Image description: a session of the Spanish Parliament (Congreso de Disputados)
The intervention of the Tribunal Constitucional in the parliamentary debate in Spain, as discussed to in Part I, has attracted strong criticism, including four blunt dissenting opinions by the judges in the minority. This part considers the arguments used to justify the intervention in the decision.
To recall, the Court justified its intervention as a preventive measure to protect the political rights of the minority MPs in parliament, in face of an important reform being passed as an amendment of an unrelated bill in parliament (para. 6). The Court has not yet decided about the substance of the case: the Court is observing that there exists a prima facie violation of rights, and the suspension of the parliamentary debate is imposed as a preventive measure.
The disputed question here is whether the power to impose preventive measures by the Court includes the power to suspend a parliamentary debate. Article 56 of the LOTC – the regulating statute of the Court – clearly states that the general rule is the non-imposition of preventive measures: these will only be permissible in contexts of “exceptional urgency” (Art. 56.6), and “provided that the suspension does not cause a serious affectation to a constitutionally protected interest or to the fundamental rights of another person” (Art. 56.2).
There is clearly a constitutionally protected interest at stake in this case: the principle of parliamentary autonomy. The Court has previously recognized the importance of this principle, which is “founded in the necessity to remove Parliament from possible interferences from other institutions” (STC 38/2022 para. 3). This principle stems from the central position that the legislature occupies in the constitutional framework, being the only institution directly elected by citizens.
To protect parliamentary autonomy, the general procedure of review of constitutionality of legislation (recurso de inconstitucionalidad) operates exclusively a posteriori, once the law has been passed and published (Art. 31 LOTC). In this way, the Court cannot intervene until the will of parliament has been fully formed by the completion of all stages of the parliamentary process. A general mechanism of preventive review of legislation once existed, but it was removed by parliament in 1985 because it was regarded as a “distorting factor of the purity of our system of constitutional relations” (LO 4/1985, in the preamble).
The court oversteps this important rule in granting the recurso de amparo remedy, generally aimed at the protection of fundamental rights, to establish a de facto preventive review of constitutionality of the decisions of parliament. This measure causes a serious affectation to a constitutionally protected interest, the principle of parliamentary autonomy, and it is therefore a misuse of the power of the court to impose preventive measures, as regulated in Article 56 LOTC. In their dissenting opinion, justices in the minority indicate that this decision entails “surpassing the limits of constitutional justice […], converting the court in an umpire of the legislative process, altering the fundamentals of our parliamentary democracy” (first dissenting judgement, section 1).
The judgement answers these concerns by repeatedly stating that “the legislature must respect the limits of the constitutional text” (para. 5), and that “the centrality of Parliament in our democracy does not imply that it can exercise its functions […] without strict respect to the [Constitution]” (para. 9). But no one is disputing whether the acts of parliament should be in accordance with the Constitution and subject to the review of the Court. In dispute is whether this review can take place on a preventive basis, departing from the general rule of review a posteriori, violating the autonomy of parliament. No argument is given to respond to this concern.
Such an approach to the principle of parliamentary autonomy does not leave the Tribunal Constitutional at the complete mercy of the parliamentary majority. The defining elements of the Court, such as its basic rules of composition, its jurisdiction and, most importantly, its existence, cannot be amended by statute, because they require an extraordinarily costly and difficult process of constitutional amendment (Art. 168 of the Constitution).
The decision of the Tribunal Constitutional undermines the autonomy of parliament, dangerously altering the system of separation of powers of the Spanish constitution.