Ordinary judges are given the power to not apply autonomic laws that contradict state laws
DANI SÁNCHEZ UGART Madrid
Softly, softly, with a resolution nobody noticed, because on paper, all it did was not admit an unconstitutionality action against a Basque law, the Constitutional Tribunal (TC) has modified the basis of the Spanish judicial system. Up until now, the only body able to resolve on whether a law was constitutional or not was the TC itself; however, after this resolution on the Basque Law on Civil Service, the TC allowed an ordinary tribunal not to apply a law of an autonomous region if a later basic Statewide law contradicted it.
In a majority resolution (that is, not unanimous) and with two dissenting votes, the TC resolved last December, that ordinary judges need not resort to the TC for appeals involving doubts on constitutionality, as pointed out by Josep Costa, jurist and assistant professor of political theory at the UPF, ON Twitter last week. Instead, they should apply state legislation directly, and thus, in practice, it is awarded a superior rank. This will lessen the workload of the Constitutional Court, but erodes the self-governance of the autonomic regions and eliminates the possibility of the autonomous Parliaments or governments to plead in favour of their legislation. “This is an unprecedented recentralizing process”, say sources from the Basque government, Albert Solé reports.
The requirements for ordinary judges to decide not to apply an autonomic law are, according to the resolution, that the later state law be basic. That means that the law in question regulates competences which the Constitution provides as being shared or concurrent by both the autonomous community and the State and on which the central administration governs the general framework. For example, in the case of trade or administrative proceedings, among many other competences, if the State approves a basic law after an autonomous community approved its own law, the former will prevail in the courts and the TC need not even resolve whether autonomous competences have been infringed by the state administration. There will be no question: State law will prevail.
“Basic laws are the spearhead for the erosion process of the autonomic communities”, said Costa to ARA newspaper. In fact, one of the sections of the Catalan Statute annulled by the TC in 2010 was that which tried to shield its competences against the basic laws which limited them (such as trade, where the autonomous communities were forced to extend opening hours for shops by way of a basic law).
The TC had already taken a step in this direction with another resolution last year, declaring that ordinary judges could fail to apply an autonomous law if this was a copy of a Spanish law, which had then been changed (therefore, not with a will to exercise its own competence). The difference in this case is that, as pointed out in the dissenting vote by the ex-vice-president of the TC, Adela Asúa, the Basque law was approved “claiming its own competence”. Furthermore, this leaves autonomous legislators defenceless; in some cases, they will not even be notified that their legislation is not being applied. Until now, when a judge brought a case before the TC (the only court competent to resolve regarding the Constitution), the latter informed the author of the law in question, who could submit arguments. However, ordinary judges need not do so and will, de facto, suspend laws without the autonomic administration being aware of it (unless they are parties to the case).
“They are changing the constitutional judicial system from concentrated (in the TC) as it was until now, to diffuse”, says costa. That is, it is as if the constitution has changed”, through the back door, though, with final resolution, where no judicial battle is possible.
The Catalan Government is examining how it will be applied
This time, the victim of the recentralizing strategy of the TC has not been Catalonia, but the Generalitat (Catalan Government) is keeping a close eye on the case. Sources from the Generalitat have pointed out that this resolution – that the constitutionality of an autonomic law- is being discussed both in and out of the Constitutional Court and that “the TC will have to further consolidate its criterion with further resolutions. In any case, we also consider that this case, depending on how it develops, can be a new confirmation of the centralizing trend by the State and that the institutional balance has tipped”. The Generalitat has also complained that the new doctrine “allows no possibility of the Parliament or government of a community to be party to a proceeding and defend the constitutionality of their law”.