Separation of Powers and Legal Framework in Spain
Rule of Law
The Rule of Law originated with the French Revolution and is based on the separation of powers into three branches.
The Division of Powers
Legislative Power
The Cortes Generales represent the Spanish people through the Congress of Deputies and the Senate. There are 350 Congressmen and 259 Senators. They are elected every four years by universal, free, equal, direct, and secret suffrage. The Cortes Generales exercise the legislative power of the State, approve the General State Budget, control the action of the Government, and so on.
Courts are inviolable; they are not monitored or subjected to repression when acting within the limits of the Constitution. Members of the courts are immune and can only be arrested in the case of flagrante delicto. They may not be indicted or prosecuted without proper authorization from the respective chamber.
Executive Power
The executive power is exercised by the Government, which directs domestic and foreign policy, civil and military administration, and the defense of the State according to the Constitution and Laws.
According to the Constitution, it is composed of the President, Vice President, Ministers, and other members established by law.
The Government is formed through the process of approving its President and ceases for several reasons:
- New general elections
- President’s resignation
- Motion of censure, i.e., loss of parliamentary confidence
- Death of the President
The executive branch also performs legislative functions (approving decrees, regulations, etc.) but only in cases of urgent need delegated by the legislative power. At other times, it performs judicial functions (resolving resources as a preliminary to the intervention of judges).
Judicial Power
Judges and magistrates are subject to the principle of independence, i.e., they are not subject to orders or mandates of any kind. They are subject in their decisions to the provisions of the laws without giving freedom to judge outside the law or make a free interpretation of it.
Sources of Law
Law is a set of rules, written or not, created with the idea of regulating justice and coexistence, and can be imposed by force.
Direct Sources:
- Law: Rule issued by the competent authority (the courts or the government), with all due formalities and enforceable. Laws are made and approved by the Cortes (Congress and Senate), but in urgent and determined cases, the Government may make laws. The regions may also make laws, but only for their territory and areas in which they are competent.
- Custom: Standard repetition of behavior from which a determined conduct is considered compulsory by the community. It only applies if there is applicable law and is not contrary to morality, public order, and is approved.
- General Principles of Law: Those unwritten ideas that form the basis for making the law.
Indirect Sources:
- International Treaties or Conventions: Agreements made taking into account the provisions of International Law, carried out between Spain and other countries. They are called conventions, agreements, protocols, etc. They are subject to the Constitution, and if they are opposed to it, they are not valid unless it is changed.
- Jurisprudence: The criterion used by the Supreme Court in its judgments. For jurisprudence to exist, there must be more than one case of the same class, and judges must not contradict the decision of the Supreme Court judges. Otherwise, individuals could claim a remedy for sentences.
Hierarchy of Rules
Introduction
Legal rules do not all have the same importance but are ranked from lowest to highest rank. This hierarchy is guaranteed by the Constitution and assumes that:
- An inferior rule cannot go against the provisions of a superior one.
- A later law supersedes an earlier one.
- Special law prevails over general law.
Grading Standards
Spanish Constitution: Dated 1978, it is the supreme norm in our legal system. It contains all the rules concerning the organization and state institutions, including a statement of individual and collective rights and freedoms and the principles of the political organization of the state, which must guide the actions of public authorities. It prevails over other laws, as it should be developed by other rules and laws, and citizens and public authorities are subject to it.
Structure of the Constitution: It has a preliminary title and ten titles that include 169 articles, four additional provisions, nine transitional provisions, one derogatory provision, and one final provision. Supplementary and transitional provisions are devoted mostly to planning. The final provision orders the publication of the Constitution in the other languages of Spain.
International Treaties: Written agreements made between two or more states. Treaties are only valid if they adhere to what the Constitution stipulates.
Organic Laws: They regulate the following matters:
- The development of fundamental civil liberties, i.e., the right to life, free association, education, etc.
- Laws that approve the general electoral system.
- Those provided for in the Constitution.
For the approval, amendment, or repeal of these laws, an absolute majority in Congress is needed, but no special majority is needed in the Senate.
Ordinary Laws: All those approved by the Cortes Generales that do not have an organic character and are developed through the normal legislative procedure. Law-making must follow a parliamentary procedure, a set of steps ranging from the initiative to make a law until its publication in the corresponding Official Gazette (BO).
Decree-Laws: The Constitution establishes that in cases of extraordinary and urgent need, the Government may issue temporary legislative provisions in the form of decree-laws, but they may not affect matters within organic laws. Once published in the Official Gazette, Decree-Laws are incorporated into the legal system with the force of law.
Legislative Decrees: The Parliament may delegate to the executive the power to issue legal norms with the rank of law; these are legislative decrees. For the Government to enact a standard with the rank of law, it is necessary for the courts to authorize it in each case to issue a Legislative Decree. Legislative Decrees have two forms:
- Articulated Texts: The Parliament approves the so-called framework laws, fixing guidelines that are then developed by the Government, which approves the articulated text of the law, but without departing from the purpose and criteria contained in the Law of Bases. After adoption, articulated texts have the rank of Ordinary Law and will join the legal order with the same rank as those laws.
- Revised Texts: The court can allow the Government to collect in a single text a series of scattered laws governing a single subject, to make a rational drawing of existing laws.
Regulations: Legal standards inferior to law, issued by organs of public power that do not have legislative power. They usually develop laws and are made by the Government and each of its constituent members and regional and local entities. The state regulations of the Administration have the following hierarchy:
- Royal Decrees of the Congress of Ministers
- Orders of the Deputy Commissioner of the Government
- Ministerial Orders
- Circulars, resolutions, instructions, and service orders, which will have the legal hierarchy corresponding to the hierarchy of the agency.
Rules of the Autonomous Regions: They have the same rank as state rules but do not interfere with each other, as each autonomous community can only make rules about what has been transferred to them in the statutes of autonomy. State standards are always above regional ones.
Local Standards: Referred to as ordinances and regulations, these provisions are subject to the principle of hierarchy and may not contravene the provisions of a superior rule.
Advertising Standards: Laws come into force 20 days after their complete publication in the Official Gazette unless otherwise stated. The term can be shortened for reasons of urgency (immediate efficacy) or lengthened (delayed effectiveness). For the publication of laws, decrees, and general provisions of the Autonomous Communities, there is an Official Gazette for each community. The advertising provisions of the Provincial Councils take place in the Provincial Official Gazette (BOP). EU rules are published in the Official Journal. For the full entry into force of the laws, sanction and promulgation are necessary, which is a ceremony by which the King attests to the existence of the law, and authorities are required to comply with it and enforce it in all its parts.