What are we talking about? The amparo remedy was conceived as an additional and last guarantee of fundamental rights, an instrument that can be activated when the others have not worked properly.
It is a unique and extraordinary resource that can only be used to request that the Constitutional Court restore the injured fundamental right. It is the last means of protection against violations of rights and freedoms, and any natural or legal person who invokes a legitimate interest against any action by public authorities and, therefore, also against acts or decisions, is entitled to file it. of the Courts or any of its bodies that directly violate the rights and freedoms subject to constitutional protection.
The purpose of the amparo remedy is, therefore, the protection of rights and freedoms. There is no amparo appeal against acts and regulations that have been incorrectly applied unless they clearly infringe a fundamental right. Even less can the amparo appeal be used to stop some amendments that parliamentary minorities consider contrary to their interests.
In the amparo appeal that is being debated, it is not appropriate to claim the precautionary suspension of the agreement of the Justice Commission table. For it to be so, those interested in the appeal should demonstrate that the contested agreement irreversibly damages their right as deputies, and it does not seem that the execution of the contested parliamentary act, habitual in the operation of the Chambers, can definitively damage the rights of the minority, since the aforementioned parliamentary act does not have to cause damage to them that is impossible to repair. There is always the possibility that the law does not reach the necessary majority. It is also possible to make the final estimation of the amparo requested and, if this is not the case, the subsequent appeal for unconstitutionality will always be possible.
The amparo appeal procedure begins with a lawsuit, which must pass an admission procedure in which compliance with the formal requirements and the relevance of its content are analysed. If the claim is admitted, in this case by the plenary session, it must notify the proceedings to the Public Prosecutor and to the parties in person, as is the result of article 56.6 of the Organic Law of the Constitutional Court. If it does not do so, it has to be considered and justified in a very exceptional way, because the decision directly affects the rights of political participation of the deputies and senators who have approved the amendments.
Following the admission process, or before, and, in any case, before the Plenary decides on the application or not of the precautionary measures, the Court must resolve the challenges, that is, the requests of the parliamentary groups that They request the abstention in the deliberations of the appeal of the two acting magistrates proposed by the previous government.
The organic law of the Constitutional Court states that challenges must be heard by the Plenary and refers directly to the organic law of the Judiciary, which in its articles 217 and following establishes that those judges or magistrates who have a "direct or indirect in the lawsuit or cause", which is undoubtedly applicable to these two acting magistrates, since their continuity in the post depends on whether the plenary agrees to the precautionary suspension of the appealed act, which in this case would consist, nothing more and nothing less, than in the suspension of a legislative process pending its approval by the Senate, producing a serious obstruction in the sovereign functioning of the chambers.
It must be taken into account that the general interest favors the execution of the acts and decisions of the public powers, protected, as the Constitutional Court points out, by the presumption of legality and veracity. To a greater extent when they are, as in this case, acts originating from parliamentary bodies that are guaranteed by the democratic principle of parliamentary autonomy.
Agreeing the precautionary suspension of the processing of the challenged organic law proposal, and even more so with the vote of the two challenged magistrates, would mean a serious and disproportionate intervention, and also an unnecessary one, in the right of political participation of the majority of the two chambers. before the parliamentary will has been definitively configured with the vote in the Senate.
The precautionary suspension of the parliamentary processing of this law would anticipate the resolution of controversial issues specific to the merits of the appeal, thereby anticipating the result of this, and this is sufficient to proceed with its denial.
That's right, obstructing the functioning of Parliament by agreeing to the precautionary suspension of the parliamentary processing of a bill would be as much as turning the amparo appeal into a mechanism for prior control of constitutionality, recovering an intervention system that is not provided for in the law of the Constitutional Court, since in its day it was repealed precisely to stop the parliamentary obstruction that was taking place.
There is no doubt, in this case it is intended to use the measure that allows the suspension of the appealed act in an externally legal way, but with the purpose of damaging the interests and rights of third parties protected by the Constitution, causing not only personal damage, but also social damage. , by violating popular sovereignty through parliamentary obstructionism whose sole objective is to prevent the necessary renewal of our institutions.
In short, if the nature and scope of these measures that allow the suspension of the processing of a law in cases that, like this one, hide the clear political intention of blocking the renewal of the Constitutional Court itself, is extended, it would in fact assume part of the democratic power of Parliament, being able to condition the processing and approval of laws. One more step on the path of weakening popular sovereignty and deepening the process of disfigurement and fragility of our assemblies.
Faced with this situation, the legitimacy of origin, authority, competence is no longer enough to justify the action of the Constitutional Court. It is not enough to agree on decisions by majority, it is also essential to comply with the legitimacy of the exercise, legitimacy that requires giving a reason for each of their actions and not only legal or expedient reasons.
The moment demands that the Constitutional Court explain and justify each of its actions as the best, the most appropriate, also relying on the idea of citizenship and without covering its decisions in artificially complex language, saying things that way, frequent in the legal world, full of obscurities and claims of little value.
It is necessary, and more so in cases like this, that the Constitutional Court justify itself before everyone, responding to objections and demonstrating that its actions are consensual, independent, adequate and democratic.
