Making »Un Tribunal para la Constitución«: A Documentary on the Creation and First Years of the Spanish Constitutional Court (1980–1986)

I. Introduction: Why a Documentary about the Constitutional Court?

In 2011 the Vice-President of the »first« Constitutional Court of Spain, Mr. Jerónimo Arozamena, died at 87. After reading his obituary,¹ we realized that by then only five of the first twelve judges were alive, and all five were over 80. We then started thinking about how their memories and experiences concerning establishing a new Court might be preserved. We thought that for this purpose the best option would be interviewing them and filming the interviews, and eventually, if the material was interesting or valuable, and if we could find the technical means and – above all – a producer, to put them together in a documentary.

We have just mentioned the »first« Constitutional Court. It is important to make it clear that by »first« we refer to its creation in 1980 and to the appointment of its twelve judges (ten in February 1980 and two in November 1980). It would be the »first« Court, presided over by Judge Manuel García-Pelayo until his resignation in 1986. The period of time in which this »first Court« was in office (and also the previous period 1978–1979 during which the Constitution and the Organic Law of the Court – Ley Orgánica del Tribunal Constitucional, hereinafter LOTC – were drafted and passed) would be the subject of our documentary.²

As far as we know, there was no direct account of the Court across those years. By »direct« we mean information or articles published by the main actors involved in the creation and initial functioning of the Constitutional Court, such as judges, politicians or journalists, during what we can call the founding period of the Spanish constitutional system (between 1978 and 1982).³ And by »account« we refer not to scholarly or scientific publications by lawyers, legal scholars, historians or political scientists, but rather to interviews, biographies, etc., in which the relevant aspect is the personal experience or perhaps the socio-political context. What we try to point out is that it was practically impossible to find non-legal accounts, or personal recollections, about the creation of the Court in any format: written, video or audio.

We thought that this was an important lacuna in the constitutional history of Spain, and probably also in the narrative of the Transition to democracy after 1975. Looking back to 2011, when Mr. Arozamena passed away, we realized that within a few years the possibility of collecting and gathering first-hand accounts of that specific period and of events regarding the creation of the Constitutional |Court would no longer exist. The protagonists would no longer be living, and oral or first-hand accounts would be lost forever. We thought it was worthwhile exploring the possibility of how we could contribute to filling the lacuna. But we also felt – and perhaps this was even more relevant – that it was important to do it quickly, for obvious reasons regarding the age of the remaining judges and other relevant actors.

Indeed, some materials about this »first« Court did exist, but most of them had been written by scholars. In fact, the approach taken by legal scholars regarding the Constitutional Court focused in general on the comparative aspect (that is: comparing the new Court to other European Courts) or on how the »first« Court dealt with specific issues (constitutional rights, decentralisation, remnants of the Franco dictatorship, etc.). This means that some matters were relatively overlooked, such as: how was the LOTC drafted and passed by the legislature in 1979? What was the appointment process for the first twelve judges? What was the role of political parties in this process? How did the Court work without precedents, case law, or tradition, and without being ingrained in the legal structure? What was the personal vision or perception the judges had concerning their task? When designing the documentary, we thought that these aspects would be better explained if the persons we interviewed were not just the judges, but also »external« actors such as politicians, journalists, legal scholars (both from Spain and from other countries) and other professionals (for instance, prosecutors or attorneys).

So our aim was to combine, on the one hand, a documentary for lawyers or for legal scholars, based on technicalities and on legal or constitutional concepts, with, on the other hand, some elements for a general, non-specialized audience. This does not mean that we were dismissing making a contribution to the legal field: it just means that, as legal scholars, we wanted to combine our own academic understanding, which was obviously predominant, with a broader view consisting of collecting personal recollections of the judges and other relevant actors, and perhaps eventually a historical assessment of the »first« Court. This conception of the documentary with a »generalist« perspective – some way between journalism, or communication aimed at the public at large, and legal scholarship – would be a constant challenge for us.

When we started to gather journalistic sources, or even academic sources, we noticed that their number was less than we had thought. Historiography about the »first« Court was not abundant, nor was that concerning Title IX of the Constitution (which refers to the Constitutional Court). The LOTC, passed in 1979 by the same legislature that had drafted the Constitution, had indeed been the subject of study by legal scholars, but in a theoretical, strictly scholarly fashion rather than from a broader or non-strictly legal perspective, for‍‍‍ instance focusing on the personalities of the judges,⁴ the inner functioning of the Court, or how the newly created Court was perceived by Spanish society.

Regarding audiovisual materials, our initial idea was that in the public television archive (the only one that existed when the Court was created) we could find interviews or documentaries. But some signs suggested that these sources might be scarce.⁵

II. Conceptual Issues: Interviewees, (No) Narrator and Script

By the fall of 2011 we were determined to move forward in the project of filming the documentary. But at that time, it was merely a fanciful idea. First, we had no producer – because we had not started to look for one. And second, and above all, we were not audiovisual professionals (at best, we had some basic, largely theoretical notions of cinema). So the first step was to build the structure of the project, and its budget, and write a memorandum |in order to have something we could show to prospective producers.

We were extremely lucky regarding the producer. In October 2011, we scheduled a meeting with Mr. Alfonso Candau, then-President of the Official Board of Land Registrars (Colegio de Registradores de la Propiedad y Mercantiles de España, hereinafter Colegio).⁶ We gave him a very short memorandum about the project and he was enthusiastic about it. He immediately presented the proposal to produce the documentary to the Council of the Board, which was then accepted. We were at that time, and still are, very grateful to him and to Mr. Celestino Pardo. It was not at all obvious that they – or any other person – would put trust and money in an audiovisual project lead by two law professors with no previous experience in cinema, and which dealt with a topic that could fairly be considered uninteresting (as far as we knew, no one had had this idea before, seemingly because it was not appealing).⁷

By December 2011 we had started to design the documentary. First of all we had to make decisions on several crucial questions. For example: Who should we choose to interview? And how many interviews should we conduct? Should we write down some questions and send them to the prospective interviewees, or should we film the interviews in a more responsive, improvised fashion, without a structured plan? And of course we had to recruit a team of technicians (cameraman, lighting specialist, sound recorder, editor). In sum, we had to establish a complete production plan. We were fully aware that this was a task which normally would be carried out by a film production company, but we could not turn to such a company for two reasons: first, because the Colegio had made it clear that it wanted us to be in charge of the project (it was an assignment based on personal trust), and second, and mostly, because with the budget we had been given we could absolutely not afford to hire a film production company.

The only thing which was clear to us was the object of the documentary (the initial period of the Constitutional Court), its format (interviews with relevant protagonists of this period) and its tenor (the aforementioned tone half-way between a scholarly undertaking and a more generalist film), and that it would be somewhat heterodox, given that we would not have the help of a production company. We were aware that there was a risk of creating some kind of »home movie« that did not meet the ordinary standards of cinema – which would mean a failure.

We began by selecting the persons we wanted to‍‍‍ interview. As mentioned above, in early 2012 five of the first twelve judges were still alive, and we managed to contact them relatively quickly. Three‍‍‍ agreed to be interviewed (Mr. Aurelio Menéndez, Mr. Luis Díez-Picazo and Mr. Francisco Rubio Llorente).⁸ Mr. Rafael Gómez-Ferrer initially agreed but after a few days declined, and Ms. Gloria Begué declined our proposal. We thought, and still think, that being able to count on the collaboration of three out of five was sufficient to create a comprehensive documentary. We also thought we should try to interview relevant politicians from that period. Mr.‍‍‍ José Pedro Pérez-Llorca (Minister of the Justice in the centrist government 1979–1980, and a prominent attorney) did not want to be interviewed, but Mr. Juan Antonio Ortega, his undersecretary (Subsecretario |del Ministerio de Justicia) did. His collaboration was‍‍‍ extremely important, for, as he would explain in the interview, he was the person in charge of negotiating the appointments with the opposition (the Socialist party). In the socialist field we contacted President Felipe González, who gently declined, and Mr. Gregorio Peces-Barba. The latter was a very relevant politician: he was a law professor, he had been one the seven members of the committee who drafted the initial text of the Constitution (known as the fathers of the constitution), and he was Mr. Ortega’s counterpart in the negotiations for the first appointments to the Court (he later would be speaker of one of the chambers). We contacted him in the spring of 2012, and he took some time to schedule a meeting (due to illness), so we only spoke on the phone and by email (we discussed the questionnaire and the format of the recording). We scheduled the interview for September, but unfortunately Mr. Peces-Barba died in July.

Apart from the first judges and politicians, we thought that the members of the committee who initially drafted the Constitution (its fathers) would give a valuable testimony. Of its seven members, only three were alive (Mr. Pérez-Llorca, Mr. Roca and Mr. Herrero), and, as mentioned, we could not‍‍‍ interview Mr. Peces-Barba. The three were retired from politics and at that time they were prestigious attorneys or high-ranking officials. Mr.‍‍‍ Pérez-Lorca did not show interest in being interviewed. Mr.‍‍‍ Herrero told us that he thought his remembrances of how the Committee conceived and designed the Constitutional Court were not particularly vivid and therefore he thought his‍‍‍ testimony would be uninteresting. Mr. Roca agreed to be interviewed. We already had covered the three main groups (the first judges, politicians and members of the Constitutional Committee), so we went on with other persons whose testimony we considered interesting. First, the law clerks of the Court during the period 1980–1986.⁹ We contacted four very relevant clerks, from which three agreed to be interviewed (Mr. Jaime Nicolás, Mr. Alvaro Gil-Robles and Mr. Juan Antonio Xiol).¹⁰ Second, European legal scholars who could speak of how the Court was seen in other countries.¹¹ Third, Spanish legal scholars.¹² And finally we invited a journalist¹³ and a public attorney.¹⁴ So we had 15 persons who we considered |fairly representative for making a good documentary about the first years of the Constitutional Court.

We owe a specific mention to Prof. Eduardo García de Enterría. He probably was the most prominent Spanish public law scholar, attorney and judge in the second half of the 20th century. Regarding the Constitutional Court in particular, in 1979 he was commissioned by the government to draft the LOTC, as would be later explained in the documentary by Mr. Rubio Llorente. At that time he had published some articles which were extremely important to disseminate the idea that Constitutional law was »real« law (not a political set of ideas) and that, accordingly, the Constitutional Court was a »real« court that reasoned and functioned as any other court, that is, applying the law and not political ideas.¹⁵ As he was the direct academic mentor of one of us, we thought we had a unique opportunity to get his testimony. Unfortunately, in 2012 he was no longer in good health and declined to be interviewed. Prof. García de Enterría passed away in September 2013, at 90.

During the conception process we took a technical decision regarding how to build the narrative (it was also a conceptual decision). We had to decide whether there would be a narrator or not, that is, if we would use voice over or not. We decided not to. We wanted to be transparent, in the sense of giving all the space to the protagonists. And also if we acted as narrators it would seem that our vision of the period was important, which was not the case (in the years covered by the documentary – for instance in 1980 – we were 5 and 16 years old). Therefore we decided not to appear in the film in image or in voice. This created a huge problem, or at least this is how we non-audiovisual-professionals perceived it. If we were not to‍‍‍ lead the narration, then the script, or the guiding thread would have to be built just on the interviews – on what the interviewees would answer or comment to our questions – so we would not be masters of the whole account. We would need to construct the thread in a somewhat impressionist fashion, using bits of the answers. This was considerably more difficult, but perhaps more faithful to our aim of being transparent and putting the focus on the interviewees. It is not just that‍‍‍ we did not want to‍‍‍ hog the camera: it is that we thought that it was‍‍‍ the technical solution which best fitted in our conception of the documentary.

III. The Filming and Editing Process (2012–2014)

At the time we contacted these persons, we were also conceiving how we should conduct the interviews. We thought the best idea would be to write down a questionnaire and send it to the person, so he or she could know the object and purpose of the interview (and of the documentary). Indeed, when we made contact we had already explained this. But it was likely that they would feel more at ease and more confident if the interview was previously prepared by means of a written questionnaire that they would receive some days before filming. Such ease and confidence was a key issue for us. We were not journalists who would eventually inquire about potentially tough, controversial matters, or about confidential aspects of the judgments, or about how the Court worked.¹⁶ Our aim was not |to make a documentary that would attract tabloid headlines. But even so we absolutely wanted to create an atmosphere of confidence. For that purpose, we worked hard on the questionnaires, which combined questions about the personal background and recollections of the judges with questions regarding constitutional matters.

Most importantly, we told the interviewees that they could refuse to answer some of the specific questions we submitted to them – even when the warning was probably irrelevant, for it was evident that they had the right to do so. We also told them that, after filming, we would send them the footage and a transcript, in case they wanted to withdraw any recorded content. After filming no one objected to any question nor wanted to eliminate any footage.¹⁷ In any case, the fact that we had carefully chosen the questions and that they were submitted to all the prospective interviewees a week in advance of filming made it possible for them to later be published as a coherent and meaningful book.

Before and during the filming of the interviews we also did some archival research. We thought it was important to situate the Court in its context, from a historical point of view. Therefore, we consulted the archives of the three main newspapers of that time (El País, ABC and La Vanguardia), where we found valuable documents to use in the documentary. We also visited the Archivo General de la Administración (General Archive of the Administration), but we found practically nothing relevant. For instance, we tried to find the records – if they existed – on the negotiation process to appoint the first judges, but all attempts were in vain.¹⁸ At the time of filming the interviews (2012 and part of 2013) there was no general law for consulting public archives, and the specific norm which might allow it (an article in the Administrative Procedure Law) was insufficient for that purpose.¹⁹

Obtaining images and audiovisual material was crucial for us. A documentary that only showed people speaking, with perhaps some newspaper front pages or articles, would be too boring even for a specialized audience, such as lawyers. So we tried to obtain video footage from the archive of Radiotelevisión Española, hereinafter RTVE, the public broadcasting corporation. As it was the only TV channel that existed in 1980, we supposed it would contain a lot of video recordings of the establishment of the Court in July 1980. The access to the archives for research purposes is relatively easy, and we had the opportunity to actually watch some very important historical material. The problem was that using it for a documentary was expensive because it was recorded in the old format (magnetic tape), and digitalizing it cost more than we could afford. Besides, the footage also featured the King, and the RTVE official told us that it was likely that before authorizing the use of such audiovisual content they would have to ask the Royal Household (Casa Real) for permission. Still, there was another possibility of incorporating the video recordings in the documentary. If the project was assessed by RTVE, and considered sufficiently appealing, it would co-produce the documentary and allow us to use the recordings for free. Unfortunately, after examining the memo and checking a few samples of the questionnaires, RTVE told us they were not interested. As a result, we could not use any of the material we had seen for the documentary, which clearly diminished the value and quality of the final product.²⁰ |

Regarding photographs, the process was easier and more successful. We consulted the archive of ABC (a very prominent newspaper) and bought some interesting pictures. We also asked to consult the archive of the Constitutional Court, which we thought would contain lots of material. We were allowed to make copies and to use – for free – more than 120 pictures. Some of the interviewees were so kind to give us pictures, and at the end of the day we were quite satisfied regarding the pictures (but not regarding RTVE’s audiovisual material, whose absence was very frustrating).

Filming the 14 interviews took from March 2012 to June 2013. The next step was the transcription of all the interviews, which took longer than expected. This was partly due to the fact that the transcription was done by the communication staff of the Colegio, who had to do it at the same time as their normal workload, and also because some of the interviews were quite long. The length was due to the interviewees elaborating extensively in their answers,²¹ and also because practically no one removed any of the questions. So we had recorded around nine hours of raw footage, which the Colegio took some time to transcribe. We also kept on trying to collaborate with RTVE and visited some other archives, such as that of the Consejo General del Poder Judicial (the committee in charge of the judiciary). By the end of 2013 everything was transcribed and we could start putting the pieces together. We had tentatively structured the script in six parts and arranged the pieces around them.²² This was by far the most complicated, time consuming aspect of the process. We should also mention that in October 2013 the Colegio held elections, in which the person – President Candau – and the Council that had supported the project were defeated. The complete Council changed, and we had to present the ongoing project to the new President, Mr. Gonzalo Aguilera, and his team. As mentioned, they fully supported the continuation of the documentary.

In the spring of 2014 we were ready to start the editing process. After a few drafts, and after one of us had composed and recorded the music, by the end of 2014 we completed a first version we could show to the producer. The Colegio gave its OK, and the documentary was ready to be shown.

IV. The Premiere (2015) and Dissemination as a Book (2017)

Initially the Colegio did not have a clear idea of what to do with the documentary. This was partly due to the fact that the project had been conceived and initiated under a different Council, partly to the fact that publishing audiovisual materials is not‍‍‍ the main activity of the Colegio – it was the first‍‍‍ time it had done so – and partly because the format on which the documentary would be published (DVD) was rapidly becoming obsolete, and the Colegio was reluctant to launch it online (via Youtube).

Given all this, the Colegio decided not to take any decision regarding the publication of the documentary, or its dissemination, before gauging the opinion of some scholars, judges, journalists, etc. So for that purpose the Council decided to organize some previews in order to get some feedback. The Colegio turned to the Centro de Estudios Políticos y Constitutionales (CEPC), an official body for research and publishing, with whom the Colegio had a collaboration agreement. The CEPC agreed to schedule a premiere on July 2015, to which it invited two of the protagonists of the documentary (Mr. Rubio Llorente and Mr. Ortega Díaz-Ambrona), moderated by a long-tradition journalist, Mrs. Pilar Cernuda. Some of the current Constitutional Court judges attended, as well as other relevant scholars and some politicians.

Apparently, the preview/premiere was a success; at least we received very positive comments, and the President and other members of the |Colegio (particularly Mr. Juan María Diaz Fraile, the person in charge of the research department) told us so. So the Colegio agreed to organize some more screenings, and also authorized us to do it on its behalf. Between July 2015 and July 2016 ten screenings took place, hosted mainly by universities, and at all of them one or two relevant personalities or public figures were invited to the colloquium scheduled afterwards.²³ As a result, hundreds of scholars, students and perhaps journalists or political analysts had the chance to watch the documentary, and many others found out about it (by word of mouth and through social networks, because many of the universities that hosted the screenings posted a brief news item or some pictures). Many of them started asking us, and the Colegio, where could they purchase it or watch it.

This series of events and successful screenings persuaded the Colegio that it was worthwhile to publish or disseminate the documentary. In late 2016 Mr. Aguilera told us that the Council had decided to publish the documentary not just in an audiovisual format, but also as a book that would include the documentary. This was a possibility that we had in mind from the beginning and one we had briefly discussed with President Candau, but we were aware that it would increase the final budget of the project significantly. In any case, it was merely hypothetical, and Mr. Candau was no longer President when the documentary was edited and shown. The publication of the project in a printed format was exhilarating news for us. First, because it gave a solution to a certain deadlock regarding how the documentary would be disseminated. Second, because it gave us the chance to show the complete versions of the interviews – as we said before, the documentary contained only a small part of the footage, equivalent to approximately 10% of the total. And third, because a print edition (rather than an online launch) gave us, and the Colegio, the possibility of adding more pictures or even a foreword.

It had taken approximately one year and a half to transcribe and edit the interviews, to select and buy new photographs, to complete the archival research, to keep on negotiating with RTVE on the use of the historic videos, to decide the format of the documentary attached to the book (DVD or memory card), to send the proofs to all the interviewees in case they wanted to correct or add anything, and to edit a final version of the documentary. The Colegio wanted to publish the book in a luxury format, which was expensive (the budget was also increased by the cost of the memory cards containing the documentary). Therefore it was not‍‍‍ clear whether there would be a market for such an expensive book. Probably for that reason, the Colegio decided not to publish it as a normal, commercial book but as a non-commercial or complimentary book.

In the summer of 2017 the book was almost ready to be published. The Colegio asked the Constitutional Court if they would host a screening of the documentary, which took place not as an official event but on the occasion of the summer break drinks reception, in July 2017.²⁴ Perhaps for this reason, the Colegio turned again to the Court and asked if it would be willing to host a more formal presentation of the book, which by September 2017 had already been published.²⁵ The problem was that at that time the Court was very busy with the appeals regarding the Catalan secession, and apparently could not or did not want to organize a formal presentation. And there was another issue: the Colegio was holding elections in December 2017, and therefore some daily business was halted.

Although the book had already been published, only few people could actually read it because it |was a non-commercial edition and because its presentation, which the Colegio wanted to take place in the Constitutional Court, had been delayed. In addition, there was another change in the Colegio: Mr. Aguilera lost the elections to Mrs. María Emilia Adán (the first female President of the Colegio). So again a new Council would need to‍‍‍ deal with a project which had been supported and launched by the previous Council. Luckily enough, Mrs. Adán, and many members of the newly elected Council, knew about the documentary and the book, and her attitude was completely favourable.²⁶ The presentation was agreed with the CEPC and it took place in April 2018.

By that time, other screenings had taken place,²⁷ and in February 2018 Mrs. Adán presented the book to King Philip VI, on the occasion of a Royal Audience to the newly appointed Land Registrars (Registradores).²⁸ We have to mention also a sad circumstance: by that time two of the documentary’s protagonists had passed away.²⁹

V. The Impact of the Documentary

We think the documentary and the book represent a contribution, perhaps a small one, to the ongoing debate about the Spanish Transition. Indeed, for many³⁰ the Transition ended in December 1978, when the Constitution entered into force – and therefore the period covered by the documentary would not be included in the debate. Besides, this debate on the Transition is generally a political one, sometimes bitter and partisan, while legal and even constitutional aspects are frequently disregarded. Nevertheless we believe the documentary can shed some light upon a not-too-well-known but important part of the Transition or the post-Transition: the Constitutional Court, whose protagonists had never before given their testimonies on film. It definitely possesses other valuable, more specific aspects, such as disclosing for the first time the lists of candidates exchanged between the government and the Socialist Party in order to appoint the judges, or some details described by Mr. Menéndez about his unsuccessful attempt to be elected President.³¹

In reality the documentary might possess other values, but this is not ours to expound or to decide.³² Nevertheless, we think that its main contribution might be to start filling the lacuna of oral or audiovisual sources relating to contemporary constitutional law in Spain. By that we do not mean to say that the documentary is in itself »good«, or that its content deserves praise: we just want to highlight the fact that there was no other documentary or film about the Constitutional Court.³³ This undeniable value is even more important if we take into account that the documentary gathers the testimony of very relevant persons (Constitutional Court judges) who are no longer living, and therefore it is unique. We say this for the obvious, sad reason that there will be no further opportunity to interview Mr. Díez-Picazo, Mr. Rubio Llorente or Mr. Menéndez.³⁴ |

Apart from that, the documentary – and later the book – has had a considerable impact. As we mentioned before, the documentary was screened at universities and cultural institutions in Spain and also in Italy and Germany.³⁵ The Colegio gave‍‍‍ its consent to some colleagues to use the documentary as teaching materials, so presumably many law students in Spain have had the opportunity to watch it. The book has been reviewed several times, in Spanish law journals as well as abroad.³⁶ Since May 2019 the book has been available on Amazon.