The Legal System of Spain The national government of Spain is composed of a parliamentary monarchy with a hereditary constitutional monarch as the head of state. Under the 1978 Constitution, power was centered in a bicameral legislature–the Cortes (comprising of the lower house, Congress of Deputies, and upper house, Senate). Both houses are elected by universal suffrage every four years, but the 350-member Congress of Deputies uses a proportional representation system, whereas the Senate contains 208 members elected directly as well as 49 regional representatives. The Congress of Deputies handles greater legislative power. The leader of the dominant political party in the Cortes is designated by the Prime Minister and serves as the head of government.
The Prime minister, deputy Prime Minister, and cabinet ministers together make up the Council of Ministers, the highest national executive institution with both policy-making and administrative functions. The constitution also establishes an independent judiciary. The judicial system is headed by the Supreme Court. It also includes territorial courts, regional courts, provincial courts, courts of first instance, and municipal courts. The Constitutional Court resolves constitutional questions.
The twenty-member General Council of the Judiciary appoints judges and maintains ethical standards within the legal profession. The constitution also provides for a public prosecutor and a public defender to protect both the rule of law and the rights of citizens. The regional government is a traditionally centralized, unitary state; however, the 1978 Constitution recognizes and guarantees the right to autonomy of nationalities and regions of which the state is composed. In the late 1980s, the national territory was divided among seventeen autonomous communities, each encompassing one or more previously existing provinces. Each autonomous community was governed by statute of autonomy providing for a unicameral legislative assembly elected by universal suffrage.
The assembly members select the president from their ranks. The executive and administrative power is exercised by the Council of Government, headed by the president and responsible to the assembly. The division of powers between the central government and the autonomous communities was imprecise and ambiguous in the late 1980s, but the state had an ultimate responsibility for financial matters and so could exercise a significant degree of control over autonomous community activities. Another means of control provided by a presence in each region of central government is a delegate appointed by the Council of Ministers to monitor regional activities. The provincial government remained centralized in the late 1980s.
It was headed by civil governors appointed by the Prime Minister, who are usually political appointees. The provincial government is administered by a provincial council that is elected from among the subordinate municipal council members and headed by the president. There are special provisions for the Basque provinces, the single province autonomous communities, and the Balearic and Canary Islands, as well as North African enclaves. Following the death of Francisco Franco y Bahamonde in November 1975, King Juan Carlos de Bourbon engineered a transition to democracy that resulted in the transformation of dictatorial regime into a pluralistic, parliamentary democracy. Prior to the advent of participatory democracy, there was little political involvement by the citizens. Under Franco, the Spanish society essentially depoliticized. But after forty years without elections, parties revived and proliferated in months following Franco’s death. Spain’s foreign relations were traditionally isolated from mainstream European affairs.
It was neutral in both world wars and was ostracized during the early rule of Franco because of Franco’s Fascist ties and dictatorial regime. But because of the strategic location at the western entrance to the Mediterranean, Spain was drawn into the United States orbit during the Cold War. It signed a defense agreement with the United States in 1953, and was subsequently renewed at regular intervals. Nevertheless, anti-Americanism persisted. They were also permitted to join the United Nations. Following Franco’s death in 1975, the main diplomatic goal was to establish closer ties with Western Europe and to be recognized as a West European democratic society.
It became a member of the Council of Europe in 1977, EC in 1986, and Western European Union in 1988. It had already joined the North Atlantic Treaty Organization in 1982, but the membership was controversial within Spain. Socialists initially opposed it, but ultimately it came to support limited involvement, and a public referendum in March of 1986 confirmed Spain’s membership. Other major foreign policy objectives were to increase Spanish influence in Latin America, to achieve the return of sovereignty over Gibraltar to Spain, and to serve as a bridge between Western Europe and the Arab world, in which Spain had adopted a generally pro-Arab stance. The 1978 Constitution declares that justice emanates from the people and that it is administered in the name of the king by independent judges and magistrates, who are irremovable and who are responsible and subject only to the rule of law.
The judicial system is headed by the Supreme Court, which is the country’s highest tribunal except for constitutional questions. The supreme governing and administrative body is the General Council of the Judiciary. Its primary functions are to appoint judges and to maintain ethical standards within the legal profession. The 1978 Constitution provides that twelve of this council’s twenty members are to be selected for five-year terms by judges, lawyers, and magistrates, with the remaining eight to be chosen by the Cortes. A judicial reform law that entered into force in July 1985 called for all twenty members to be chosen by the Cortes; ten by the Congress of Deputies and ten by the Senate.
The General Council of the Judiciary elects the president of the Supreme Court, who also serves on this council. In addition, there are territorial courts, regional courts, provincial courts, courts of the first instance, and municipal courts. Constitutional questions are to be resolved by a special Constitutional Court, outlined in the 1978 Constitution and in the Organic Law on the Constitutional Court that was signed into law in October 1979. This court consists of twelve judges who serve for nine-year terms. Four of these are nominated by the Congress of Deputies, four by the Senate, two by the executive branch of the government, and two by the General Council of the Judiciary. They are chosen from among jurists of recognized standing with at least fifteen years’ experience.
Once appointed, they are prohibited by the Constitution from engaging in other forms of political, administrative, professional, or commercial activity. The Organic Law on the Constitutional Court contains provisions whereby the court can expel its own members, a circumstance which appears to contradict the constitutional declaration that magistrates are irremovable. The Constitutional Court is authorized to rule on the constitutionality of laws, acts, or regulations set forth by the national or the regional parliaments. It also may rule on the constitutionality of international treaties before they are ratified, if requested to do so by the government, the Congress of Deputies, or the Senate. The Constitution further declares that individual citizens may appeal to the Constitutional Court for protection against governmental acts that violate their civil rights. Only individuals directly affected can make this appeal, called an amparo, and they can do this only after exhausting other judicial appeals.
In addition, this court has the power to preview the constitutionality of texts delineating statutes of autonomy and to settle conflicts of jurisdiction between the central and the autonomous community governments, or between the governments of two or more autonomous communities. Because many of the constitutional provisions pertaining to autonomy questions are ambiguous and sometimes contradictory, this court could play a critical role in Spain’s political and social development. The Constitution prohibits special courts and limits the jurisdiction of military courts to members of the armed services, except during a state of siege. It provides for a public prosecutor as well as for a public defender, to protect both the rule of law and the rights of citizens. A significant innovation is the provision allowing for trial by jury in criminal cases. One aspect of Spain’s limited experience of democratic politics is that its judiciary has historically tended to be more or less directly controlled by the government of the day.
Executive influence was especially widespread under the Franco regime and took a number of forms. Offences that would in most countries be considered a matter for the civilian courts fell under military jurisdiction; judges’ career chances were under direct government control. As a result, the executive’s role in the administration of justice was thorny issue facing democratic governments after 1975. The 1978 Constitution included provisions designed to ensure judicial independence. Modeled on similar arrangements in France and Italy, they envisaged creation of a General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ).
In essence, the CGPJ’s purpose was to remove from government control personnel decisions affecting the judiciary. Under the 1980 Act it had sole responsibility for all such matters, including the selection of members of the judicial service, appointment to particular posts, and promotion to higher courts. The CGPJ also has wide powers to propose changes in the organization of the judiciary and court system. It examines proposed legislation of all types, advising the government as to compatibility with judicial procedures and the Constitution. It must be consulted by the government before the latter appoints a new Attor …