sua-­ ñol, or PCE) and socialists (Partido Social- rez to form a through ista Obrero Espanol, or PSOE)—and em- a coalition with other centrist and regional bryonic party forms that would compete as parties. Closely trailing the UCD with 29 real parties for the first time in June 1977. percent of the popular vote was the PSOE, Among the newly born parties were the which received 118 seats in the Cortes. Both Alianza Popular (AP) and Union del Centro parties on the extremes—the rightist AP and © CopyrightDemocratico (UCD). by the Endowmentthe leftist PCE—had disappointing of results. The Spanish political picture was very The AP received 8 percent of the vote and 16 diverse, with parties on the far right, right, seats, and the PCE received 9 percent of the thecenter-right, United center, center-left, States left, and far Institutevote and 20 seats (see of Table Peace15.2). left. Emerging at this time were also key Although the results were not unexpected new democratic leaders, among them Fe- and no major improprieties were evident, lipe Gonzalez, new leader of the PSOE and one of the major issues emerging from the future in the 1980s election was the fairness of the electoral and 1990s, and Santiago Carrillo, seasoned system—mainly, the dubious proportion- leader of the communists in exile and the ality of the new system, tailored after the newly legalized PCE. d’Hondt system. Several technicalities fa- The June 15, 1977, elections were preceded vored the party with both the most votes and by a short three-week campaign. The UCD’s the most centrist or moderate position, that appeal increased over this period, while other is, the UCD. Among these favorable techni- parties had little time to organize or get ex- calities was that each province (50) received posure on television or radio, still controlled two senators regardless of proportionality. 424 Andrea Bonime-Blanc

This allowed for equal representation from form of constitution making is through the both rural and urban centers, the latter being creation of a constituent assembly. In Spain, more densely populated and liberal. Mem- it was not clear at the outset which of these bers of the lower house were chosen through paths would be taken. In the period leading proportional representation. Each province, up to the June 15, 1977, elections, it was un- however, no matter how small or sparsely clear to the electorate whether the election populated, received a minimum of three rep- results would yield a regularly elected Cor- resentatives. Thus representation once again tes or an extraordinarily created constituent favored the inland, rural, and conservative assembly. There was division over this issue Castilian provinces.13 The electoral bottom among the political parties, with liberal and line spoke for itself. With 34.7 percent of left-leaning parties favoring the constituent the vote, the UCD received 47.1 percent of assembly option and the center-right and the seats; with 29.2 percent of the vote, favoring a regularly elected Cortes. The PSOE received 33.7 percent of the seats; latter view prevailed. with 8.4 percent of the vote, the AP received The next important question involved 4.6 percent of the seats; and with 9.2 percent who would write the first draft of the con- of the vote, the PCE received 5.7 percent of stitution. Would the government initiate the seats. the draft or would this job be the exclusive domain of the legislature? After some pres-

14 sure from the PSOE, the government agreed The Formal Phases of Constitution Making to allow for a parliamentary process. This A handful of critical decisions need to be promise was later broken, but the decision made before a constitution-making process allowed for the momentum of the process can begin. Among the most important are: to proceed uninterrupted and peacefully. By How do the transitionary elites decide which late July 1977, it was clear that the winning constitution-making route to take? What coalition’s strength in the Cortes would dic- entity initiates the first draft? Should the tate the shape of the process; it also trans- body be elected or appointed? Should it be lated directly into committee representation elected as part of a general election or as a throughout the process. ©constituent Copyright assembly strictly tasked by to draft the ShortlyEndowment before the beginning of of the a constitution? ­constitution-making process, the parties all There are three basic routes that can be announced constitutional platforms or po­ takenthe to constitutionUnited making. TheStates caretaker sitions. Institute Felipe Gonzalez ofof the PSOE Peace urged government, under the aegis of the executive the need for a “compacted constitution.” branch, can appoint a commission of experts Santiago Carrillo of the PCE suggested a to draft the constitution. Once written, the “government of national democratic concen- document can be submitted to a national ref- tration.” Leopoldo Calvo Sotelo of the UCD erendum. Another option involves electing a emphasized the three immediate objectives body, such as a constituent assembly, with of “a constitution, autonomies and economic the sole mandate of writing a constitution. measures.” Fraga Iribarne of the AP was not Finally, the caretaker government can call shy in professing his “loyalty to the past.” for general elections (governed by tempo- The Catalan representative, Jordi Pujol, em- rary electoral laws) for a new legislature that, phasized the paramount importance of re- in addition to its general duties, will draft a gional autonomies. Finally, Xabier Arzallus, constitution. Arguably the most democratic the Basque spokesman, stressed the need for Framing the State in Times of Transition 425

the “Basque Country [to] recover its politi- deputies voted for it, 2 against it, and 14 cal personality.”15 After these initial declara- abstained. tions were made, the parties worked out a timetable and a set of rules for elaborating the constitution. After much haggling and Phase Four: Senate Constitutional Committee maneuvering, the parliamentarians finally From August to September 1978, an intense agreed that the constitution making should review took place within the Senate consti- occur in seven phases. tutional committee, the first senatorial body to deal with the constitutional draft. Over 1,250 amendments were considered. Their Phase One: Congressional Constitutional work ended in September when they turned Subcommittee over the draft to the full senate. The initial phase was perhaps the most im- portant. In it, the framework of the new con- stitution was created, and seven of the most Phase Five: Senate Approval prominent political leaders participated. The Lasting less than two weeks, this formal congressional constitutional subcommittee phase encountered some difficulties but was comprised of three UCD representatives ended with an approved Senate version of and one representative each from the PSOE, the constitutional draft on October 5, 1978. AP, PCE, and Catalan Coalition. This group worked in strict secrecy, but several months into their labors, press leaks occurred, fol- Phase Six: Joint Constitutional Committee lowed by intense public debate. The subcom- A sixth phase was necessary to reconcile the mittee produced the Ante-Proyecto, or first congressional and senatorial versions of the draft of the constitution, on April 10, 1978. constitutional draft. Composed of a group of eleven members drawn from both houses, their talks were conducted in secret and ef- Phase Two: Congressional Constitutional ficiently. After two intense weeks, their ap- Committee proved text became the Spanish constitution © CopyrightDuring this phase, which by ran from the May Endowmentof 1978. of to June 1978, the thirty-six members of the Congressional Committee on Constitu- thetional United Affairs and Public States Liberties studied InstitutePhase Seven: National Approvalof Peace the preliminary draft, reviewed countless Both houses overwhelmingly approved the proposed amendments, and came up with constitution on October 31, 1978. After their version of the new text: the Proyecto an intense political campaign, dominated Constitucional. by proconstitutional forces but not entirely free of anticonstitutional and proabstention interests, the Spanish people enthusiasti- Phase Three: The Congressional Approval Phase cally approved the constitution in a national In early July 1978, the Proyecto Constitu- referendum held on December 6, 1978 (see cional was presented to the full Congress of Table 15.3). Deputies. Another month of speeches and Of a total electorate of approximately 26 debates followed, culminating in an over- million, almost 18 million, or 67 percent, cast whelming vote in favor of the draft: 258 a vote. Of those who voted, an overwhelming 426 Andrea Bonime-Blanc

Table 15.3 Results of Spain’s Constitutional Referendum, December 6, 1978 Percentage Percentage of Voted Number of votes of votes cast electorate Yes 15,706,078 87.87 58.97 No 1,400,505 7.83 5.25 Blank 632,902 3.55 2.37 Void 133,786 0.75 0.50 Source: Bonime-Blanc, Spain’s Transition, p. 42. The total electorate in Spain at the time consisted of over 26 million voters, with 67 percent casting a vote at the referendum.

majority—87 percent—voted in favor of the lowing: the relative openness or secrecy of constitution, while 8 percent rejected it and the process; the parliamentary or extraparlia- the remainder cast blank or voided ballots.16 mentary nature of discussions (i.e., including King Juan Carlos ratified and sanctioned the nonparliamentary elites); the accommodat- new fundamental democratic law of the land ing versus confrontational nature of debates; on December 27, 1978, in a joint session of the protracted or swift nature of discussions; the Cortes. The Spanish constitution-making and the breadth or narrowness of particular process had lasted a total of eighteen months issues. When several of these factors change and resulted in a text containing more than discernibly, it is possible to distinguish a new 160 hotly debated articles. The Spanish phase emerging (see Table 15.4). constitution-making process had become Thus, the following six political phases of one of the lengthiest, most elaborate, and ul- constitution making can be distinguished in timately successful of the twentieth century Spain’s example. up until that point.

Phase One: Consensual Agenda Setting The Political Phases of Constitution Making: © Copyright by17 theThis Endowment phase lasted from August to November of Coalitional Strategies and Political Tactics 1977. It was characterized by largely secret By examining the relative political strength parliamentary discussions, carried out in a ofthe each political United party and the variousStates coali- deliberate, Institute painstaking, butof largely Peace consen- tional strategies and tactics deployed during sual manner. The principal task was to iden- the constitution-making process, a somewhat tify and prioritize the most crucial issues that more analytical and useful view of the process the constitution should address and hopefully emerges. Unlike analyzing the prescribed resolve. The core issues for the constitution technical phases of constitution making, makers included the parameters of the new examining the political phases of constitu- political system, the territorial organization tion making captures the distinct coalitional of Spain, the guarantee of fundamental po- maneuvers that took place. By examining the litical freedoms, and the elimination or apo- political phases, one gleans insights into the liticization of Franco’s political institutions. overall nature of the process and why it suc- The dominant coalition of this period— ceeded in Spain. The factors to be considered and the entire constitution-making process— in this analysis of political phases are the fol- emerged at this time. The coalition included Framing the State in Times of Transition 427

Table 15.4 Coalitional Strategies in the Cortes during the Constitution-Making Process Other unsuccessful Noncoalesced Political phase Dominant coalition coalition(s) parties Consensual agenda- Consensual Coalition PSOE/MC/PCE PNV setting phase and UCD/AP publicizing and mobilizing phase Dissensual UCD/AP PNV precongressional UCD/MC/PCE PSOE phase Consensual Consensual Coalition PSOE/MC/PCE PNV parliamentary phase UCD/AP (+ PNV) AP Constrained Consensual Coalition PSOE/MC/PCE PNV parliamentary phase PSOE/PCE/MC/PNV and (+ PNV) AP three senators appointed by the king Note: The Consensual Coalition consisted of the UCD, PSOE, PCE, and MC. Source: Bonime-Blanc, Spain’s Transition, pp. 52–53.

such diverse interests as those representing and the communists. Toward the end of this (the PSOE), the center-right (the pe­riod—March 1978—the debate became UCD), the far left (the PCE), and the regions even more antagonistic, although it had not (the MC). It came to be known as the Con- yet succumbed to full-scale dissensual dis- sensual Coalition, and while it did not pre- course. However, that was about to change. vail at all stages of the constitution-making process, it did become the dominant political force behind the constitution-making process Phase Three: Dissensual Precongressional and outcome in Spain. What seemed to be a trend toward consen- © Copyright by the Endowmentsus abruptly changed. A prominent of member of the PSOE, Gregorio Peces-Barba, noisily Phase Two: Publicizing and Mobilizing withdrew from the proceedings, accusing the theThis United phase began with States the leaking to the InstituteUCD of breaking a numberof Peace of key compro- press of the first draft constitution, which mises. Simultaneously, a large segment of Sua- blew the cover under which the constitution rez’s cabinet resigned and a new, distinctly makers had been secretly operating. An in- more conservative group of ministers was ap- tense public debate followed in all quarters. pointed. The press construed these changes as Even such lower-profile actors as the Catho- a turn to the right. Suarez and Felipe Gonza- lic Church and the military began to speak up. lez held a summit to restore discussion on the Other disturbing extraconstitutional events draft constitution. Further disarray developed took place during this period: large-scale within the membership of the congressional rioting and vandalism, regional demonstra- constitutional subcommittee. As one promi- tions throughout Spain, and virulent politi- nent member of the committee said at the cal debates in the Cortes between the two time, “the only consensus that exists is that extremes of the , the AP we must finish the work.”18 428 Andrea Bonime-Blanc

The largest thorn in everyone’s side was the Phase Five: Constrained Parliamentary topic of regionalism. Even with the absence The key ingredients to the changed atmo- of the socialists and with further objections sphere had to do with the Basque problem from the right-wing AP, the remainder of and the reawakening of the tensions between the constitutional committee hammered out the PSOE and UCD in the Senate. While a tenuous compromise draft. Surprisingly the Consensual Coalition never quite broke and still under protest, all members of the down during this period, its endurance was committee, including Peces-Barba, signed seriously tested, though at the end of the the proposed draft constitution. The third phase, the coalition was at its peak. The main political phase of the process was the first tensions stemmed from regional issues. The purely dissensual one. In it, a key player—the UCD introduced broad new proposals to PSOE—removed itself from participation, limit regional autonomy as set forth in the and the specter of a purely right-wing coali- congressional draft of the constitution. This tion (AP/UCD) emerged but did not fully set off a major outcry from the regional and realize itself. If it had, it could have been the PSOE forces. The logjam was cleared with harbinger of a right-leaning constitution. the unexpected help of royally appointed sen- ators, who sided with regionalists and social- Phase Four: Consensual Parliamentary ists to win the day. Tensions shifted between the PSOE and regional parties shortly there- All thirty-six members of the congressional after when Basques accused the socialists of constitutional committee made public and abandoning them. A fortuitous side effect of conscious efforts to return to consensus- the spat was to strengthen the PSOE/UCD seeking debate. By early May, they had coalition at a time when it was weak. But this reached a new plateau of mutual accom- was an important phase, as it led up to the modation and deliberation. Almost simul- approval of the entire new constitution. taneously, Felipe Gonzalez declared that the PSOE was a social rather than a Marxist socialist one. While the UCD Phase Five: Consensual Approval often threatened to take the discussions back Almost entirely dominated by accommoda- ©to a moreCopyright right-leaning slant, it stopped by short the tions Endowment and expressions of goodwill, the of ap- of that and conducted a rapprochement with proval phase consisted of four stages. The the PSOE. Concomitant with this emerg- first stage took place within the joint com- ingthe better understandingUnited between States the UCD mittee Institute of the houses, where of eleven Peace represen- and PSOE was the increasing marginaliza- tatives swiftly, secretly, and consensually put tion of the extremes, namely, the AP and the final touches on the constitutional draft. the Basques, both of which continued to es- The second stage took place on October 31, pouse more radical (although very different) 1978, when each house separately voted on views. The AP’s inflexible and the adoption of the new constitution; both the Basques’ extreme regionalism increasingly overwhelmingly supported it. The distribu- distanced them from the process. Their self- tion of the vote clearly reflected the diversity marginalization also antagonized the con- of the consensual coalition: UCD, PSOE, sensual partners, who often expressed views PCE, and MC members voted in favor of the that were sympathetic to these groups. With constitution, while members of the AP and some notable exceptions, the UCD, PSOE, Basque parties voted against or abstained. PCE, and MC formed a tenuous but steady The third stage of approval consisted of an coalition of views. intense political campaign geared toward Framing the State in Times of Transition 429

the anticipated constitutional referendum sought out by) a broad variety of academic, scheduled for December 6, 1978. Again, the religious, military, regional, and even illegal divisions between the consensual coalition political groups in their efforts to forge the partners, on the one hand, and the AP and compromise positions that eventually be- certain more extreme regional interests, on came part of the new constitution. the other hand, were clear. The fourth and Fourth, participants who were unwilling final stage of approval culminated in the ac- or unable to compromise on constitutional is- tual referendum on the constitution held on sues—some of the far-right Francoist parties December 6, 1978. A little over 67 percent of and some of the more extreme nationalistic the eligible electorate voted, with more than regional groups, for example—were margin- 87 percent of those favoring the adoption of alized and eventually ignored. The pressure the constitution (see Table 15.3). The entire to achieve consensus seemed to overwhelm constitution-making process thus ended on a and eventually diffuse the forces on the po- high note. The king signed the Spanish con- litical extremes. Even those who could have stitution of 1978 on December 27, making been construed as possible extremists—for Spain finally and officially a democracy. example, the PCE—were centripetal rather By tracking the phases of the coalitional than centrifugal forces, contributing to the dynamics in the constitution-making process, achievement of consensual solutions. one can obtain a useful analytical overview Fifth, while popular participation in the of the process. This history, in turn, yields process was never direct, the Spanish politi- lessons on how constitution making may cal atmosphere was charged and often af- succeed. In this examination of the Spanish fected the process. Demonstrations and pub- case, several important points emerge. lic expressions of opinion on the issues being First, by the standards of the time, the debated in the constitutional talks were fre- process was lengthy and sometimes tortur- quent, sometimes daily, and were voiced by a ous, often characterized by protracted nego- broad variety of political, regional, and other tiations and the possibility of a breakdown. more issue-specific groups—religious, moral, Second, secret negotiations were used often or rights-related. The public participation, as to get the talks back on track: Off-the-record well as media attention given to such public © Copyrightdiscussions took place during by some the of the Endowmentexpressions, helped to pressure the of constitu - most critical political phases of the process. tion makers to move forward on achieving These discussions, far from the limelight, solutions and compromises that would allow thehelped United the often feuding Statesparties to blow off Institutefor a new constitution of to be Peace adopted sooner steam concerning their major disagreements rather than later. and forge closer positions on some of the Sixth, the foresight and political steady most hotly debated topics of the day, such hand of most constitution makers in the as the shape of territorial regionalization, the face of adverse circumstances—some polit­- relationship of church and state, and the role ical, some involving terrorism—were per- of the military, to name a few. haps the greatest assets in the process. The Third, nonparliamentary elites were- in single most important development of the cluded in certain secret negotiations fre- constitution-making process in Spain may quently and successfully. Especially during have been the emergence of a heterogeneous the difficult dissensual phases mentioned yet pragmatic coalition: the Consensual Co- above, while the constitution-making elites alition, which represented the ’s con- were secretly discussing solutions away from senso (consensus) on a broadly based democ- media attention, they sought out (and were racy, with a constitution containing solutions 430 Andrea Bonime-Blanc

for a nation filled with social, economic, and are classic examples of this type of turning regional diversity. point.

Constitution Making and The Preconstitutional Period Democratization: Some Conclusions Spain’s experience also shows that another Comparing the Spanish case to others, one key factor in the process of democratiza- can derive several overall conclusions con- tion is understanding what happened, if any- cerning constitution making within a transi- thing, during the period immediately preced- tion to democracy.19 ing the constitution-making period—namely, whether there was limited or comprehensive preconstitutional reform. The latter took Turning Points toward Democratization place in Spain and involved the implemen- The Spanish case illustrates that there are four tation by transitionary elites of political and possible turning points toward democratiza- sociogovernmental reforms necessary for the tion from authoritarianism: ruptura, reform, proper preliminary democratic functioning autoruptura, and external defeat. The key of the state. Among the key trends that need factors determining how that turning point to occur to attain comprehensive precon- occurs are whether there is an authoritarian stitutional reform are three processes: first, decline preceding such a period and whether a process of sociopolitical legalization, in there is short-term or long-term sociopoliti- which authoritarian controls on fundamen- cal pluralization taking place in society. The tal freedoms—such as freedom of the press, turning points are defined according to the association, and speech—are lifted; second, strengths or weaknesses of these factors. a process of authoritarian illegalization, in Ruptura occurs when the opposition elite which, at a minimum, certain constraints is able to replace the authoritarian elite with and prohibitions are placed upon the most a clean, relatively quick, and potentially vio- potentially threatening authoritarian sectors, lent break with the past. Portugal in the early such as special police forces and the military; 1970s and Spain in the 1930s are examples. and third, the democratization of essential ©Reform Copyright occurs when, in the face by of grow the- preconstitutional Endowment practices, such as legalizing of ing opposition, the authoritarian elite chooses a broad spectrum of political parties, drafting gradual liberalization. The beginning of the a temporary but fair electoral law, allowing longthe Brazilian United transition to democracy,States be- open Institute campaigning, and holding of nationwidePeace ginning in the 1970s and culminating over legislative elections. a decade later, is a good example of this type of turning point. In autoruptura, the authoritarian elite The Constitution-Making Process and Outcome causes a liberalization crisis by choosing to Based on a comparison of several constitution- break with the past in the face of mounting making processes, including the Spanish case sociopolitical pluralization. This is the type of the late 1970s,20 four types of processes of turning point Spain exhibited in the mid may be distinguished. The two key factors 1970s. in determining these processes are the type Finally, an authoritarian elite’s military of coalitional strategies pursued by the con- defeat or inept handling of a military crisis stitution makers (nonideological and multi- may bring about an external defeat-turning lateral versus ideological and unilateral) and point. Germany and after World War II the mode of negotiation used in the process Framing the State in Times of Transition 431

(accommodating versus confrontational). language; a compromise guideline constitu- A matrix accounting for these two factors tion (Germany) with clear and nonideologi- yields the following results. cal provisions; and a compromise ambiguous In a consensual constitution-making constitution (Spain 1978 and Italy), contain- process, nonideological and multilateral co- ing nonideological provisions but ambiguous alitional strategies prevail among the con- language. stitution makers who pursue mostly accom- In Spain in 1978, a highly negotiated con- modating negotiating tactics. Germany and stitution contained mostly nonideological Italy in the postwar period as well as Spain language, but also ambiguity in many cases. in the 1970s exhibited this type of constitu- Such ambiguity made implementing some of tion making. the constitution’s provisions difficult in some A passively dissensual constitution- instances, as such implementation required making process consists of ideological and further political negotiation and the adop- unilateral coalitional strategies with fairly tion of further amendments and clarifying accommodating behavior. Portugal in the legislation. early 1970s exhibited this type of process. In an actively dissensual constitution- making process, ideological and unilateralist The Constitution-Making Process in constitution makers either negotiate con- Spain in the Late 1970s: Final Thoughts frontationally most of the time, or if they Spain in the late 1970s represents a shin- do not, they are unable to pursue a success- ing example of a political process leading ful process. A variant of this type of process a country from an authoritarian past into is the abovementioned stillborn process, in a solidly democratic future. Spain exhib- which no constitutional results are produced. ited a constitution-making pattern that is The constitution rejected by the French elec- best described as a consensual compromise, torate on May 5, 1946, is an example of such in which consensus politics and coalitional a stillborn constitution. In that case, polar- strategies dominated the process and the ized political groupings could not forge last- outcome—the constitution itself—exhibited ing or valid coalitions or consensus on the a compromising, nonideological quality. The © Copyrightmain issues of the day, resulting by in anotherthe Endowmentsignificance of what came to be knownof as el attempt that succeeded six months later. consenso during Spain’s constitution-making process cannot be underestimated, especially the Institutein a country with the of potential Peace to open seri- The Constitutional Outcome ous and potentially violent old wounds. Con- Depending on whether the constitution re- senso was not merely a form of negotiation; sulting from the process contains mostly it represented the coming together of very dogmatic or ideological language, on the one diverse political forces of the center-right, hand, or compromise, consensual language, left, far left, and regional. Given Spain’s so- on the other hand, and whether the lan- ciopolitical and regional composition at the guage itself is mostly ambiguous or relatively time, no other coalitional force could have clear and pragmatic, it is possible to distin- carried the weight and legitimacy that the guish four types of constitutional outcome: consensual coalition carried. a dogmatic guideline constitution (Spain Spain in the 1970s is an extraordinary ex- 1931), containing clear but ideological pro- ample of how the political will of responsible visions; a dogmatic ambiguous constitution elites, influenced strongly by the sociopolitical (Portugal), containing vague and ideological climate in the nation, can drive most of those 432 Andrea Bonime-Blanc

elites to behave broadly and responsibly in- extensive use and quotation of several sections and stead of ideologically and narrow-mindedly chapters of that book. to produce a constitution that is widely ac- 2. Juan J. Linz, “An Authoritarian Regime: Spain,” in Mass Politics, ed., Erik Allardt and Stein cepted and adaptable; it has now weathered Rokkan (New York: Free Press, 1970), p. 255. the test of more than thirty years. The way 3. Bonime-Blanc, Spain’s Transition, p. 6. the Spanish constitution makers and politi- 4. Ibid., pp. 18–20. cal elites of the late 1970s conducted them- 5. Jose Amodia, Franco’s Political Legacy: selves through the constitution-making pro- From Dictatorship to Façade Democracy (London: cess provided a microcosmic look into what Allen Lane, 1977), pp. 92–96. the future of democracy would look like, 6. Bonime-Blanc, Spain’s Transition, pp. 17–18. in what has become one of the world’s most 7. Juan J. Linz, “Opposition in and under an vibrant . Authoritarian Regime: The Case of Spain,” in Re- gimes and Oppositions, ed. Robert A. Dahl (New Ha- ven, CT: Yale University Press, 1973), pp. 171–259. Glossary of Terms 8. Bonime-Blanc, Spain’s Transition, pp. 22–26. AP — Popular Alliance/Alianza Popular 9. See discussion in this chapter. CC — Catalan Convergence/Convergencia Catalana 10. Bonime-Blanc, Spain’s Transition, pp. 11–14. CCOO — Workers Commissions/Comisiones Obreras 11. Ibid., p. 14. EE — Basque Left/Euskadi Esquerra/Euzkadiko 12. Ibid., pp. 27–31. Ezkerra 13. See Bonime-Blanc, Spain’s Transition, pp. 30– ETA — Euzkadi ta Azkatasuna 31 for more information concerning the electoral MC — Catalan Minority/Minoria Catalana system. PCE — Spanish /Partido Comu- 14. Ibid., pp. 36–40. nista Español PNV — Basque National Party/Partido Nacional 15. See El Pais and ABC, July 28, 1977, au- Vasco thor’s translation. PSOE — Spanish Socialist Workers Party/Partido 16. El Pais, December 22, 1978. Socialista Obrero Espanol 17. Bonime-Blanc, Spain’s Transition, pp. 53–64. UCD — Union of the Democratic Center/Union 18. Miguel Roca Junyent, the representative del Centro Democratico from MC. Bonime-Blanc, Spain’s Transition, p. 57. UGT — General Workers Union/Union General del 19. This section draws on the research and ©Trabajo Copyright by theinformation Endowment in chapters 7 and 8 of Bonime-Blanc, of Spain’s Transition, in which a comparative theory of transitions from authoritarianism to democracy is Notesthe United Statesset Institute forth including the cases ofof Spain inPeace the 1930s, 1. This chapter draws heavily on the- au Germany and Italy in the postwar period, and Por- thor’s book, Andrea Bonime-Blanc, Spain’s Transi- tugal in the early 1970s. Bonime-Blanc, Spain’s tion to Democracy: The Politics of Constitution Making Transition, pp. 113–61. (Boulder, CO: Westview Press, 1987), and makes 20. Ibid., pp. 113–61.

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