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Saving the Constitutional Court

December 15, 2022

Published in

The World

Fernando Simón Yarza

Professor of Constitutional Law of the University of Navarra

The Constitutional Court is the core topic cornerstone of our rule of law, the cornerstone on which the constitutional order is based. Any deterioration it suffers has serious consequences. If agreeing its renewal from a partisan logic was enough for an emeritus president of the body, Professor Cruz Villalón, to speak of the risk of its "irrelevance", the red lines that some seem willing to cross now are unspeakable.

The danger that its action represents for the Constitution is very real, both because of the certainty of the damage it would cause and because of its magnitude. In this sense, I think that the Constitutional Court should seriously rethink the question, examined in the past, about its powers to fail as a precautionary measure, exceptionally, laws whose unconstitutionality would cause irreparable damage (see in this regard, mainly, the ATC 90/2010, with its four dissenting votes; reiterated in subsequent decisions).

1. To become position of the constitutional relevance of this issue today, it may be appropriate to consider, with all the seriousness it deserves, the following: a) Irreparable harm does not simply refer to what is regulated by a specific precept, but concerns a core aspect of the rule of law. I cannot resist borrowing a phrase that Judge Javier Delgado Barrio pronounced in his dissenting opinion to ATC 90/2010 and that today jurists of all ideological persuasions would surely subscribe to: "Never in the history of this court has there been a status in fact like the present one". b) The application of the rule eventually appealed would undermine the legitimacy of the institution that, subsequently, would be called upon to hear the resource. The reform, therefore, would seriously affect the integrity of the School to hear the resource of unconstitutionality by the Constitutional Court, skill expressly attributed to it by article 161.1 of the Constitution.

2. It is true, as the Constitutional Court has held on repeated occasions, that "the presumption of legitimacy enjoyed by acts or rules emanating from legitimate powers" makes it necessary to "consider as exceptional the possibility of fail its validity or enforceability" (ATC 90/2010, of July 14, FJ 2; referring to STC 66/1985, FJ 3). There are solid arguments, however, for not extending such a presumption to extremes that would be unreasonable, in situations in which it would conflict with more certain indications and no less serious damages.

3. Certainly, the automatic suspension of provisions appealed before the Constitutional Court is only constitutionally provided for in the case of governmental challenges to "provisions and resolutions adopted by the bodies of the Autonomous Communities", contained in article 161.2 CE. This precept encompasses the governmental challenge of autonomous community laws, as provided for in article 30 of the LOTC. It is, moreover, a suspension that operates ipso iure from the beginning, by the very interposition of the resource in which it is invoked, and whose parliamentary antecedents pointed to an authentic suspensive veto of the Government rather than a precautionary measure. In fact, its nature as a judicially decided precautionary measure continues to operate only a posteriori and initially constitutes a control vehicle in the hands of the Government. Therefore, I understand that it cannot be deduced from the precept alone the flat exclusion of other modalities of suspension decided a limine, as genuine precautionary measures, by the Constitutional Court. I am not referring only to the precautionary suspension that the Organic Law of the Constitutional Court may provide for, but especially to that which is constitutionally indispensable to preserve the integrity of the Schools that the Magna Carta attributes to the High Court. Otherwise, the reading of the constitutional silence as a lack of skill to agree to the precautionary suspension of the law would prevent it, even where it was essential for the indemnity of the main resource , verbi gratia, of the resource of unconstitutionality; and this even in the case of appeals filed against attacks on the very core of the constitutional order.

4. It is true that the Constitutional Court maintained in its ATC 141/1989 -and reiterated subsequently, although not without dissenting opinions- that the suspension of the application of laws is only possible when expressly provided for. In principle or in general, such a rule -not written, it should be noted, in the Constitution- constitutes a reasonable criterion. However, it does not seem that it can be taken to the extreme of undermining the very resources that the Constitution assigns to the court, and even less so when its very contamination is at stake. Otherwise, we would have to accept that, faced with the legal denaturalization of the institution that is the culmination of the constitutional edifice, the latter would have to remain as a guest of stone. It is worth remembering that there have been cases of democratic states of law dismantled by the legislator; and subsequent generations have always severely judged those who, by their action or omission, either by a malicious will or by a timid or complacent will, contributed to this.

5. In Germany, article 32.1 of the Law of the Federal Constitutional Court, of remarkably generic diction, has been invoked by the Court of Karlsruhe to admit, exceptionally, the precautionary suspension of the execution of the law (vorläufige Aussetzung des Gesetzesvollzuges). Prominent jurists in Spain have postulated, I believe with good reason, a certain modulation of the constitutional doctrine on the School of fail to suspend, as a precautionary measure, the application of rules with the rank of law. Such a modulation would have no less coverage in the constitutional text than the alleged unwritten rule that holds that it is only possible as an express provision, semper et ad semper; and in situations of singular gravity it could be founded, constitutionally, as School indispensable for the integrity of the remedies provided for in the Fundamental rule .

6. As I have pointed out, the School of the Court for the precautionary fail of an appealed rule that intends to tame it is based on the integrity of its skill to effectively know the resource of unconstitutionality, whose sense would be annulled with the illegitimate renewal. In this case, moreover, the eventual resource would be directed against a law that jeopardizes a nuclear aspect of the constitutional rule of law. The challenge could lose its meaning once the injury has been consummated and the constitutional control skill of the High Court would be neutralized. I understand, therefore, that the Constitutional Court cannot be deprived of such an important School.

7. Finally, it is not hidden that article 30 LOTC provides that "the Admissions Office of a resource or of a question of unconstitutionality shall not suspend the validity or application of the Law, of the provision rules and regulations or of the act with the force of law, except in the case in which the Government is protected by the provisions of 161.2 of the Constitution to challenge, through its president, laws, regulatory provisions or acts with the force of law of the Autonomous Communities". Even if we were to leave in the air the question -not at all trivial- that if this precept is limited to regulating the automatic suspension, as it is reasonable to maintain, its interpretation in accordance with the Constitution requires, at the very least, to allow for that suspension that is inherent to the full exercise of the constitutional powers of article 161.1 CE -especially in cases in which, as I have reiterated, there may be an irreparable breakdown for the architecture of the Rule of Law. The opposite reading, by contrast, would lead to limiting its power even when it is a necessary condition for the practicability of the powers granted to it by the Magna Carta itself. We would be faced with an interpretative restriction of difficult compatibility with the Constitution; a limitation that, even beyond the current situation, could have dire consequences in the hands of parliamentary majorities of any political persuasion.