Constitutional Law and the Transition to Democracy in Spain

3.1 .- The constituent power is the ability of a particular political community originally to be granted a Constitution, to provide itself with a constitution that inaugurated a new system or modify the previous integral. Professor Lucas Verdú constituent power defined as “the original will, extraordinary and sovereign of a community that dictates the ground rules for the organization and functioning of political coexistence” doctrine proposed by the French in the revolutionary context. Sieyes in his work finds that the nation is the owner of the constituent power but its exercise must be entrusted to a special representative. The origins of American constitutionalism, the settlers directly involved the founding of new political communities exercising constituent power. In particular, for the approval of the founding treaties (Covenants) required the intervention of the people. Certain “Constitutions” of the nineteenth century were born of the constituent power of the citizens, but for certain concessions for the monarch (Constitutions granted) or agreements between the monarch and the Courts (Constitution agreed). Ownership of the constituent power is always for people. Should provide for the constitutional process necessarily involve citizens. Some constitutions have been passed indirectly through the representatives of the citizens assembled in Constituent Assembly, other constitutions are approved through the direct vote of all citizens: direct democratic legitimacy through a referendum. Among the characteristic of the constituent power must be noted that originates, it belongs to the people and not derived from another instance or higher authority, is extaordinario, its exercise is discontinuous, is free, is not conditioned by legal standards, and is unitary, not divided between various bodies, including the powers that be. We must distinguish between the constituent power (primary) and procedure of constitutional reform: the original constituent power is not subject to any rules, while the constitutional amendment adapts to the procedure set by the text (derived from or constituted constituent power). After the constitutional process, the powers that arise under the provisions of the new basic text, are called powers that be. The powers that be are under constitutional mandates approved by the constituent power.

3.2. The Spanish transition to democracy is a peaceful political reform process and agreed that, on the legal basis of the Franco regime, seeks to establish constitutional democracy in our country. The Act of Succession of 1947, declares the establishment of the monarchy after the death of Franco and appointed Chief of Juan Carlos de Borbón. In June 1976, Juan Carlos I appointed Adolfo Suarez as prime minister. The new Government is promoting the transition to democracy by presenting to Parliament a bill for political reform. Law 1 / 1977 of January 4, for Political Reform was approved on November 18 of 1976 by ​​Parliament and subject to referendumon December 15 , 1976. This law is the legal basis for the transition to democracy. In Article 1 declares the democratic character of the Spanish State, the principle of popular sovereignty and respect for human rights. Provides for the election of the new bicameral Cortes (Congress and Senate) by universal suffrage. For the Senate, also provides for the election of representatives by the King. Congressional elections will be guided by criteria of proportional representation, according to the following principles: First. Apply correct to avoid fragmentation devices disadvantages of the House. II. The constituency is the province, setting an initial minimum number of deputies for each of them. The Senate elections are based on criteria of majority voting. Government approves decree recognizing the freedom of political association and Decree-Law 20/1977 of 18 March, implementing the electoral system of Parliament. The first democratic elections (pre-constitutional) are held on June 15, 1977. Then meet the new “Constituent Cortes” (July 22, 1977) and opens the constituent period.

3.3. Constitutional law in a material sense, a set of rules that define the core values ​​of state order, which declares the fundamental rights of citizens and governing the composition, organization and powers of those who holds the different branches of government. Are normally contained in the written text of the Constitution, but may also be externally manifest through laws, resolutions of the organs of a judicial nature and a set of convenicones and / or constitutional practice (custom). The first written constitution a source of law, usually as a single text containing systematically organized. Makes it possible constitutional rules are readily known by members of the political community. The Constitution also lists usually the system of sources of law of the State (laws, decrees, judgments, legal customs and so on.) Act as a source of constitutional law: the Constitution refers to the law, an expression of general will, to the development of some fundamental matters of relevance are not fully regulated in its articles. Constitutions refer to certain formal characteristics of laws adopted by a procedure other than the adoption of ordinary laws, characterized by a certain stiffness that derives from the demand for qualified parliamentary majorities, constitutional law (Italian constitution) or laws (French Constitution and Spanish). Article 81

3.4. The interpretation of the Constitution. The legislature, political interpreter of the Constitution, enact the laws are an expression of general will. Laws should develop constitutional principles, the legislator has a wide scope for interpreting the Constitution and pass laws COFORM the political will of the majority of the time. The Constitutional Court (TC) supreme interpreter of the Constitution and the only one who can review and invalidate the interpretation of the law made by Parliament. OLCC Art 1.1: The Constitutional Court is independent of other constitutional bodies and subordinate only to the Constitution and this Act. The method of interpretation that follow the lawgiver and the Constitutional Court is to strike a balance between freedom of setting legislative and respect for the content of the legal-constitutional precepts topical method is called.When applying the Constitution, all courts must interpret the constitutional provisions under the law passed by the Constitutional Court: Article 5 of Law on the Judiciary. The legal interpretation is to ascertain operation what is the meaning, the meaning and scope of a particular legal rule.
Different legal operators will follow the method of interpretation proposed by Savigny: grammar (based on the literal text of the standard), historical (considered background), systematic (interpreting the provision as to its location and other provisions included in the same chapter, title …), teleological (covering the aims, objectives pursued by the standard) and / or sociological (consider the social context in which it is applied). These criteria are not mutually exclusive, can be complementary. The Civil Code, Art. 3, specifically refers to these interpretations of the right criteria. In addition to these interpretative criteria should also take into account the higher values ​​of law enshrined in the Constitution: Article 1.1 CE: Spain becomes a social and democratic state of law, which holds as superior values ​​of its legal freedom, justice, equality and political pluralism.

3.5. Diffuse model of constitutional justice and judicial in nature: it arises in the United States of America. The federal Constitution declares that it is the “supreme law of the country,” the judiciary has jurisdiction to ensure the constitutionality of laws. The doctrine of judicial review of legislation has its origin in the Judgement issued in 1803 by Justice Marshall in Marbury v. relation to. Madison. Concentrated model of constitutional justice: European liberal constitutionalism in the nineteenth century, the law adopted by the National Assembly is no limit. The Constitution is a text of an ideological-political, with little projection rules. The legislature can interpret at will the constitutional provisions without the judiciary to the constitutionality of laws. In the twentieth century continental constitutionalism, the Constitution acquires legal force and holds the position of superiority over other legislation. To ensure the constitutionality of the law will create a new constitutional body specifically dedicated, independent, other constitutional bodies exercising traditional state powers. The Constitutional Court acts as a “negative legislator”. You can not dictate the law but it can repeal a law. His sentence has the force of law, formally repealing the provision declared unconstitutional longer part of the law.

3.6 .- The Constitutional Court. Composition, organization and competence. The Spanish Constitution is a constitution rules, an effective legal standard, which is above the law (principle of hierarchy) and that binds all citizens and all public authorities (art. 9.1 CE). The Constitutional Court is a body created by the EC itself to ensure the implementation and the primacy of EC on other legislation. The TC will ensure that the other constitutional organs perform their functions while respecting the basic framework of coexistence constituent agreed at the time. The core competence of the TC is the control of Parliament in the exercise of the legislative (lawmaking): control of the constitutionality of laws. Constitutional Court is an independent body which is outside the judiciary and is subject only to the Constitution. The Spanish Constitutional Court consists of twelve members, who hold title to magistrates of the Constitutional Court. They are appointed by the King by Royal Decree on a proposal from the chambers that make up the Parliament (four by Congress and four by the Senate), government (two) and the Supreme Judicial Council (two). This designation system for maximum political consensus in Parliament. Article 159.1 EC. Judges nominated by the Senate shall be elected from among candidates nominated by the Legislative Assemblies of the Autonomous Communities. The candidates proposed by Congress and the Senate must appear prior to the relevant parliamentary committees. Appointment to this position is for nine years, renewed every three years, four of the twelve. The Congress shall appoint four judges, three years, the Senate shall appoint four members, and three years the Government and the CGPJ appoint the remaining four. Article 159.3 EC. The Constitutional Court elects its President for a term of three years, the choice of President is by absolute majority (first round) or a simple majority (in second round), the President may be reelected for another term of office. Article 160 EC

The status of the TC members; guarantees to safeguard the independence of the judges of the TC: 1 .- Irremovability: Judges of the TC may not be removed from office once they have been appointed until the end of nine years in office. The only causes which may include the termination is resignation, incompatibility, incapacity, requiring civil or criminal liability. This principle corresponds to the principle of tenure for judges and magistrates. The principle of tenure will mean a guarantee of independence of judges in office; Judge chosen not subject to political pressures that threaten his dismissal. 2 .- Incompatibility: the judges of the TC should be devoted exclusively to the performance of their duties and are therefore subject to a strict regime of incompatibilities. As members of the judiciary, the magistrates may combine its business with the performance of political office or exercise of any professional or commercial activity, while the judges and magistrates can not be active in a political party or trade union CT Judges are allowed if the exercise of such right of political participation (however, may not hold any position of responsibility in such associations). The Constitutional Court is organized in plenary, composed of twelve judges, and two Chambers, of each of six judges chaired by the President and Vice President of TC respectively. In turn, the Court is divided into sections, each one integrated by three judges. Full knowledge of all matters assigned to TC, except for habeas corpus that are assigned to Chambers. TC plenary governmental functions exercised non-jurisdictional, referring to government and internal organization of the same. The Court enjoys budgetary autonomy (making their own budget) and administrative (Regulation on Organization and Personnel).

The powers of the Constitutional Court: Article 161. 1. The Constitutional Court has jurisdiction throughout the Spanish territory and is competent to: a) The appeal of unconstitutionality against laws and regulations having the force of law. A declaration of unconstitutionality of a legal rule with force of law, as interpreted by case law, affect this, although the decisions handed down shall not lose their status of res judicata.B) The amparo remedy for violation of the rights and freedoms contained in Article 53, 2, of this Constitution, in the circumstances and manner prescribed by law. C) Conflicts of jurisdiction between the State and the Autonomous Communities or from among themselves. D) other matters assigned by the Constitution or statutory laws. 2. The Government may appeal to the Constitutional Court against provisions and resolutions adopted by organs of the Autonomous Communities. The dispute about the suspension of the provisions or resolutions, but the Court, if necessary, must either ratify or lift no later than five months. Other functions: Control of the constitutionality of rules with the force of law through the constitutional complaint, an issue of unconstitutionality and prior checking of international treaties, protection of fundamental rights through the writ of amparo, control the distribution of powers between CCAA and State through the conflict of jurisdiction, control the distribution of competences between the different constitutional organs of the state through the conflict of powers, control of municipal autonomy through conflict in defense of local autonomy

3.7 .- The Constitutional Court. The procedures for the declaration of unconstitutionality. Appeal of unconstitutionality: the constitutional challenge must be filed within three months from the publication of the rule being challenged. The body that holds standing has the appeal within the prescribed period, including what is motivating the contested provision and causes of unconstitutionality. If the complaint is admissible, it shall refer the appeal to the authority which approved the statutory provision being challenged. These bodies appeared in the proceedings and present their claims. TC will be the Plenary of the Judgement handed down for the reasons alleged in the appeal and in the claims. Art. 32.1 OLCC: They are entitled to exercise the constitutional complaint in the case of Statutes of Autonomy and other laws of the state, organic or any of its forms, and statutes and acts of State or the Autonomous Communities with the force of law, International Treaties and Orders of the Houses and Parliament: a) The Prime Minister, b) The Ombudsman, c) Fifty Deputies d) Fifty Senators. The judgments must be published in the BOE, including dissenting (dissenting opinion of the judges are in a minority position). A declaration of unconstitutionality of a particular legal rule creates invalid. All other provisions of a statute with the force of law not affected by unconstitutionality shall survive. The Judgement is res judicata from the day following that on which the Judgement is published (not granted a period of vacatio legis) and you can not contest it.

Question of unconstitutionality: Article 163 EC. The question of unconstitutionality is a means of control rules with the force of law when applied by judges or courts. The question is an indirect way of judicial review.The question of unconstitutionality opera “as a debugging mechanism of the legal system to prevent judicial enforcement of a regulation having the force of law to produce judgments contrary to the Constitution to be the standard applied”

Procedure: the court must ensure that there is no interpretation of the statute with the force of law to fit the EC and shall hear the parties to the proceeding. The processing of the judicial process will reach the end and just before passing sentence the judge will raise the issue to the TC by car. O nce the issue reaches the TC is performed by checking their compliance with the requirements legally required, once the question is inadmissible, the CT is transferred to the State Attorney General and the Parliament or government that issued the standard the force of law subject to the procedure. After hearing the parties, give a sentence that will have the same effect as that solves a constitutional complaint, that decision must be communicated to the proposed court.