Spanish Court's Control over Parliament: Constitutionality of Laws and Norms, Exámenes de Derecho

¡Descarga Spanish Court's Control over Parliament: Constitutionality of Laws and Norms y más Exámenes en PDF de Derecho solo en Docsity! EXAM QUESTIONS 1. The relationships between the Spanish Parliament and the Government: special attention to the appointment of the President and the parliamentary function of control over the Government 2. The relationships between the Spanish parliament ant de Judiciary: special attention to the designation of the members of the General Council of Judicial Power and the parliamentary Prerogatives 3. The control of the Spanish Constitutional Court over the Parliament: the control of constitutionality I. The Control of the Constitutionality of Laws and Norms with the Force of Law. A. General Aspects the appeal of unconstitutionality against laws was the typical competence of the "guardian of the Constitution" for kelsen and now it is recognised as the primary competence of our Constitutional Court by Art. 161 SC. However, Kelsen's scheme, in which this control is only initiated at the instance of political organs, was modified to permit the ordinary and the Constitutional Courts to collaborate. Judges and courts have the capacity to present questions on unconstitutionality when they have to apply a norm with the force of law which they consider to be contrary to the Lex legum. Judging the constitutionality of a law in relation to the case in hand in which the interests of specific persons are at stake is known to the doctrine as concrete control, in contrast to the abstract control of the appeal of unconstitutionality, in which the appellants-at least in principle- have no other object than to maintain the supremacy of the Constitution. Due to the collaboration between the ordinary and Constitutional Courts, the Spanish system of constitutional control assigns to the ordinary jurisdiction a role in guaranteeing the constitutionality of the laws, as happens in the diffuse North American system; however, the essential feature of concentrated control does not entirely disappear: the monopoly to declare that a norm is within the law lies exclusively in an organ not integrated into the judicial power, the Constitutional Court. The LOTC details the norms that can be the subject of constitutional control, either by way of appeal or by question posed by a judge and they are: a) The Statutes of autonomy and other Organic Laws. b) Other provisions with the force of law, without prejudice, in the case of LegislativeDecrees, to the control that the laws of delegation themselves may stipulate in favour of the Courts, although in practice no law has ever established such control. The LJCA does establish a general control by the ordinary courts when they go beyond the limits of delegation (No. 69). c) International treaties. d) The Standing Orders of the Chambers and parliament. e) The Laws, acts and normative provisions with force of law of the Autonomous Communities. f) The Standing Orders of the Legislative Assemblies of the Autonomous Communities. 194. Judgements pronounced in proceedings for unconstitutionality take effect in the particular case and in general from the moment of their publication in the Official State Gazette. The Court can declare the unconstitutionality of the precepts challenged based not only on the articles cited in the proceedings, but also any other it deems violated. In the Autonomous state, there will be taken into account not only the Constitution itself but the "whole block of constitutionality", in which the Statutes of Autonomy and other laws delimiting competences are included (Numero. 229). The judgements that declare the unconstitutionality of the precepts challenged shall pronounce their nullity, with the result that they are removed from the legal system in general from the moment of their publication (ex nunc). However, the LOTC itself states that the sentence takes effect from the moment in which the unconstitutional norm was approved (ex tunc) when dealing with criminal proceedings or contentiousadministrative cases that carry a sanction since annulling the norm results in a reduction in the sentence or sanction. On some occasions the Court does not declare the unconstitutionality of the norm but requires a certain interpretation of it conforming to the Constitution, ruling out other possible, normally more evident, ones. B. The Appeal of Unconstitutionality. 195. According to Art. 162 of the Constitution, the appeal of unconstitutionality can be lodged by the President of the Government, the Ombudsman, fifty deputies, fifty senators, the executive corporate bodies and the Legislative Assemblies of the Autonomous Communities. The LOTC has restricted the authority of these two autonomous bodies to lodge appeals against laws, 101. If we consider the art. 1.1 (Spain is a democratic state) and art. 1.2 (sovereignty resides in the people from which emanate all the powers) … the conclusion is that the expression "political form" refers to "form of government“ Head of the State (one of the bodies of the State, an institution, a branch) Meaning of the expression “parliamentary Monarchy” - it is one of the formulas or types of "forms of government" - it implies: • the separation of the King from the ‘governmental’ function • as well as the responsibility of the Government before the Parliament the king rules, but he does not govern 1978 costituent assabembly: The 1978 constituent assembly accepted, first, the monarchy as the form for the Head of State (Art.1.3 SC) and subsequently, keeping the King designated by the Francoist parliament, Don Juan Carlos de Borbón, who was declared the "legitimate heir of the historical dynasty" (Art. 56. SC), indirectly it has been endorsed by the citizens when voting in the referendum for the ratification of the Constitution(6-XII-1978). 102. The order of succession established in Art. 57 of the Constitution is the traditional form that goes back to the Partidas (Mandates) of Alfonso X el Sabio in 1265: "The succession to the throne shall follow the regular order of primogeniture and representation, the first line always having preference over subsequent lines; within the same line, the closer degree over those more remote; in the same degree, the male over female and in the same sex, the elder over the younger". Evidently, this provision, while not so cruelly discriminatory as the Salic law, results in a preference of men over women, which is not only anachronistic at this historical moment, but cannot, in the long term, benefit the monarchy, an institution that is already rather out of step with the values of equality prevailing in democratic societies. The heir to the Crown is given the official title of Principe de Asturias, which dates back to 1388, and the "other titles traditionally linked to the successor" (Art. 57.2 SC), these being Príncipe de Gerona, Príncipe de Viana, Duque de Mont-Blanc, Conde de Cervera and Señor de Balaguer. 103. Far-sightedly, the Constitution stated that if there were no heirs according to these criteria, parliament should appoint the successor as is "in the best interests of Spain". Likewise, it stipulated that abdications, renunciations or any doubt "in fact or law that may occur in the order of succession to the Crown shall be resolved by an organic law" A difference between this and historical Spanish constitutions is that now neither the King or his heirs need any type of parliamentary authorisation to contract marriage; however, Art. 57.4 of the 1978 Constitution lays down that any persons having the right of succession to the throne who contracts a marriage expressly prohibited by the King and parliament shall be excluded from the succession to the Crown. 104. The succession to the Crown is automatic as soon as it is vacant due to the death of the King or any other cause, but for the monarch to be able fully to exercise his functions a solemn act before parliament is required in which the King must swear an oath promising faithfully to carry out his duties, to obey the Constitution and the laws and ensure that they are obeyed, and "to respect the rights of citizens and the Autonomous Communities" (Art. 61). 105. In the event that the King is a minor or is unable to reign, Art. 59 of the Constitution sets out that his father or mother shall exercise the regency. In the absence of parents, the adult relative nearest in succession shall do so, and if there is no one parliament shall appoint a regency that can consist of one, three or five persons. The regent shall have the same powers as those given to the King by the Constitution, although they shall be exercised in his name, and shall cease when he becomes of age or regains his capacity to rule. The Constitution establishes the post of tutor who can only be the regent if s/he is the parent or other direct ascendant of the King. The guardianship of a minor depends, in the first place, on the testamentary dispositions of the late king and if no one is 67 appointed, the surviving spouse shall be tutor during widowhood; in default, parliament shall make the appointment. § 2. LEGAL STATUS OF THE KING. 106. Following the text of the Belgian Constitution, Art. 56.3 of the Spanish states that the King is inviolable and not subject to responsibility. This means that no type of proceedings, civil or criminal, can be initiated against him. But, as in a democracy powers without responsibility cannot exist, the same article adds that his acts must be endorsed if they are to have validity. Thanks to this technique of endorsement, the political responsibility for the King's acts is transferred to the person who endorsed them; therefore, although formally they are the King's acts, he who takes the material decision-and is responsible for it- is the person who countersigns it (express endorsement) or who is present when the King makes a speech, visits an institution, etc. (tacit endorsement). Art. 64.1 of the Constitution establishes that the King's actions will be endorsed by the President of the Government and, when appropriate, by the competent ministers. When it is a question of the proposal of the candidate for Presidency of the Government and subsequent appointment, the President of Congress makes the endorsement. According to the Constitutional Court, the wording of this article prevents other persons from endorsing the King's acts, so that the appointment of the Presidents of Autonomous Communities made by the King must be endorsed by the President of the Government (STC 5/1987, 27 January, Case Lehendakari I). While this may be an impeccable literal interpretation, in my opinion it would have been more consistent with the role of the King as a symbol of the unity of the state and with the ultimate logic of the technique of endorsement (to show the organ responsible for the King's actions) if this appointment were endorsed by the President of the Autonomous parliament. 107. The King needs no endorsement for his private a) The countersign (endorsement?) - story: "the king can not do wrong" - Function of the endorsement: it exonerates the King from responsibility ….. privilege? cts, ) concept of the countersign: 5) Guarantor of the Constitution (art. 61.1 SC) but the King is subject to the Constitution (art. 9.1 SC), although in extraordinary cases it could play a very decisive role (i.e. February 23, 1981) B) Duties of the King: (triple perspective) related to the Cortes Generales: related to the Government related to the Judicial Power 1) Duties of the King related to the Parliament (Cortes Generales): -to sanction and promulgate the laws; -to summon and dissolve the Chambers -to call elections for the Deputy Congress (Congreso de los Diputados) and the Senate (Senado) 2) Duties of the King related to the Government: -to propose a candidate for President of the Government and, as the case may be, appoint him or remove him from office -to appoint and dismiss members of the Government (on the proposal of its President) -to be informed of State affairs and to chair the Council of Ministers -to issue Decrees (regulations) adopted by the Council of Ministers -to confer civil and military positions -to confer honor awards and distinctions -to exercise supreme command of the Armed Forces -to accredit ambassadors and other diplomatic representatives. -to sign international treaties -to declare war and to make peace 3) Duties of the King in relation to the Judicial Power -Justice emanates from the people and is administered on behalf of the King by Judges and Magistrates of the Judiciary (art. 117 SP) -to appoint the President of the Supreme Court, on being proposed by the General Council of the Judiciary (arts 123 SP) -to appoint the State Public Prosecutor, on being proposed by the Government (art. 124 SP) Conclusion: "The king reigns but does not rule": Acts of the King are due Except in exceptional circumstances -to exercise the right to grant pardons 7. The Election of the President of the Government 142. The Constitution regulates in detail the procedure by which Congress grants the "investiture" of the President. 143. Art. 99 of the Constitution provides that after each renewal of the Congress of Deputies, and in other constitutional situations in which there is no President (resignation, death), the King shall propose a candidate for the Presidency of the Government, after consulting with the representatives designated by the political groups with parliamentary representation. On the nine occasions that until now the King has had to propose a candidate (after seven general elections and one resignation) these consultations have been little more than protocol because always the party with most deputies, either alone or as a result of pacts with other parties, has won a majority favourable to its candidate (Table 8). The King, in the light of the electoral results ratified Adolfo Suárez; there was no investiture as such The candidate proposed by the King, through the President of Congress, submits the political programme he intends to follow (which in parliamentary practice means that the names of future ministers are also indicated) and then there is a debate where each parliamentary group makes its position clear. Later a ballot is taken that is not secret- unlike the practice in other parliaments, such as the German and the Italian- but "in public and aloud". To be invested President, the Constitution requires the candidate to obtain an absolute majority of the members of Congress (176 out of 350, therefore); if s/he does not get this majority, the candidature is re-submitted to a second ballot where a simple majority is enough. If this is still unsuccessful, the King must proposes new candidates who undergo the same procedure and if none of these manages to obtain a majority within two months from the first ballot for the investiture, the King shall dissolve both Chambers and call new elections with the endorsement of the President of Congress. These provisions, as mentioned earlier, have not yet had to be used, all candidates winning on the first ballot, except in February 1982, when the UCD candidate, Leopoldo Calvo Sotelo did not obtain the absolute majority on the first ballot and a second was needed on 23 February. This, memorably, was interrupted by the violent incursion of armed military rebels, who fortunately did not succeed in their attempt to overthrow Spanish democracy. 8. Motion of censure and vote of confidence 9. The functions of the Government I. The Political Direction of the State.