Protection of the Constitution: The Constitutional Court & Its Role
Protection of the Constitution
1. The Constitutional Court
The Constitutional Court is essential for upholding the Constitution as fundamental law. It’s a key component in the system of power organization and distribution, acting as the supreme interpreter of the Constitution.
Most Important Aspects of the Constitutional Court:
- It exercises real jurisdiction, independent of the judiciary, subject only to the Constitution and its Charter.
- Its jurisdiction is directly derived from the Constitution.
- It holds the exclusive power to declare laws unconstitutional.
- While all public authorities and citizens are bound by the Constitution, the Constitutional Court unifies its interpretation.
- It possesses a broad range of powers.
1.1. Composition and Status of Members
The Constitutional Court comprises 12 members appointed by the King, following proposals from:
- Congress of Deputies (4)
- Senate (4)
- Government (2)
- General Council of Judicial Power (2)
While the appointment system aims to ensure independence, the proposing bodies have considerable freedom in their selections. Judges must meet specific requirements:
- Professional Qualifications: Be a lawyer with at least 15 years of professional experience, typically a judge, prosecutor, university professor, civil servant, or lawyer.
- Competence: Demonstrated expertise in relevant legal fields.
Further safeguards ensure the independence of judges:
- Independence and Tenure: Judges serve a 9-year term and cannot be dismissed.
- Incompatibilities: Similar to the judiciary, judges are prohibited from engaging in other political, professional, administrative, or commercial activities while in office.
- Limited Re-election: Immediate re-election is prohibited unless the judge served less than three years.
- Immunity: Judges cannot be prosecuted for opinions expressed in the exercise of their functions.
1.2. Organization
The Constitutional Court is chaired by a judge elected by their peers every three years, appointed by the King, and eligible for one re-election. The President organizes plenary sessions, manages the Court’s work, and serves as its representative. A Vice President, appointed similarly, replaces the President when necessary and presides over a courtroom.
The Court operates in three ways:
- Plenary: Resolves all matters except appeals for amparo, though it can address these as well.
- Chambers (2): Each composed of six judges, they handle appeals for amparo and other matters not reserved for the plenary. The President chairs the first chamber, and the Vice President chairs the second.
- Sections (4): Each with three judges, they decide on admissibility of cases and appeals for amparo delegated by the chambers.
Decisions require a two-thirds majority, with the President holding a casting vote. Judges can express dissenting opinions. The Court has three Secretaries of Justice, assisted by officers and agents.
1.3. Powers
The Constitutional Court’s powers include:
- Reviewing the constitutionality of laws and regulations.
- Hearing appeals for amparo regarding violations of rights and freedoms.
- Resolving jurisdictional conflicts between the State and Autonomous Communities.
- Addressing matters assigned by the Constitution or organic laws.
- Handling questions of unconstitutionality raised by courts.
- Reviewing challenges by the government against provisions and resolutions of Autonomous Communities.
- Declaring on the constitutionality of international treaties.
- Resolving disputes between constitutional organs of State.
- Verifying the qualifications of Constitutional Court judges.
- Resolving conflicts in defense of local autonomy.
- Addressing appeals and questions regarding Provincial Fiscal rules.
2. Control of Constitutionality of Laws
2.1. Appeal of Unconstitutionality
This mechanism directly challenges the constitutionality of laws. The following have standing:
- Prime Minister
- Ombudsman
- 50 Members of Congress of Deputies
- 50 Senators
- Executive bodies of Autonomous Communities (if the law affects their autonomy)
- Legislative Assemblies of Autonomous Communities (if the law affects their autonomy)
This restricted standing presents some challenges, particularly regarding the Prime Minister’s broad power and the Ombudsman’s potentially wide scope.
Deadline: 3 months after official publication, extendable to 9 months for competency issues requiring agreement by the Bilateral Cooperation Commission.
Procedure: Initiated by a letter from a legitimate party, specifying the contested law and reasons. The Court notifies relevant bodies (Congress, Senate, Government, and affected Autonomous Community bodies). After hearings and allegations, the plenary issues a ruling.
2.3. Question of Unconstitutionality
Raised by a judicial body during any process, by order before sentencing. Requirements include:
- The doubt about constitutionality must arise within the proceedings.
- The doubt must be relevant to the decision.
- The doubt must be justified and motivated by the judicial body.
Acceptance by the Constitutional Court suspends the original trial pending a decision.
3. Extraordinary Defense of the Constitution
3.1. States of Emergency and Suspension of Rights
Article 116 of the Constitution governs states of alarm, exception, and siege, outlining common and specific provisions for each. Declaration requires action within the affected territory. Congress and the Government decide on declarations. Restrictive measures are subject to judicial review, and normal institutional operation continues.
3.1.1. State of Alarm
Declared by the Government for up to 15 days, in cases of:
- Natural disasters
- Health crises
- Paralyzing strikes
- Essential supply shortages
Measures may include restrictions on movement, requisition of goods, temporary employment measures, and rationing. Fundamental rights are limited, not suspended.
3.1.2. State of Exception
Declared by the Government with Congressional approval for up to 30 days, renewable once. Applies to emergencies threatening public order, such as riots or political crises. Certain rights may be suspended, including:
- Freedom and personal security (except detainee rights)
- Secrecy of communications and home
- Freedom of residence and movement
- Freedom of expression and information
- Prohibition of media seizure
- Rights of assembly and demonstration
- Right to strike
3.1.3. State of Siege
Declared by Congress at the Government’s proposal. Applies to violent upheavals threatening state sovereignty, territorial integrity, or constitutional order. Suspends the same rights as the state of exception, but adds further guarantees for detainees, including the right to be informed of their arrest, not to be compelled to testify, and to have legal counsel.