Comments on ComparativeConstitutions.org: The Spanish Constitutional Court faces direct demo...

We experienced a similar controversy in Puerto Ric...

2009-09-27T09:36:49.702-05:00

We experienced a similar controversy in Puerto Rico a few years ago regarding the transformation of the legislative branch from an American style bicameral system to a single chamber. On 2004 our Legislature authorized a popular referendum to be held during 2005 on the question whether to amend the Constitution to adopt a unicameral system. A majority in favor of the amendment would have required the approval by the Legislature of a specific text of amendment and that would then be subject to a second referendum during 2007. The first referendum was held on 2005 and 83 percent voted in favor. However, the Legislature, now dominated by a different political party, refused to pass an enabling statute for the second referendum, and the issue was taken to court. The controversy was similar to the one described by Victor in the sense of the highest court judging on a matter already decided through a mechanism of direct democracy. The PR Supreme Court ruled on 2007 that the Legislature was under no obligation to pass legislation enabling the second referendum because the procedure established on the 2004 act was unconstitutional. Under our Constitution a two thirds majority of legislators is needed to submit an amendment to voters. The PR Supreme Court concluded that the 2004 act was a deviation from the constitutional text and that the Legislature could not be compelled to start a formal amendment process. In so far as the judicial power was being asked to order the legislative power to legislate, the suit raised the type of political question controversy usually avoided by courts, at least under US constitutional law. The decision was heavily condemned by those who had trusted the judiciary as a last resort to vindicate the will of the people of PR.

Unlike Spain in which the outcome of direct democracy, the new Statute of Autonomy of Catalonia, was final and the Constitutional Court is being requested to stop the process, in PR plaintiffs were trying to persuade the PR Supreme Court to force a constitutional process upon the Legislature based on the outcome of direct democracy, the results of the 2005 referendum. Moreover, although the 2005 referendum was indeed direct and democratic, it was more political than legal in nature. Why the Legislature enacted in 2004 a statute enabling a popular referendum asking voters just for their preferences, instead of adopting legislation to start a full process of constitutional amendment. Well, perhaps because the political party then in power only had a simple majority of votes in the Legislature and lacked the two thirds established by the Constitution. Thus, not being able to comply with the constitutional amending process, those in power at the time opted for a simple statutory based procedure hoping that a favorable result in 2005 would create a political momentum forcing the legislators to pursue the constitutional way through a referendum in 2007. It did not happen for several reasons. In 2005 the Legislature was in hand of a different political party who were unwilling to go unicameral. Further, the favorable results of the 2005 referendum were reached with a voter turnout of just 22 percent in comparison with 80 percent during the last two general elections.

I was personally in favor of the proposal and I do think that the mechanism used in 2004 was a legitimate way to force the issue on the next Legislature. In that sense, I believe that the inaction of the Legislature since 2005 through 2007 was pernicious to the idea of direct democracy. However, I also think that the problem was political in nature and not subject to judicial review. I offer this case as an example of the complexity behind some direct democracy processes and how courts deal with its outcomes.

Since the author said that it would be interesting...

2009-09-26T03:09:07.776-05:00

Since the author said that it would be interesting to gather some examples on how courts around the world treat laws passed in a popular referendum, I want to add a case from Germany:
In Hamburg, which is a state of Germany, a referendum was passed requesting the Senate (which is the administration of Hamburg) to guarantee that the state hospitals remain property of the state. Nevertheless, the State Parliament passed a law transferring the state’s hospitals to a new (public) corporation. This law was challenged in the Constitutional Court of Hamburg. Petitioners argued that the law violated the referendum and was therefore invalid.
The Constitutional Court held that laws passed in a referendum and those passed by parliament are of the same legal rank and that laws passed in a referendum can be changed by parliament at any time. The other way round, a law passed by parliament can be changed in a referendum. And I am pretty sure that one can say, that because of the same legal rank of parliamentary laws and referendum laws courts are able to strike down the latter as well as the former.

"The second interesting issue that has been d...

2009-09-24T17:49:11.595-05:00

"The second interesting issue that has been debated is this: is it acceptable for the Constitutional Court to pass judgment on a law that has been approved not only by two democratic Parliaments (the Catalan and the Spanish Parliaments), but also by the people themselves in a referendum?"

I think there are two questions to be answered here, (1) when should judges defer to 'popular sovereignty', and (2) where does the locus of popular sovereignty lie, Catalonia or Spain as a whole?

Issues of self-determination are an interesting intersection of law and politics. I would suspect that the Constitutional Court, as a creature of the Spanish Constitution, would have to take the view that the Spanish people are sovereign, but a Catalan court might disagree. It would be interesting if the Constitution Court struck down the statute but the Catalan courts decided not to recognise the decision.

If we assume that it is the Spanish people alone who have the right to decide Catalonia's system of government then the Constitutional Court striking down the new Autonomy Statute isn't that problematic. The constitution is the supreme law and was enacted by the people (by plebiscite) so its legitimate for it to prevail over an act of parliament. "The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

The fact that the Autonomy Statute has come through such a long process means that striking it down would be politically constroversial and embarrassing. Maybe the Constitutional Court should be allowed to review bills before they become law, like the French system, to avoid this kind of situation.

"Should the Court disregard the Partido Popular´s arguments, given this party´s inconsistent behaviour?"

The Partido Popular has brought the case, but presumably if the Constitutional Court were to strike down the statute it would do so not for the benefit of the PP but to vindicate the interest of the Spanish people in seeing the constitution upheld. So I don't think it should really matter if the PP have dubious motives or are hypocrites.

"What will happen with the Andalusian provisions, if the Catalan provisions are struck down?"

In a common law system this wouldn't really be a problem. The decision would become a precedent and before long someone would bring a case that would lead to the other laws being struck down. (But then of course in a typical common law system the whole context would be different as there'd be no abstract review).