We were taught that Spain's historical constitutions were "programmatic", mere statements of good intentions, whereas the 1978 Constitution is "normative": it genuinely binds every public authority. Really? When equality before the law allows exceptions for thousands of officeholders, it is fair to ask whether we changed the model or merely the packaging.
Programmatic or normative: the difference that matters
Spanish constitutional history lists six texts before the current one that scholars usually describe as "programmatic": they proclaimed ideals and rights but did not effectively bind public authorities, who could ignore them without consequence. The 1978 Constitution set out to break with that tradition. Its Article 9.1 provides that citizens and public authorities are subject to the Constitution and the rest of the legal order, and its provisions on fundamental rights are directly applicable.
That is the theory. But a constitution is not normative because a textbook says so; it is normative because it is obeyed. And the acid test is Article 14: if equality before the law is not applied equally to everyone, the text becomes, in practice, a statement of intent once again.
Europe made it clear in 2009
With the Treaty of Lisbon, in force since 2009, the Charter of Fundamental Rights of the European Union acquired the same legal value as the Treaties. Those rights include equality before the law (Article 20) and the prohibition of discrimination (Article 21). Within the so-called multilevel constitutionalism, EU law enjoys primacy and direct effect in the Member States.
It is therefore striking that neither the primacy of the Treaties nor the binding force of the Charter has been enough to correct a regime of procedural privileges that, in Spain, reaches tens of thousands of people.
1985: a journey of no return
In 1985, the Organic Law on the Judiciary extended special jurisdiction (aforamiento) to judges, magistrates and prosecutors, and nobody took the matter to the Constitutional Court. On the grounds of guaranteeing judicial independence, the judiciary became protected by a privilege that, moreover, is almost impossible for citizens to challenge:
- An appeal on grounds of unconstitutionality against a law can only be lodged by certain bodies and officeholders (Article 162 of the Constitution), never by a private individual.
- A question of unconstitutionality can only be raised by a judge or court (Article 163), that is, by the very group that benefits from the privilege.
The outcome is perverse: those who enjoy the privilege are also those who decide whether it is questioned. And for forty years hardly anyone seems to have noticed. Ignorance, or fear?
Five symptoms of a programmatic constitution
A country that does not respect equality before the law risks pushing its constitution back into programmatic territory. These are the symptoms:
- Lack of effective application of fundamental rights. If they are not applied equally to all, the supreme law becomes an aspiration.
- Absence of effective judicial review. If the courts cannot or will not correct privileges, citizens are left defenceless against abuse of power.
- Legalised or tolerated discrimination. Laws that favour certain groups drain the Constitution of normative value and destroy trust in the system.
- Rights limited to a few. When certain safeguards are available only to some, the universality of rights is a fiction.
- No channels for complaint and redress. Without accessible and effective remedies to challenge inequality, the Constitution remains merely declaratory.
A constitution that does not make everyone equal before the law is not a supreme law: it is an election manifesto with the rank of a fundamental law.
A responsibility that is also multilevel
Responsibility is not only national. The legislature extended the privileges, the executive has never pushed for their abolition and the judiciary benefits from them. But European institutions also bear their share. In its annual Rule of Law Reports, the European Commission has repeatedly expressed concern about the state of justice in Spain, without going any further. And, as far as we know, no Spanish court has referred a preliminary question to the Court of Justice of the European Union on whether special jurisdiction is compatible with the Charter.
That is why we are working to bring that question to Luxembourg. We ask you to join us: get informed, spread the word and demand that the Constitution becomes again what it promised to be, a law that binds everyone, starting with those who hold power.