The Constitutional Court, thanks to its progressive majority, has endorsed the use of the royal decrees by the Executive of Pedro Sánchez. In a resolution, it denies that the Executive has made an "abusive or arbitrary use" of the allegation of the existence of a situation of extraordinary and urgent need.
The sentence has the joint particular vote formulated by the magistrates Ricardo Enríquez, Enrique Arnaldo and César Tolosa and the magistrate Concepción Espejel, all of them from the conservative sector. They consider that the executive power dictates norms with the force of law should be an exception.
According to these magistrates, drawing up rules by the Government to the detriment of Parliament affects the separation of powers and "makes it impossible" for popular representatives to debate and, where appropriate, approve such rules, "undermining the democratic principle."
In their particular vote, they state that the decree law "is not an alternative to the law, nor is it a blank check, but rather an exceptional remedy for cases of extraordinary and urgent need."
They insist that the Constitutional Court "should not give up" on the control function of the decree laws, "since our mission -they indicate- is to guarantee the pre-eminence of the only norm that is the expression of the constituent power".
In this function of control of the decree laws, these magistrates consider that the court cannot confuse necessity with: "convenience or political opportunity or with extraordinary and urgent necessity". It is also not possible to confuse -in his opinion- the correctness of the measures with the justification of urgency, nor replace the Government in that function of justification by the allegations of the State lawyer, nor consider that justifying is the same as making apodictic affirmations or explaining measures.
The court has made this consideration during the study of an appeal presented by the PP against a royal decree of urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation.
The sentence, in which the current president, Cándido Conde-Pumpido, has been a speaker, affirms that the Government has sufficiently explained and reasoned the situation of "extraordinary and urgent necessity" that justifies the norm.
In addition, the judgment underlines that there are compelling reasons when considering "the discrete, if not insignificant results" achieved up to that moment by the legal regulation on the matter in 2007, as well as the delay that was taking place in the effective realization of equality between men and women, "which demanded immediate normative action through the elaboration of a new articulated, integral and transversal text".
In their dissenting opinion, the magistrates affirm that the need to use an urgent and exceptional norm is not justified, avoiding the processing by the ordinary legislative procedure, also taking into account that it was a norm of the "maximum relevance, which required the Government to be extremely zealous when it comes to justifying and reasoning the urgency that was the basis for its decision to resort to an exceptional rule".
