Decree Law: Articles 82, 83, and 85 Explained
Decree Law (Arts. 82, 83 & 85)
Legislative Power of Courts
Courts hold legislative power and can delegate rule-making authority to the Government.
This power is constitutionally granted, allowing courts to delegate legislative authority to the Government in specific cases.
The only limitation is that the Legislative Decree cannot overstep the Organic Act.
Types of Legislative Decrees
- Innovators: Originating from Basic Law, these decrees create new legal standards by formulating detailed texts.
- Collectors: Derived from ordinary law, these decrees consolidate existing legal rules on a subject without creating new standards.
Delegation Conditions
Delegation must occur through basic or ordinary law, explicitly stated, with a specific timeframe for exercise.
The Constitution prohibits the Government from further delegating this power.
The delegation expires upon use. If the Government issues a decree within a shorter timeframe than allotted, it cannot issue another, even if incomplete. A minority view suggests otherwise if there’s no contradiction.
Framework Laws
Framework laws cannot authorize amendments to themselves or empower retrospective rule-making. They must define the purpose, scope, principles, and criteria for legislative delegation. Non-compliance renders the decree unconstitutional.
Ordinary Law Specifications
Ordinary law should specify whether to create:
- A legislative decree that merely collects and juxtaposes provisions without altering their scope.
- A decree that harmonizes standards, clarifying requirements without changing the rules, as it doesn’t create new legal standards.
Uncollected provisions in a legislative decree are arguably repealed, making the decree exclusive. However, it’s simpler to consider them still applicable.
Art. 82.6: Control of Legislative Decrees
Article 82.6 outlines two forms of control:
- Political (non-mandatory): Courts review the decree for constitutionality, adherence to deadlines and rules, completeness, and proper harmonization. Unconstitutionality doesn’t invalidate the decree but allows courts to raise the issue to the Constitutional Court or pass a repealing law.
- Judicial:
Legislative decrees, as laws, fall under the Constitutional Court’s jurisdiction. However, Art. 82.6 mentions “courts,” suggesting ordinary courts also have a role. Interpretations vary:
- Some argue the article only addresses “competence,” limiting control to the Constitutional Court.
- Others cite Art. 163, which allows any court to question a law’s constitutionality and refer it to the Constitutional Court, the ultimate authority. This limits ordinary courts to initiating the process.
- A third view allows regular judges to disregard clearly unconstitutional decrees violating constitutional requirements (e.g., encroaching on reserved areas or issued late).
Some commentators argue that if a decree doesn’t meet the delegation requirements, it’s not a legislative decree but a regulation under government statutory authority, thus controllable by ordinary courts.