Citizen Participation in Public Affairs: Spanish Law
Political Participation Rights in the Spanish Constitution
The Spanish Constitution (EC) establishes the State’s duty to promote conditions for youth to participate freely and effectively in political, social, economic, and cultural development (Art. 48 EC). This is directed to the legislator, governing the hearing of citizens in the process of drafting administrative rules (Article 105 EC). It establishes procedures, such as class action and the jury, for popular participation in the administration of justice (Art. 125 EC). It also provides mechanisms for stakeholder participation in the Social Security system or for workers in enterprises (both Art. 129 EC). These and other constitutional mechanisms of participation, as well as those established by law and other provisions at the state, regional, or local level in very different sectors, can be considered a result of the terms of Art. 9.2 CE, according to which it corresponds to the authorities “[…] to facilitate the participation of all citizens in political, economic, cultural and social life.”
According to the Constitutional Court (STC 119/1995 FJ 3), participation as a fundamental right is reserved for cases in which the people, as owners of national sovereignty (Art. 1.2 EC), are silent on matters of general application. Although the exercise of this right also includes occasions when only some of the people, constituted as an electoral body of its territory, participate (as in regional or local elections or a local or regional referendum). Only in such cases is the fundamental right of participation of Art. 23 EC exercised.
Constitutional Mechanisms for Citizen Participation
The constitutional mechanisms by which citizens can participate “directly” in public affairs are:
- a) The legislative initiative and referendum, regulated respectively by Organic Law 3/1984, on the Regulation of Popular Legislative Initiative, and Organic Law 2/1980, regulating the different kinds of referendums.
- b) The fundamental right to vote, both active (the right to vote in the various electoral procedures in which the people elect their representatives) and passive (the right of access to public office for candidates in those elections). Both are governed by Organic Law 3/1985, on the General Electoral System (LOREG).
- c) The rights of representatives to enter, stay, and serve in public office are regulated by LOREG, as well as by the regulations of the Chambers and corporations in which representatives carry out their functions.
- d) The right of citizens to access public service.
Ownership of the Right to Participate
The decision of the constituent to limit the ownership of this right to those who have the status of citizen should be complemented with other constitutional provisions governing majority age and the rights of foreigners, and with the constitutional jurisprudence on the impossibility of legal persons holding a fundamental right to participate.
- a) The fundamental right to participate in LOREG is linked to majority age, which Art. 12 EC sets at 18.
- b) Art. 13.2 EC states in its first paragraph that “only Spanish citizens shall enjoy the rights recognized in Article 23.” The same Art. 13.2 EC provides an exception to this inability, provided that certain requirements are met. These requirements are as follows: first, the extension of the fundamental right of participation to foreigners can be done only in a particular election, municipal elections; second, it is required for the operation of the Act or the approval of an international treaty; and third, the measure can only be made according to criteria of reciprocity. This means that Spanish residents in a foreign country whose national law or treaty extends the right of participation can exercise this right there.
- c) According to the Constitutional Court (from STC 5/1983), only citizens and, if the conditions which have just been studied are met, foreigners, but not legal persons, may hold the fundamental right of participation.
Right of Petition
The right of petition is recognized in Article 29 of the Spanish Constitution. According to paragraph 1 of this article, “All Spaniards have the right to individual and collective petition, in writing, in the manner and for the purposes prescribed by law.” This right entitles citizens to address public authorities to request some action. This applies to cases in which requests are discretionary acts of public authorities.
Features of the Right of Petition
- a) The right to petition may also be exercised by non-nationals. The right may also be exercised by legal persons. It excludes members of the Armed Forces or Institutes or bodies subject to military discipline, who can exercise it collectively.
- b) Requests may be directed, in principle, to any public authority, while the Constitution only makes express provision (Article 77.1) for submission to the Courts, always in writing.
- c) The content of the law is only the “recognition for citizens to make requests to institutional bodies of any kind, but never would the request necessarily be accepted.”
- d) The referral of Article 29.2 EC, which mandates that members of bodies subject to military discipline exercise this right in accordance with the provisions of specific regulations, must be understood as a reference to the Royal Ordinances of the Armed Forces. Requests are carried out through following the regulations.