Constitutional Reform in Spain: A Comprehensive Overview
Lesson 20: The Constitutional Reform
I. General Ideas:
The Constitution, by its character as supreme law, has provisions for reform. This clause, originating in the U.S. and Europe, has undergone a distinguished evolution in four stages:
- The first period corresponds to the revolutionary constitutionalism of the principles of supremacy of the legislature and rigidity of the Constitution. It was extreme rigidity that prevented reform.
- The second period considered the Constitution as a compact between King and Parliament, so many Spanish constitutions of that time lacked provisions for reform.
- The third period, covering the inter-war years, corresponds to global and democratic constitutionalism. Rigid constitutions, establishing basic choices defining the political regime, were established and some interpreted as unreformable.
- The fourth period is that of constitutionalism after the Second World War. Reform is a guarantee of limited use; it is always best to go to constitutional interpretation to achieve the progressive adaptation of the constitutional provision to the demands of social reality. The reform problem begins when you run out of interpretation, so that reform is an exceptional warranty, juxtaposed to the normal security embodied by the constitutional court. Reform has three functions:
- The political reality regulated by the Constitution is dynamic. So the reform has to be interpreted as their first and most significant defense.
- The constitutional adequacy of the political reality is produced without breach of legal reality.
- The reform appears to address the constitutional power as a mechanism for continuity of State law, and is presented as the basic institution of ensuring the supremacy of the Constitution.
The general rule on the reform process is the participation of legislative bodies, sometimes becoming a special body (National Assembly). Sometimes reform requires approval by two different legislatures, representing the dissolution of the chambers, allowing the participation of the electorate, meaning that peaks in the constitutional referendum (optional or mandatory).
II. The cases of reform in the Constitution:
Our Constitution is intangibility clauses which involved physical limits to reform. And there is nothing irreformable. These clauses are often intangible proved ineffective, ie not provide absolute physical limits to the Constitution has established reforma.La different degrees of difficulty of the reform, a simple and a worse, more complex than the legislative process ordinario.El Art.167 (simple) and art.168 (aggravated), represent a substitute for the terms of intangibility, and did so not to exclude certain provisions of the possibility of reform, distinguishing two types of rule. And intangibility clauses are replaced by the procedure agravado.La Constitution distinguishes between revision and reform, the first would be some change or mere ordinary shares, and the second, changing the entire constitution or of the parties are considered essential in art.168.1 CE marked.
III. The reform initiative:
The initiative art.166 refers to the provisions of the art.87.1 and 2 for the legislative initiative. In accordance with this reference, have a constitutional reform initiative, “government: the initiative takes shape in a project approved reform articulated in the Council of Ministers and is submitted to Congress, accompanied by an explanatory memorandum and the necessary background. -Congress of Deputies: must be subscribed by two parliamentary groups or one-fifth of the deputies and their processing requires the consideration by the plenary of the House. “Senate must be submitted by at least fifty senators not belong to the same parliamentary group. “Legislatures of the CCAA, it can be exercised through two channels:
* Request the Government of the adoption of a draft constitutional reform, in which case would be treated directly without going through the consideration, which apply only to bills .* Referral to the General Committee of a proposal for reform Camera and delegate a maximum of three Assembly members responsible for its defense. If you use this option, the reform proposals also need to be dealt with after the consideration by the full Congreso.En any case the autonomy statutes and regulations of the Assemblies of the Autonomous Communities regulate the specific requirements for formalizing constitutional reform initiative.
V. The temporal limits of constitutional reform:
It is normal to limit the constitutional reform in situations of abnormality, in comparative law. Is the line of art.169 EC constitutional reform may be initiated in time of war or under any of the statements provided in art.116. means, the Spanish Constitution prohibits the reform initiated in time of war or existence of states of alert, emergency or siege. Raises some issues, the interpretation of wartime should not be understood as a state of siege or a state of war in fact, requires a declaration of war. We must also ask whether in wartime or during the life of one of the critical states, it could make a constitutional reform initiated earlier, the answer is yes in principle, prohibits only the start art.169 constitutional reform. This is contradictory, protect the Constitution in unstable times and reform at the moment is the opposite of what is required.