December 6, 2021
Nicolás Sartorius in a photograph from a photo archive. / EPC
Nicolás Sartorius (San Sebastián, 1938) was in the midst of the constitutional pact and today he asks to lay the foundations for its reform. His anti-Franco militancy led him to spend six years in prison, and he was the leader of the PCE during the Transition, when the party was legalized and blessed the Magna Carta as a sign of consensus. The journalist and lawyer, current president of the Advisory Council of the Fundación Alternativas, receives EL PERIÓDICO DE ESPAÑA at the headquarters, where he advocates “reforming the Constitution as the best way to defend it” against attempts by the right to “appropriate” it.
Sartorius, who was summoned to consultations by Santiago Carrillo when the leader of the Communist Party put the new democratic framework to the vote, also reproaches a sector of the left for having given up in the defense of the Magna Carta and sees in Yolanda Díaz an opportunity to establish a project of clear constitutional convictions and far from the right of self-determination.
The Constitution is 43 years old, has it aged well?
I think so. I have always said that it is a great Constitution, that it needs, like all things, to catch up, but the base is very good.
Certain sectors of the left have considered that the Constitution contains Francoist residues. What would you say to all those voices?
Well, the truth is that I know the Constitution very well and I do not see Franco elements, I do not know what Franco elements are referred to.
Podemos, for example, was born challenging the Constitution because they considered that it rooted with the previous regime, with the Franco dictatorship, with vestiges such as the monarchy.
Yes, but now Podemos brings it out as a very good thing and almost as an electoral program. Because the monarchy that the Constitution includes is a constitutional, parliamentary monarchy, without real powers and where the head of state is a king, as in England, in Sweden, Norway, Denmark, in Holland, which cannot be said to be undemocratic countries. The current monarchy does not inherit the powers that the dictator had, at all.
The Constitution is a complete break with the Franco regime. For the first time, and not all European constitutions have it, there is a whole series of rights that are recognized as fundamental rights, including the right to strike. Trade unions, for example, are placed at the same level as the parties, at the same level as the large institutions of the State. It establishes a very considerable political decentralization regime, which is the State of Autonomies. But it is a system that has nothing to do with Francoism. It is the opposite of Francoism. There is nothing pro-Franco in that Constitution. That’s a lie. The impression is that the Constitution has not been read.
What would you change about the current Constitution?
In Title VIII, I think it would be good to go to a more federal system, because the Spanish is a Constitution that the doctrine considers quasi federal. But you cannot be a quasi-something your whole life, you have to be that something. Federal Spain is the culmination of the autonomous state. That is, it is not changing, it is not transforming, it is simply having a Senate that is really a territorial chamber or clarifying the powers. That is one thing, for example, that we Federalists have defended many times. And it is necessary to clarify in the Constitution which are the exclusive competences of the State and those that are not exclusive to the State that are of the autonomous communities, always making it clear that the central State intervenes in matters related to the Welfare State -education, health, pensions, etc-. The proof that it is necessary is that the Constitutional Court has plenty of appeals on the issue of who has the power to do things.
It would also be good to introduce some fundamental rights that could not be included and that now there would be conditions for them to be included, such as health, which appears as a declarative right but cannot be requested before a judge. In 78, only education got involved, but not health. Here, for example, could also be pensions.
Do you see a constitutional reform possible despite the strong political division?
At this moment, I believe that there is no possibility, the best conditions are not in place to modify the Constitution, because I am afraid that the right wing is not in favor of it and sufficient majorities are needed. But that does not mean that it is not necessary to work in that direction. Consensuses are not starting points, they are arrival points. It is necessary to create the conditions, the complicities and the state of opinion that it would be good to reform some issues of the current Constitution, especially on the territorial issue, to make it more federal.
Would the nationalist parties have to give the go-ahead to this reform?
It would have to have at least the same consensus as the current Constitution. In other words, without a doubt the nationalist parties would have to participate, right? Another thing is that they are for it, that I do not know. But the good thing about the current Spanish Constitution is that it is a constitution of consensus that we were able to make valid for the right, for the left, for the center, for the nationalists of that time. The PNV abstained but, for example, Convergència i Unió voted in favor. You have to look for those very broad consensuses, because the constitutions require them, but you have to work on them.
The nationalist parties claim the right of self-determination, even Podemos defended at the time to include the right to decide. Is this compatible with the Constitution?
The right of self-determination is not recognized in the Spanish Constitution nor is it recognized in any European Constitution. It is not recognized anywhere and not in the United Nations except in situations of oppression, dictatorships, situations of colonialism, etc. I do not believe that the Basque Country or Catalonia are colonies of Spain. This question is not recognized at all. Not even that which has been sought of ‘the right to decide’. The right of self-determination is also a reactionary right. It is a right that only benefits the right and the nationalist right, and which today, with globalization and in the European Union, is absolutely contrary to the interests of the majority. Imagine a Europe that already with 27 is complicated, if other nations began to emerge, with the difficulties that already exist to measure itself with the United States or with China.
After the King Emeritus scandals, don’t you think that the role of the monarchy within the Constitution should be reduced?
I am not in favor at this time of raising the issue of monarchy or republic. I think it should be left that way. The only thing I would change is the issue of inviolability. I believe that the inviolability of the king has to be in the acts derived from the head of the State, but not from his personal acts. By that rule of thumb, King Juan Carlos I would not enjoy that inviolability and would have to face justice. Well, criminal liability is not retroactive. In other words, in the event that that was changed, it would have nothing to do with Juan Carlos I; it would have to be for the future. I think it would be good for the institution, even for the system, to change something that is almost medieval. To think that a King, head of State, commits crimes in the private sphere and that he has no responsibility seems absurd to me. That is the only thing I would change.
In any case, there is no consensus with the right to do that. Why do you think the right wing is not opening up to a constitutional reform at this time?
I’m going to say something a little ironic: because they are not in power. Because maybe if they were, they would address it. The right is working to wear down the government. There is no climate for the PSOE and PP to sit down to talk about constitutional reform, if they don’t even agree to renew the General Council of the Judiciary. Today the right wing is in a fight to erode the government in whatever way it can. I do not see that there are conditions for a reform of the Constitution. What can be done is to work. In lines that go in the direction of a more federal operation of Spain, for example, all the work that has been done in the conferences of presidents has been very interesting. The work that sectorial conferences do, for example. The entire fight against the pandemic has been a form of federal co-government.
Do you think that if the PSOE were in opposition it would be easier?
Well, I do not represent the PSOE. I do not know if there would be more possibilities, but surely the position of the PP would be different from today. In my opinion, the PP has a wrong position when saying ‘the Constitution is not touched’ thinking that this is how the Constitution is defended well, when I think that the best way to defend a Constitution is by introducing improvements. For example, the German Constitution has had a lot of reforms and is the same. It is as if you have a house that ages, what is better, leave it as it is and end up sinking or reform it to last? I think the smartest thing to do to defend the Spanish Constitution, which I absolutely defend, is to pass it through the compulsory vehicle test from time to time.
What do you think of the term that was used at the time to refer to the Popular Party or Citizens as constitutionalist parties?
I think it is a profound error that can have very bad consequences. It is something that they have invented themselves, they have appropriated the Constitution. The Constitution belongs to everyone, since it protects everyone. Even the nationalists, who are against it. They are there thanks to the Constitution. Mr. Aragonés governs because the Spanish Constitution exists, because the autonomous statutes are born from the Constitution and they are the highest representatives of the Spanish and constitutional State in those territories. The rights have tried to appropriate the flag, the Constitution, things that belong to everyone and, by appropriating it, what they are doing is weakening it. If the Spanish Constitution were only that of PP, Citizens and Vox, it would be dead. They are doing enormous damage to the Constitution. If the constitutionalists in Catalonia were Cs and PP, there would be no constitutionalists because they are very weak there. They are doing a disservice to the Constitution. The point is that it belongs to everyone and that is its great strength.
Has the left been able to vindicate the Constitution against this?
It is evident that the Socialist Party has been very clear in its defense and the PCE in its day, in which I was a member for many years. But there has been a time when a part of the left has gotten lost and has started to let the Constitution be on the right. The one who fought for this Constitution was the left, which fought against the dictatorship to bring democracy. On the other hand, a part of the left has deviated from there and has begun to question this Constitution, which in my opinion is a great mistake, but a very serious mistake. Since this Constitution, above all, is a constitution of the left.
Now that you mention the PCE, how do you assess the candidacy of Yolanda Díaz, of that party?
Well, I have never heard her say that she is running as a PCE candidate, quite the opposite. What she wants is to open the spaces and she seems very good to me. I believe that she is a good candidate and she is doing a very positive job from the Ministry of Labor. The agreements reached between employers and unions are one of the most positive things that have been done in recent years. If in the future she shows up at the top of a great platform, then very good.
Have you ever talked about the difficulty of the left to integrate differences, do you think Yolanda Díaz will be capable?
It is good that the space to the left of the Socialist Party joins and that there is a serious, rigorous, wide offer. It is very positive. Mrs. Yolanda Díaz seems to me a great candidate and it would be very good if she could get an attractive project where some issues must be fundamental: she has to be very Europeanist, because the battles are taking place in Europe and a certain left already had its deviations when it opposed the euro. The defense of social rights must also be central and then, not to question the Constitution or address erroneous issues such as the right to decide.
The union that you founded, CCOO, is supporting Yolanda Díaz, do you think you would do well to openly support her project?
Comisiones Obreras is a huge union that has almost a million members who vote for different parties. I don’t think everyone votes for Yolanda Díaz’s party. I do not believe that the Comisiones Obreras, -it never has-, is going to call for a vote for a specific force. It is negative for a union to say that you have to vote for this or that party, because the social base on which it relies is very plural. Another thing is that the union says “we must support projects that recognize the social rights of workers,” but betting on a party is a big mistake. And I don’t think that Comisiones will commit it.