For the first time in Spain, the Constitutional Court has paralyzed a legislative process in Parliament. It is an unprecedented event: a constitutional body interfering in the action of another constitutional body, which has generated an unprecedented institutional crisis. Several experts provide us with their vision of what the consequences of this decision could be.
Ana Maria Carmona Contreras
Professor of Constitutional Law, University of Seville.
The main effect deduced from the resolution adopted by the Constitutional Court upon approving the very precautionary measures requested by the amparo applicants is the impossibility for the Senate to discuss and process the challenged amendments (previously approved by Congress).
With this decision, which is unprecedented in the history of the Court, not only is the principle of parliamentary autonomy established by the Constitution curtailed, severely limiting the deliberative powers that correspond to the Chambers in the development of legislative power. It also gives way to a worrying context of uncertainty in which constitutionality control would come to operate on the development of the legislative procedure while it is in progress and not, as has been the general rule up to now, on its final result: the laws.
Acting in this way would result in the bankruptcy of one of the basic postulates of our legal system in which the law enjoys a presumption of constitutionality that can only be distorted through action. former post of the Constitutional Court.
Consequently, the High Court would abandon its natural role as a negative legislator, that is, as an arbitrator, to become a determining actor in parliamentary development.
Maria Garrote de Marcos
Professor of Constitutional Law, Complutense University of Madrid.
The main consequence is the suspension of the processing of the amendments presented by the Socialist and Podemos parliamentary groups to the Proposal for an Organic Law for the transposition of European directives and other provisions for the adaptation of criminal legislation to the European Union, and reform of crimes against moral integrity, public disorder and dual-use weapons smuggling. In other words, these amendments will not be able to be processed in the Senate, nor will they be able to be voted on, so they cannot be included in the legislative initiative that is eventually approved by the Senate.
The Court’s decision only affects these amendments (those that refer to the modification of the Organic Law of the Constitutional Court and the Organic Law of the Judiciary), not the rest of the norm.
This is a precautionary suspension, and it is not a decision on the eventual unconstitutionality of the amendments, which has not been raised at any time. It must be borne in mind that the Court’s decision is the consequence of an appeal for amparo and not an appeal for unconstitutionality.
There is no doubt, at this time, of the constitutionality of the amendments. It is only warned that its processing could violate the rights to exercise the representative office of parliamentarians (jus in officium), including respect for procedures and the right to debate proposals. All this, regardless of whether or not the legislative proposals have a content consistent with the Constitution.
On a practical level, the main consequence is that these modifications to the LOTC and LOPJ will not enter into force on December 22. The General Council of the Judiciary will continue to need a two-thirds majority to appoint the magistrates of the Constitutional Court (and not a simple majority) and both must vote at the same time, not separately. The Constitutional Court, for its part, continues to maintain the jurisdiction provided for in art. 10.1. i) LOTC “for verification of compliance with the requirements for the appointment of Magistrate of the Constitutional Court.”
It is necessary to wait to know the legal arguments of the Court (and the individual votes), but without a doubt it is a very relevant decision since a legislative procedure had never been temporarily paralyzed.
Carlos Ruiz Miguel
Professor of Constitutional Law, University of Santiago de Compostela.
The resolution of the Constitutional Court does not mean the end of a war to take full control of the General Council of the Judiciary and the Constitutional Court.
The Order admits to process the amparo appeal presented by various deputies of the popular group and agrees on the precautionary measure requested to stop the processing of some amendments to a bill to reform the Penal Code.
The amendments substantially modify two organic laws, that of the Judiciary and that of the Constitutional Court, which have no relation to the Penal Code. This paralyzes the attempt to reform these laws by the “fast track”, but does not prevent their eventual reform through other specific bills. It means a delay that could be important in the plans of President Pedro Sánchez, which could imply the dissolution of the Cortes and the calling of early elections.
The challenge presented by several deputies from the PSOE and Podemos environment is inadmissible, but not because it lacks basis, but because they are not part of the procedure. This does not mean that this challenge cannot be presented later.
Francisco Manuel Garcia Costa
Professor of Constitutional Law, University of Murcia.
The immediate consequences mean that the parliamentary groups proposing the modifications to unblock the appointments of the magistrates of the Constitutional Court by the General Council of the Judiciary (CGPJ) must be approved by the Cortes Generales through another procedure, specifically presenting the groups parliamentarians or the Government each specific proposal or bill.
Politically, this means that as long as the reforms frustrated by the Constitutional Court are not in force, the conservative majority of the CGPJ will be able to continue its policy of blockade, preventing the Government from appointing its magistrates; or modify it, in this case by designating its two magistrates in their current position of advantage –which has not been lost thanks to the Court Order–, and thus opening the door for the Government to do so as well.
Other consequences have to do with a mutation of the Constitutional Court which, through the adoption of very precautionary measures under amparo, extends its control not only to the laws approved by the Cortes Generales, but also to those that are being processed, thus becoming in a kind of positive legislator, instead of a negative legislator, as it appears configured in the Constitution.
