June 18, 2021

Machado: “The consensus of the Constitution will never have a reform”


Santiago Muñoz Machado.

Santiago Muñoz Machado.
LP / DLP

Santiago Muñoz Machado (Pozoblanco, 1949) is a professor of Administrative Law. Director of the Royal Spanish Academy (RAE) since December 2018, he has published more than 40 books, many dedicated to reflection on the language, the Constitution of 1978, which is now 42 years old, and the history of Spain. From Madrid, he acknowledges feeling “longing” for Córdoba now that the limitations imposed by the coronavirus pandemic prevent him from going as often as he did. Now it’s just “work, work, work” and “self-confinement, self-confinement, self-confinement,” he says.

Has the Spanish Constitution withstood well the legal tensions caused by a pandemic like the one we are experiencing?

The Spanish Constitution has been little affected by the pandemic. It is a higher standard. Not many constitutional mechanisms had to be applied with the exception of Article 116, the declaration of a state of alarm. Its use, which has been the subject of some debate, some controversy whether it was necessary or not, whether it was preferable to use the state of exception or neither. I have just published an article in a legal magazine that I have entitled The Power and the Plague of 2020, especially for calling, in the way the dictionary says, “plague”, diseases that cause a lot of mortality. There I analyze what mechanisms our legal system has that allow us to address the dramatic situation we are experiencing.

Has the alarm state been used correctly?

My opinion is that it has been used correctly because the 1981 law that develops article 116 of the Constitution allows the use of the state of alarm in cases of health emergency. That was not the case before, the health emergency was never considered in our legislative history a case of disturbance of public order. It had its own regulation in health laws and was approached from the health administration itself.

We have missed more clarity and agility in the administrations to communicate and make decisions. Has the legal system conditioned the pace of government action?

If it has conditioned it, it has been self-conditioning. What is characteristic of a health emergency is that ordinary laws accept to be displaced and replaced by an exceptional legality, which is not even contemplated in the laws, but is left in the hands of the governments, central, autonomous and even, local. They will adopt the most necessary measures: not everything is regulated, it is left to the good judgment of the ruler. If there have been delays in the proceedings or delays, that is not the fault of the Constitution. The Constitution empowers legislators and the government to act in an emergency. You cannot blame, in this case, the law.

In November 2017, he coordinated a group of jurists to propose a reform of the Constitution. Would you modify the proposal now?

I have not changed my mind. The Constitution is 42 years old and needs to be tweaked. There is no legal text, least of all the Constitution, that can live eternally, perennially without changes. We have studied ours a lot and it has shown that it has some cracks, some supervening that could be better regulated and others original, defects that are from the beginning. I stand by my opinion, along with most of my constitutional or administrative colleagues. The Constitution needs to be reviewed and reformed. Another thing is the political conjunctures. We are now experiencing a fragmentation of political representation and a situation in which it is not advisable to start a process of constitutional reform. We do not have enough tranquility and the political class is very disoriented about what it wants and I believe that we will never have a constitutional reform with the consensus that existed when the Constitution was approved. That is very difficult, highly conditioned by the historical situation. It is not thinkable that we can return to a situation of absolute consensus. The Constitution must be reformed with the majorities established in Article 68, no more is needed. However, it is not advisable to open that reform process now because there is a lot of political contradiction, a lot of controversy and very little serenity.

And the autonomy system, has it worked well?

It has worked well, because they have been very constrained by the central power, which in my opinion has assumed a greater responsibility than it should. These health actions in a pandemic correspond mainly to the autonomous communities, without prejudice to the fact that there are cooperation bodies such as the Interterritorial Health Council and the powers of the State that can be used to better coordinate actions, but the bulk of health action in a case of emergency corresponds to the autonomous communities and many have backed down a little while waiting for authorizations, permits and I think they have omitted their powers. At times it has given the idea that it has been for convenience for someone else to assume responsibility, and at other times, like now, they claim what they would have had more easily before.

It is said that the RAE is stagnant, but this news is a trend, ‘trending topic’.

The Academy suffers from some very unfair criticism. She is very attentive to the news, but the procedures we have to follow to add new words to the dictionary are slow. Bear in mind that the dictionary is the most important work but not the only one. When we see words that need to be incorporated or changed in definition, we send them to America and 22 American academies see them, and the Ecuadorian and Philippine academies make observations to us, so we do a procedure from the point of view of guaranteeing that the wrong things do not get in, although at the same time we are subjected to some processing periods that are slow. But the language doesn’t change dramatically either, you don’t have to run so much.

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