Ana Contreras, María Marcos, Carlos Miguel, Francisco Costa – Spain: What will be the main consequences of the Constitutional Court’s decision?

Spain’s Constitutional Court has taken the unprecedented decision to block the passing of a law in parliament to reform the judiciary. Four legal experts give their view on what its legal consequences are.

Cross-posted from The Conversation España (translated into English)

Ana María Carmona Contreras

Professor of Constitutional Law, University of Seville.

The main effect deduced from the resolution adopted by the Constitutional Court in approving the precautionary measures requested by the plaintiffs is the impossibility for the Senate to discuss and process the challenged amendments (previously approved by Congress).

This decision, which is unprecedented in the Court’s history, not only curtails the principle of parliamentary autonomy established in the Constitution, 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 the control of constitutionality would come to operate on the development of the legislative procedure while it is in progress and not, as has been the general rule until now, on its final result: the laws.

Acting in this way would lead to a breach of one of the basic postulates of our legal system, in which the law enjoys a presumption of constitutionality that can only be undermined through ex post action by 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 the future of Parliament.

María 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 Proposition of Organic Law on the transposition of European directives and other provisions for the adaptation of criminal legislation to European Union law, and reform of crimes against moral integrity, public disorder and smuggling of dual-use weapons. 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 in 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 law.

This is a precautionary suspension, and is not a decision on the possible unconstitutionality of the amendments, which has not been raised at any point. It should be borne in mind that the Court’s decision is the result of an appeal for amparo and not an appeal on the grounds of unconstitutionality.

There is no doubt, at this stage, as to the constitutionality of the amendments. It only warns that their processing could infringe the rights of parliamentarians to exercise their representative office (ius in officium), which include respect for procedures and the right to debate proposals. This is irrespective of whether or not the content of the legislative proposals is in line with the Constitution.

On a practical level, the main consequence is that these amendments to the LOTC and LOPJ will not come into force on 22 December. The General Council of the Judiciary will still need a two-thirds majority to appoint the judges of the Constitutional Court (and not a simple majority) and both will have to be voted on at the same time, not separately. The Constitutional Court, for its part, continues to maintain the competence foreseen in art. 10.1. i) LOTC “to verify compliance with the requirements for the appointment of Magistrates of the Constitutional Court”.

We must await the Court’s legal arguments (and the individual votes), but this is undoubtedly a very important decision, as a legislative procedure has never before been paralysed as a precautionary measure.

Carlos Ruiz Miguel

Professor of Constitutional Law, University of Santiago de Compostela.

The Constitutional Court’s decision does not mark the end of a war to take total control of the General Council of the Judiciary and the Constitutional Court.

The Order admits the amparo appeal filed by several members of the Popular Group and agrees to the precautionary measure requested to paralyse the processing of 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 paralyses the attempt to reform these laws through 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 involve the dissolution of the Cortes and the calling of early elections.

The challenge presented by several members of the PSOE and Podemos is inadmissible, not because it is unfounded, but because they are not parties to the proceedings. This does not mean that this challenge cannot be presented at a later date.

Francisco Manuel García Costa

Professor of Constitutional Law, University of Murcia.

The immediate consequences are that the parliamentary groups proposing the amendments to unblock the appointments of the judges of the Constitutional Court by the General Council of the Judiciary (CGPJ) must be approved by the Cortes Generales through another procedure, specifically by the parliamentary groups or the Government presenting specific proposals or bills.

Politically, this means that as long as the reforms thwarted by the Constitutional Court are not in force, the conservative majority of the CGPJ will be able to continue its blocking policy, preventing the government from appointing its magistrates; or modify it, in this case by appointing its two magistrates in its current position of advantage – which it has not lost thanks to the Court’s ruling – 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, by means of the adoption of very precautionary measures in amparo, extends its control not only to laws passed by the Cortes Generales, but also to those currently being processed, thus becoming a sort of positive legislator, instead of a negative legislator, as it is configured in the Constitution.

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