La respuesta del legislador a las declaraciones de inconstitucionalidad en el ordenamiento español

Abstract

This work aims to answer a question: if the Spanish legislature can answer a declaration of unconstitutionality agreed by the Constitutional Court. Such response of the legislature has its theoretical context in the so-called counter-majority objection. If a State has a rigid constitution and a system of judicial review, the final decision will always rest in the judges, forcing the legislature to opt for a burdensome constitutional reform to impose its interpretation of the Constitution. However, the main conclusion of this work is that the legislature cannot approve a law or parliamentary act that reiterate or give effect to another law or parliamentary act previously declared as unconstitutional. This prohibition is what we have called the legislature response veto to a declaration of unconstitutionality. In first place, the paradoxes faced by the counter-majority objection are analyzed. Secondly, the main premise of the conclusión of this work is established: the normativity and supremacy of the Spanish Constitution. It is the fundamental and founding law of the Spanish constitutional order, it is the source of the sources of law and affirms its supremacy without exceptions, establishing the subjection of all citizens and public powers, something that not even the integration into the European Union has questioned. Thirdly, the position that the legislature has in the legal system is analyzed, as well as its capacity to response a declaration of unconstitutionality. In this sense, the legislature, despite the modern transformations of the legislative power, is the primary interpreter of the Constitution, it has the primary normative monopoly and freedom of configuration in the development of the Constitution. Fourth, we analyzed the position of the Constitutional Court and the general effects that article 164.1 of the Constitution confers to its sentences: Nullity as an erga omnes effect of the Constitutional Court sentences cannot be assimilated to the law or its derogation. The removal of unconstitutional laws its done with ex tunc effects and not since the date of the sentence. In the same way, the nullity of an unconstitutional law has future effects that go beyond the logical impossibility of applying an expelled norm: forbids the reintroduction of the legal mandate annulled in the sentence if not through a reform of the Constitution. However, the Constitutional Court is not a legislature and its power is subject to limits, mainly the need to support its decisions on the Constitution itself. The work concludes with an overview of the assets to make effective the legislature response veto: the already explored possibility of the amparo remedy before de Constitutuional Court against the admission of parliamentary initiatives by the Parliament's Bureau; a decentralizing proposal for the judicial review that would allow judges to inapply the laws affected by the veto, as well as the possibility of repeal the laws and provisions affected by de the veto through the incident of execution of sentences of the Constitutional Court.