The political and institutional crisis currently taking place in the Spanish State deserves the name of crisis for two reasons. The confrontation between the Constitutional Court and the legislative chambers, in this case the Congress of Deputies and the Senate, seems incredible, although some people predicted it. It is very difficult to understand that a power, the Constitutional Court, which through law should be the place to direct and calm political conflicts, has become the main cause of these conflicts, and also on its own initiative. It is unacceptable that the Constitutional Court intends to give a mandate to the Congress of Deputies by constitutional (because no article allows) and democratic (government of judges) means to paralyse a legislative procedure. It has to be said from the outset that the Congress of Deputies would not be obliged to fulfil this mandate, because Congress is inviolable. Like the Senate and the Autonomous Legislative Chambers.

If Congress is inviolable, why does the Constitutional Court dare to challenge it and order the procedure to be suspended? This should be sought, among other reasons, in a recent history: The Constitutional Court and other courts have been allowed to challenge the autonomous legislative chambers. The High Court of Justice of Asturias has long sent an office to the Bureau of the Parliament of Asturias and ordered that a matter be dealt with in full. Before this, a lawyer from the Asturias Chamber published a paper entitled “Chronicle of a surprise”. Today this surprise is missing because the Constitutional Court and other courts have sent different orders to the Basque Parliament and the Parliament of Catalonia. Failure to comply with these precepts presupposes the prosecution of these persons for disobedience. It is true that in these cases the Constitutional Court and ordinary courts have intervened in this way, knowing that parliamentarians have no immunity, that is, that members can be prosecuted without the permission of the Chambers, which is not the case in Congress or in the Senate.

These facts are very serious, they are institutional and political crises, as we have said before. It is a legal and institutional crisis, because there are no constitutional requirements that allow the Constitutional Court and ordinary courts to do such a thing. The Constitutional Court and the ordinary courts are subject to the principle of legality and need a law that recognises their competences. If there are no rules, they are not allowed to intervene. But even in the theoretical case in which a law could intervene, this law would be unconstitutional because it would be contrary to the principle of inviolability of chambers.

Legally, the conclusion is unequivocal and inevitable. However, this supposed unconstitutional intervention by the Constitutional Court would result in a political crisis, of a size that is currently unthinkable. Congress and the Senate are not obliged to fulfil the mandate of the Constitutional Court for being inviolable and for being the defenders of its inviolability. This means that they must not comply with the judicial mandate. The Constitutional Court should, where appropriate, be responsible for prosecuting ordinary courts, in particular the Supreme Court. If the Supreme Court considers it appropriate, it could say no, and should send a letter to Congress or the Senate requesting the removal of parliamentary immunity so that they can be prosecuted. If the cameras do not remove immunity from themselves, they will not be able to process; there it ends. There might be some variables, but I think the latter would be the most feasible of the most unstable.

There is no case in comparative law that raises similar issues. What is more, there could theoretically be a conflict between the Constitutional Court and Parliament’s Bureau, and there would be no opportunity to resolve it legally. The exception is that the Parliament concerned has legislative powers and modifies regulation, allowing the Constitutional Court to resolve the exercise of those powers. Moving ahead a little further, the legislative procedure should be considered.

Legislative procedure

The Constitutional Court cannot paralyse the legislative procedure. If he sends such an order to the Congress of Deputies, he would be committing a crime against prevarication and separation of powers. The Courts would be obliged to continue the legislative procedure. Against the decision of the General Courts there would be no legal response. If it is not understood that members of the Courts who participated in the vote should be prosecuted. And the question is mandatory. In what democracy are parliamentarians prosecuted for voting a law? There has already been talk about this. The same case law of the Constitutional Court must now be taken into account in this matter.

In this way, the Constitutional Court would go against its jurisprudence, in which it defined the parliamentary character as “the privileged scenario of public debate” and added that “the possible outcome of the parliamentary debate should not condition the viability of that debate”. It also states that “jurisdiction should be defended only in the event of infringements, never in the event of legal projects or intentions. Jurisdiction may react against the legal form that such intentions cause, but the intention itself and its debates are immune to any judicial control, in a democratic society, especially if the debate is based on a parliament, in the prime venue of the public debate.”

If this has been the case for the Constitutional Court, what arguments can you make at the moment to paralyse a legislative procedure?

Parliamentary inviolability

Parliamentary inviolability is reflected in various statutory and constitutional provisions. It was unanimously collected in the positive law, but it does not correspond to its doctrinal and jurisprudential attention. However, inviolability is a central component of the principle of separation of powers, which is fundamental.

The meaning of the category of parliamentary inviolability can be found in the Constitutional Court. It recalls that the inviolability of parliamentarians is based on “guaranteeing the freedom and independence of the parliamentary institution”. He adds that parliamentary inviolability and immunity are not privileges, as they are not attributed to the private interest of members of the Chambers, but to “the general interest, to guarantee their freedom and independence, as a reflection of what is guaranteed to the body to which they belong”. Parliamentary inviolability means that no body has jurisdiction over the functioning of the chamber. Whenever there is a legally reprehensible intention, the final result should be monitored, especially if it is a rule, but in no case can it intervene in the legislative procedure.

On the place of the Constitutional Court in the Spanish constitutional system: from the monopoly of the withdrawal of laws because they are unconstitutional to a supra-parliamentary political agent

The principle of separation of powers, with the prospect of legislative, executive and judicial power, was not sufficient to guarantee freedom, as European history shows.

Hence the need to safeguard fundamental rights before the legislator. For this function, the Constitutional Courts were created, which collect competencies with different meanings and meanings in each place. The Spanish constitutional system is due to the conception of Kelsen, in which the Constitutional Court is configured as a negative legislator, since the law has the competence to exclude by unconstitutionality. This competence is accompanied by the defense of fundamental rights through amparo resources, procedures for resolving conflicts of competence and the defense of local autonomy.

The role of the negative legislator implies the competence to declare the unconstitutionality of the law, which is effective from the moment of the publication of the judgment in the BOE. This declaration of invalidity annuls the law or articles declared unconstitutional with its corresponding effects ex nunc or ex tunc. Since it is a declarative judgment, its implementation is not appropriate as the effects are exhausted with the publication itself. The Constitutional Court forgets its role in the institutional structure provided for in the 1978 Constitution and takes an active role in the political direction of the parliamentary chambers. This entails a radical overturn of constitutional provisions and an approach that is alien to European legal culture.

The jurisdiction of the Constitutional Court is enforceable and there must be a legal rule enabling its jurisdiction. Well, the Organic Law of the Constitutional Court does not provide in any of its precepts for the possibility of giving orders to state or autonomic parliaments. The Constitutional Court therefore has no rule enabling it to exercise its power. The power to enforce judgments is invalid without a law determining it.

The Constitutional Court cannot send the parliaments' bureaux, because such an action would forget that it confirmed two years earlier the nature of the parliaments as a privileged place for public debate, and that this function cannot be hindered, and that it is only affected by possible disputes after its publication in the BOE. The Constitutional Court would forget that chambers are inviolable, which means that courts cannot intervene in their functions. It may be contested only after the exercise of the parliamentary function for failure to respect fundamental rights. This is the only allowed interference. Parliamentary inviolability means that there is no judicial power that could affect its functioning.

In addition to the neglect of parliamentary inviolability, there is a restriction on the inviolability of members of the House, reflecting the right to freedom of expression, especially in Parliament. As members of the chambers, you can say a few things that if you were told as citizens you would be continuous. Here we must remember the case law of the European Court of Human Rights, which recognises the Member States a wide margin of appreciation in recognising this competence, especially in respect of the freedom of expression of parliamentarians. The European Court of Human Rights rigorously analyses and controls parliamentary interference in this freedom of expression. For the European Court of Human Rights, the restriction of parliamentary freedom of expression begins when they are called upon to violence. Perhaps the Constitutional Court should pay more attention to the latter.

Congress and the Senate should not comply with the mandate of the Constitutional Court to paralyse the parliamentary law-making procedure because such a requirement is unconstitutional. The Constitutional Court is the ultimate interpreter of the Constitution, through the legally established procedures, and not by others, on the basis of the regulatory law passed by Congress and the Senate. The defence of the Constitution is primarily for the citizens and their legal representatives. That is what we must not forget in a democracy.