José Antonio Martín Pallín
17 AUG 2019 – 00:00 CEST
The Constitution has 169 articles, but listening to the “pure constitutionalists”, it seems that there are only two
The positions of those who presume to be constitutionalists have taken shape in the political language, excluding from the constitutional coverage those who seek formulas for coexistence with the independence sectors or emphasize the preeminence of economic and social rights. It is necessary to have a lot of self-confidence and large doses of arrogance to claim the exclusivism of constitutionalist essences, without even having the slightest idea of what a constitutional text means as a support for a truly democratic society. Professor Jorge de Esteban when analyzing the various functions of a Constitution reminds us that “… it cannot be a rigid corset that definitively regulates the coexistence of a people”.
The “guardians of the constitutional essences” distribute militancy cards, having no idea of the meaning of a constitutional text or the values it embodies. They remind me of the characters that José Cadalso describes in his work, Los eruditos a la violeta. He made a fierce satire of certain public figures who, despite their scarce and superficial training, because they had never read or studied anything, showed off as illustrated, repeating worn-out topics in the form of clichés. Their current definitions are academically ridiculous, but I fear they have penetrated an important part of our society and have been effective in disqualifying and dividing.
Our constitutional text has a Preamble in which the desire to establish justice, freedom, security and the common good for all is proclaimed. The Constitution is not a simple organization chart of the structure of the State in which the functions of the three classical powers, the role of the Crown and the powers of the Autonomies are regulated.
If any virtuality has a Constitution, it is to achieve, through the exercise of the fundamental rights of the person and especially freedom of expression, that citizens enjoy truthful information that allows them to form their criteria, necessarily different, to be able to participate freely in public life, electing a Parliament that reflects political pluralism.
But all these constitutional components would be merely superficial if the citizens were not guaranteed the use and enjoyment of all the rights inherent to the human being, the political and the civil ones that the pioneer countries of democracy, the United States and France, baptize as republican, in addition to the economic, social and cultural.
The “guardians of the constitutional essences”, distribute militancy cards, without having any idea of the meaning of a constitutional text
Our Constitution has 169 articles, but listening to the strident fanfare of the “pure constitutionalists”, one has the impression that there is only Article 2, which speaks of the common and indivisible homeland of all Spaniards. Lately, on the occasion of the Catalan crisis, they have discovered article 155, without stopping to think that its application is more typical of the federal states than of the autonomous states.
By not getting out of this position, they underestimate the essence of a democratic constitution. All experts in constitutional law put special emphasis on highlighting the relevance of what they call its “hard core” that must remain unchanged, if you do not want to convert the constitutional text into a norm similar to the Basic Laws or the Organic Law of the State of the dictatorship. This hard core has its origin in the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights. If they are divided into two autonomous and disconnected blocks, a constitutional anomaly occurs. The superior values of freedom, justice, equality and political pluralism are affected, whether the free exercise of freedom of expression, meeting or demonstration is reduced, or if the free development of personality is frustrated by depriving citizens of real and effective access to social and cultural and economic rights, such as education, health, housing or the guarantee of the right to a healthy environment or access to decent housing.
In the constitutional text it is possible to defend the possibility of an agreed solution for the Catalan problem and the equalization of civil rights with which is constituted the inalienable basis of the welfare state and maintain the unity of the Spanish nation. Words and concepts cannot be handled lightly. There is a risk of turning them into signs of identity that make the rich plurality that our constitutional text allows incompatible with the exclusive and authoritarian conception of those who award to themselves, exclusively, the constitutional orthodoxy.
José Antonio Martín Pallin. Lifeabogados lawyer. Emeritus magistrate of the Supreme Court. Commissioner of the International Commission of Jurists (Geneva).