Rights and Duties in the Spanish Constitution of 1978

The Spanish Constitution is the fundamental law of the Kingdom of Spain. It was enacted after the 1978 referendum, as part of the Spanish transition to democracy. It was preceded by many previous constitutions of Spain.

There is a part in our Constitution called “Rights and Duties of Spaniards” which is based in the Universal Declaration of Human Rights.  This does not mean that all rights are complied with, but at least, if they are not, we can denounce it to Court.  In Spain, rights related to equal opportunities or to having a job and housing, for instance, have a special treatment as they are guaranteed only if the state's budget allows it.  But the government has the moral obligation to protect them.  When there is conflict between rights it must be solved by Court.  Let's see some examples of conflict:

Freedom of speech is the right to communicate one's opinions and ideas. The term freedom of expression is sometimes used synonymously, and includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, as with libel, slander,  sedition  (including, for example inciting ethnic hatred), copyright violation, revelation of classified information  or otherwise .

Slander: Oral communication of false statements injurious to a person's reputation.  A false and malicious statement or report about someone.  Any false or defamatory words spoken or gestures made about a person; calumny.

Libel:  A false publication, as in writing, print, signs, or pictures that damages a person's reputation. 

Honour: The condition of being esteemed or respected or well regarded.  One person's good reputation.  Damaging people's honour by means of slander or libel is an offence that may require a civil or even penal process in order to restore the honour of the offended person by the payment of a fine or some other form of compensation.

Sedition: Speech or behaviour directed against the peace of a state.  An offence that tends to undermine the authority of a state.  An incitement to public disorder.  Publicly defending violent or discriminatory attitudes, terrorism or racism is considered as sedition.

Censorship is the suppression of speech or other public communication which may be considered objectionable, harmful, sensitive, or inconvenient as determined by a government, media outlet, or other controlling body.   It occurs in a variety of different contexts including speech, books, music, films and other arts, the press, radio, television, and the Internet for a variety of reasons including national security, to control obscenity, child pornography, and hate speech, to protect children, to promote or restrict political or religious views, to prevent slander and libel, and to protect intellectual property. It may or may not be legal. Many countries provide strong protections against censorship by law, but none of these protections are absolute and it is frequently necessary to balance conflicting rights in order to determine what can and cannot be censored.  In Spain, censorship before publication is forbidden by law, but publications can be withdrawn or retired from circulation by a court order when the content is considered to incur offences like libel, sedition or an offence against honour, right to privacy, etc.

Right to privacy: All people have the right to enjoy their own privacy and their family's privacy.  The right to privacy is the right to be let alone, in the absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right.  The right to privacy and the right to information are considered to be Fundamental Rights by the Spanish Constitution. The former is enshrined in Article 18.1 and the latter in Article 20.1.d. However, each right limits the other and litigation will normally occur when a party claims the enforcement of one of these rights against another party claiming a defence based on the other right. In such a case, it is up to the court to find the correct balance between the two rights in question.

Civil disobedience: is the active refusal to obey certain laws, demands and commands of a government based on the belief that there are sufficient moral reasons for those laws to be reformed or abolished.  Civil disobedience is commonly defined as being non-violent resistance.  It has been used throughout history as a political resort, for instance, by Gandhi in his fight against British colonisation in India, and by Martin Luther King in his fight against race discrimination in the USA.  Other examples of disobedience are military disobedience (refusal to comply with the military service), fiscal disobedience (refusal to pay some taxes) and squatting (occupying an abandoned or unoccupied building or land that the squatter does not own, rent or otherwise has lawful permission to use).  When civil disobedience is carried out by a high number of citizens this contributes to governments reforming laws.  In his Dictionary of Ethics, O. Höffe points out that civil disobedience must comply with the following requirements:

ñ    It must follow political or moral reasons

ñ    It must be expressed publicly

ñ    It must be carried out in a non-violent way

ñ    It must be about Human Rights

Conscientious objection: Refusing to act against our own moral, religious or philosophical ideas.  Conscientious objection is the moral justification for civil disobedience.

NOW SOME ACTIVITIES

1       True or false?

a        The Constitution of 1978 was the first Spanish Constitution.

b       “Rights and Duties of Spaniards” is a part in the Spanish Constitution.

c        The state has no moral obligation towards the right to have a house to live in.

d       The right to freedom of speech is absolute in all countries.

e        Copyright violation and revelation of classified information are permitted in Spain.

f         Damaging people’s honour is an offence that may require a civil or penal process.

g        In Spain, publications containing child pornography can be retired from circulation.

h       When the right to privacy and the right to information clash, it is up to the court to establish a balance between the two.

i          Civil disobedience is commonly a violent act.

j          Squatting is an example of civil disobedience.

2        Match each expression in English with one possible translation in Spanish.

Duties, conscientious objection, freedom of speech, copyright, slander, revelation of classified information, fine, honour, censorship,  budget, right to privacy, lawsuit for damages, civil disobedience, libel, squatter, offence, sedition.

Reputación, deberes, presupuesto, libertad de expresión, derechos de autor, difamación, calumnia, apología del terrorismo, revelación de documento secreto, multa, censura, delito, derecho a la intimidad, demanda por daños y perjuicios, desobediencia civil, okupa, objeción de conciencia.

3        Think of some examples of civil disobedience in recent times in Spain and discuss in pairs.  Then write down the outcome of your discussion.

4       Work in pairs and think of one example of conflict between rights that has taken place recently and explain the case to the whole class.

5        Copy the four requirements, according to Höffe, for an act to be considered civil disobedience.

6        Translate into Spanish the paragraph about civil disobedience.

7        Write an example of conscientious objection in our country or abroad.