Constitutional Reform and the Appeal Process in Spain

Posted on Nov 10, 2024 in Law & Jurisprudence

An Initial Appeal

Challenge Mechanism

The challenge mechanism is a direct force of law, with the sole purpose of bringing about an abstract review of those standards.

Legitimation

  • The President of the Government
  • The Ombudsman
  • 50 Members of Congress
  • 50 Senators

In the case of laws, regulations, or acts having the force of state law that may affect their own sphere of autonomy, the following are also entitled to challenge:

  • The Executive body of the Autonomous Communities (CCAA)
  • Legislative Assemblies of the Autonomous Communities

The restriction is in place to avoid continuous standing challenges.

Standing

Standing poses some problems, among which are:

  • The Prime Minister’s legitimacy provides significant power in both government-parliament relations and the distribution of power between the state and regions.
  • The Ombudsman’s legitimacy should be restricted to the protection of fundamental rights.
  • The legitimacy granted to 50 deputies or an equal number of senators appears as an instrument for the protection of the parliamentary minority against the majority regarding state laws and regulations. However, it also allows for political reactions against laws and regulations made within the autonomous regions.
  • The Autonomous Communities may not challenge their own laws, not even those from the opposition.

Term

The deadline for filing an appeal of unconstitutionality is three months after the official publication of the contested provision in the Official Gazette.

This deadline is extended to nine months when the constitutional complaint involves competence and requires an agreement within the Bilateral Cooperation Commission to resolve discrepancies. This extension allows the state administration and the self-involved parties to negotiate and potentially avoid resorting to the Constitutional Court (TC).

Procedure

An initial appeal begins with a letter from the legitimated parties. The TC supports the application and transmits the action to the Congress of Deputies, the Senate, the Government, and, if the provision in question originates from an Autonomous Community, to the Legislature and the Executive accordingly. Any of these bodies may make submissions to the appeal. After hearing the arguments, the TC must issue a sentence.

Effects of the Sentence (Section 7, Section II)

The Question of Unconstitutionality

This question can only be raised by a judicial body ruling on an issue in any type of process, either automatically or at the request of the parties and the public prosecutor. An order must be filed once the procedure is underway and before sentencing or issuing the appropriate judicial resolution.

Any court may raise the question of unconstitutionality to the TC. However, several requirements must be met:

  • Doubts about constitutionality must arise within the proceedings before the court.
  • The question must be relevant to the decision-making process, meaning the decision or sentence depends on the constitutionality of the rule.
  • The question must be sufficiently justified and motivated by the court raising the issue with the TC.

If the TC accepts the issue for processing, the procedure will be similar to the constitutional complaint. Admitting the question of unconstitutionality suspends the trial but does not suspend the enforcement of the rule. It’s important to note that since Organic Law 6/2007, parties to legal proceedings arising from the question of constitutionality can participate in the TC and present arguments, which was not previously possible.

Auto-Issues of Unconstitutionality

This refers to the possibility that the Constitutional Court itself raises doubts about the constitutionality of a statute with the force of law. This can occur in two processes: the writ of amparo and the conflict in defense of local autonomy.

The Board or the plenary, depending on the case, should raise the possible unconstitutionality of the statute with the force of law to the full court (which hears constitutional issues). If the full court decides to do so, it will formally declare the rule with the force of law unconstitutional in a separate process.

The mechanism is the same as for constitutional issues, with only two special features:

  • The body that promotes the issue is the TC itself.
  • Prior to Organic Law 6/2007, the process in which the question arose regarding the regularity of the rule of law was firmly resolved without waiting for the decision of the Plenary of the TC. This meant that the self-questioning occurred during the resolution process, within the sentence. However, since Organic Law 6/2007, when an amparo case arises where, in the opinion of the Board (or Section), a constitutional issue should be considered, the issue is raised in Parliament, and the sentencing is suspended, as with issues raised by ordinary courts. This is done to avoid potential contradictions between the chambers and the plenary.

The Reform of the Constitution

The reform of the Spanish Constitution (EC) is regulated under Part X. We must consider three important aspects:

Time

Section 169 prohibits initiating constitutional reform during states of alarm, emergency, siege, or war.

Initiative

Reform can be initiated by the same subjects who have legislative initiative, except for popular legislative initiative. This means the government, deputies (one-fifth of the members of Congress or two parliamentary groups), the Senate, and the assemblies or regional governments.

Procedures

There are two methods of reform:

Article 167 EC

This article regulates the procedure for partial reform of the Constitution. It is rigid and characterized by the following:

  • The draft constitutional amendments must be approved by a three-fifths majority in each chamber. If there is no agreement between the two, a committee with equal representation from deputies and senators will be created to submit a text to be voted on by Congress and the Senate by a three-fifths majority.
  • If approval is not obtained through the previous procedure, and provided that the text has received a favorable vote from an absolute majority in the Senate, Congress may pass the amendment by a two-thirds majority.
  • Reforms approved by Parliament shall be submitted to a referendum for ratification, at the request of one-tenth of the members of either house, within 15 days of their approval.

Article 168 EC

This article regulates the procedure for total or partial reform of certain parts of the EC considered fundamental to the order of values underlying the Constitution: the preliminary title, Section 1 of Chapter II of Title I (fundamental rights and duties), and Title II (the Crown). This procedure is considered super-rigid.

  • It requires the adoption of the principle (an idea or decision to reform) by a two-thirds majority in each chamber and the immediate dissolution of parliament.
    • The newly elected houses must ratify the decision by a majority vote and proceed to examine the new constitutional text. Once the amendment procedure is ratified, it shall be approved by a two-thirds majority in both Houses.
    • Reforms approved by Parliament will be compulsorily submitted to a referendum for ratification.