Constitutional Reform in Spain: Processes and Procedures

Posted on Dec 19, 2024 in Law & Jurisprudence

The Initiative to Reform

The initiative to reform forwards Article 166, the provisions of Article 87.1 and 2, for the legislative initiative. In accordance with this reference, the following have a constitutional reform initiative:

• The Government
• The Congress of Deputies
• The Senate
• Legislative Assemblies of the Autonomous Communities

Legislative initiative on constitutional reform is excluded, except in cases accepted by the Constitution.

• Government: The initiative takes shape in a project approved reform articulated in the Council of Ministers and is submitted to Congress, accompanied by an explanatory memorandum and the necessary background.
• Congress of Deputies: Must be subscribed by two parliamentary groups or one-fifth of the deputies, and their processing requires the consideration by the plenary of the House.
• Senate: Must be submitted by at least fifty senators who do not belong to the same parliamentary group.
• Legislative Assemblies of the Autonomous Communities: Can be exercised through two ways:
  • Request the Government of the adoption of a draft constitutional reform, in which case it would be treated directly without going through the consideration that affects only the propositions of law.
  • Referral to the Bureau of the Congress of a proposed reform, and delegate a maximum of three Assembly members responsible for its defense. If this option is used, the reform proposals also need to be dealt with after the consideration by the full Congress.

In any case, the autonomy statutes and regulations of the Assemblies of the Autonomous Communities regulate the specific requirements for formalizing constitutional reform initiative.

Reform Processes

Simple Procedure

Article 167 regulates this procedure for partial modification of the ordinary and simple parts of the Constitution, i.e., non-EC Article 168.1. In principle, the initial steps of the simple procedure are those of the legislative process, but the Constitution has provided special features:

“The reform projects must be approved by a majority of three-fifths of each House. If no agreement is reached between them, a Joint Committee will be created to submit a text to be voted on by the Chambers. If approval is not obtained by the above procedure, and provided that the text would have had the vote of a majority of the Chambers, a two-thirds majority may approve the reform. Once approved, the reform will be put to a referendum for ratification at their request, within fifteen days of its approval, a tenth of the members of either House.”

We can summarize the simple process of constitutional reform:

• If the text of the constitutional amendment is approved in both chambers by a three-fifths majority, the reform is approved, with the possibility of subjecting it to the optional referendum, which we will comment on later.
• If the Senate does not approve amendments to the text of Congress, but the final vote does not obtain a three-fifths majority, the reform is rejected.
• If the Senate passes a resolution amending the text of Congress, but a final vote on the amended text does not achieve the three-fifths majority, the reform is also rejected.
• If by the above, you get a three-fifths majority in the Senate, and therefore, the amendment passed in the Senate does not match the Congress, an agreement between the Chambers will be sought with the creation of the Joint Committee, which will draft a consensus text to be submitted in a new vote.
• If the Joint Committee cannot achieve agreement among the majority of its members, the reform is stalled.
• If there is agreement of the Joint Committee and a joint text is drafted, it is submitted to each chamber. This raises several possibilities:
  • The Congress does not get the three-fifths majority, with which the reform is rejected.
  • It gets a three-fifths majority in Congress and the Senate, the reform is approved.
  • It obtains a three-fifths majority in Congress but not in the Senate. In this case:
    1. If it does not get an absolute majority in the Senate, the reform is paralyzed.
    2. If it gets a majority of the Senate, it is forwarded to Congress.
• If Congress does not approve the text submitted by the Senate by a two-thirds majority, it is blocked.
• If Congress approves it by a two-thirds majority, it is adopted, with the possibility of submitting the text to an optional but binding referendum.

If a constitutional reform is approved by Congress, it may be possible to hold a referendum for ratification at their request in two weeks, by at least one-tenth of the members of any Chamber. Some authors raise if the possible dissolution of Parliament before its members have been able to use his constitutional authority to request the holding of a referendum. Torres del Moral considers this possibility should be excluded, not being acceptable for the majority involved the Government to dissolve the Houses before it is decided to carry the endorsement. Either way, once the constitutional reform is approved by Parliament, in any of the formulas discussed and concluded, in his case, the referendum result is affirmative, the King promulgates the reform and it is published in the Official Gazette.

Aggravated Procedure

Article 168 provides the special procedure of reform that is followed for the complete revision of the Constitution or the part that affects the parts considered as fundamental. The areas requiring this procedure are:

• Preliminary Title, contains the fundamental political principles of the political regime that the Constitution instates.
• First section of Chapter II of Title I, regulates the fundamental rights and public freedoms.
• Title II, regarding the Crown.

This selection of materials is unfortunate, according to Torres del Moral, by leaving out Articles 10.1, 14, 53, 66, 97, 103, 117, 137, 159 to 166, and even the constitutional reform of Article 168, aggravated. In any case, Article 169 EC provides that:

“When he proposes a major revision in whole or in part, it shall be approved by a majority of two-thirds of each House and the immediate dissolution of the Cortes. The newly elected Chambers must ratify the decision and proceed to examine the new constitution, which must be approved by a two-thirds majority in both Chambers. Once approved by Parliament, it will be submitted to a referendum so that it can be ratified.”

Most important aspects of this case:

• The courts have to proceed to adopt the principle of reform by a two-thirds of each House. This first phase raises some questions of doctrine, and, given the constitutional language, whether or not to submit an articled text for parliamentary debate.
• Presented the project or the proposal of reform, the courts rule on the principle of reform (the need), this calls for a two-thirds of each House and in this process, both the Constitution and parliamentary regulations are shown hard because any discrepancy paralyzes the reform, as the courts have to reject or accept in block.
• Accepted the principle of reform, there is the immediate dissolution of the Parliament and call for new elections.
• Approval by the Chambers of the decision previously dissolved by the Chambers. For this procedure, the Constitution does not specify the required parliamentary majority. The RS requires an absolute majority of the members of the House and is silent RC (simple majority suffices). The doctrine states that this process should be required for a two-thirds majority. Again, the rejection of the decision taken by the previous cuts in any of the chambers causes the lock of the constitutional decision undertaken.
• Constitutional decision is passed to the study of the new constitution (terms not very lucky) because at this stage there is a new constitution. After that, we proceed to vote on the text that needs to be approved by a majority of two-thirds of the Chamber.
• Approved text by Congress is referred to the Senate, where approval also requires a majority of two-thirds of the House. In case of discrepancy of the houses in the matter of finalizing the text, neither the Constitution nor the Regulations provide for ways of resolution. A literal and systematic interpretation of constitutional provisions leads us to consider that there is no special formula for resolution of discrepancies between the chambers, so that in the event that the proposed text does not get the two-thirds majority in each House, it will be understood that the reform failed, which moreover, is fully consistent with the purpose of impairing its review of Article 168.
• Another important issue is the scope and extent of constitutional review in relation to the adoption of the principle of reform. Aparicio wondered if the new cuts that arise after the dissolution of the above “may be extended or, if necessary, restrict the principle adopted by the latter and in turn ratified by them?”. This problem does not arise in the complete renovation since it leads to a new constitution, which leads us to the extent possible to review or partial constitutional reform on the principle of whether the courts are tied to their own actions. When the final version has deleted some provisions, the Courts project will eliminate the provisions thereto (as amended). More problematic is the possible extension of the review provisions not covered by the principle, which refers to the constitutional nature of the courts, which could pass as wanted without any procedure, but this is the case when limited constitutional power up Constitution.
• Approved by the reform by the courts, the text is submitted to a referendum of the Nation for ratification in this case is mandatory or compulsory course, also binding.
• After the ratification of the reform in a referendum, should the enactment by the King of the reform and its subsequent publication in the Official Gazette.