CHAPTER 1: EFFECTS OF THE SENTENCE OF THE CONSTITUTIONAL COURT ON THE LAWS APPROVED BY THE PARLIAMENT OF CATALONIA

How many Catalan laws have been suspended or annulled by the Constitutional Court ? Which are they and what remains of them after being beheaded by this high court? How does the constitutional court work and what’s the scope of its powers? what remained of the Statute of Catalonia of 2006 after it was curtailed by the Court? These are some of the questions that Canal Republica wants to answer. We will do it through a careful and impartial legal review so that our readers have all the possible information on this matter.

This is the first chapter of a serie in which many arguments for discussion are presented. We’ll explain how the CXonstitutional Court works and what powers it has.

190218_Tribunal Constitucional

The Constitutional Court is an organ whose main function is to verify that the laws approved in Spain, both the state and regional ones, do not contradict any of the articles of the Spanish Constitution.

It must be taken into account that, although the Constitutional Court is composed of magistrates and that it passes sentences, it is not considered part of the judicial branch. It is a sui generis figure which holds the title of maximum interpreter of the Constitution.

Since it is the Constitutional Court who decides whether a law approved by the corresponding Parliament can come or not into effect (depending on whether it is adequate or contrary to the Constitution), it is expected that it is a completely independent body of the three powers of the State: legislative power, executive power and judicial power.

However, if we consider how its members are elected, this independence is shaky; 4 of the 12 members of the Court are elected on the proposal of the Members of Congress, 4 on the proposal of the Members of the Senate, 2 on the proposal of the government and 2 on the proposal of the General Council of the Judicial Power. The latter is the internal control body of the judicial branch and is composed of 20 members, 10 of whom are elected by Memberds of Congress and 10 by the Members of the Senate.

This said, within the functions of the Constitutional Court we are interested in highlighting the appeal of unconstitutionality, and especially the effects of the sentences in this type of appeal.

As a general rule, laws come into force, and therefore produce effect, once they are published in the corresponding official journal. And also, as a general rule, when the Constitutional Court admits an appeal of unconstitutionality against a law, this does not entail that this law is suspended, that is, that it ceases to produce effects until the unconstitutionality appeal is solved.

However if it is the Central Government that files the appeal of unconstitutionality, through its President, and this is done against a regional law, the Government must only invoke article 161.2 of the Spanish Constitution and request its suspension. This suspension occurs automatically. But, how long is the law suspended? Well, it is the Constitutional Court itself who will have to decide within a period of 5 months, since after this time:

  • either it ratifies the suspension, so the law ceases to produce any effects until the Court issues a sentence on the appeal of unconstitutionality, and then it will be applied or not, according to what the sentence says.
  • or it lifts the suspension, which implies that the law will continue to produce its effects until the Court issues a sentence on the appeal of unconstitutionality and, as we said before, it will be applied or not, according to what the sentence says.

In any case, the law being suspended or not suspended, the Constitutional Court will issue a sentence, once all the procedures have been completed, with one of the following pronouncements:

  1. Declaring that the law is in accordance to the Constitution, so it will continue to be applied as approved in the corresponding Parliament.
  2. Declaring that the law is unconstitutional, which means that it is null as it is contrary to the Constitution and cannot be applied. Although the law has been approved by a Parliament, it cannot produce any effect, it disappears.
  3. Since laws are formed by articles, it is possible, and in fact it occurs in many occasions, that the Constitutional Court pronounces itself partially estimating the appeal of unconstitutionality; therefore, that law will be valid in part, but concerning the articles that have been declared unconstitutional, these will be null and can not be applied.
  4. And finally, the Constitutional Court sometimes declares the constitutionality of the law, or of some of its articles, as long as they are interpreted in accordance with what the sentence states. In the case of the Catalan Statute of Autonomy of 2006, for example, many of its articles have been considered valid provided they are interpreted in the sense stated in the sentence.

Who regulates the Constitutional Court?

The Constitucional Court is regulated by the Constitutional Court Organization Act, Law 2/1979, de 3 d’octubre.

In the next chapter we will explain the consequences of the intervention of the Constitutional Court in the Estatut d’Autonomia de Catalunya of 2006.

 

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