The same conservative majority that blocks the renewal of the leadership of the Judiciary and the Constitutional Court, has just paralyzed the processing of a legislative reform because it considers that irreparable damage is done to the PP deputies who requested very precautionary measures, within the an appeal for amparo in which they say that their fundamental right to exercise their representative function has been violated. The reason: two amendments have been processed in Congress to modify the laws of the Council of the Judiciary and the Constitutional Court, which have no connection with the original proposal, to reform the Penal Code. They do not invoke, therefore, that they have been prevented from intervening in the procedure, of course, and the Senate is still missing, but rather that the so-called dogma of the homogeneity of the laws, the coherence of their content, something paradoxical in times of laws of accompaniment and buses of the most varied.
It was a crude pretext. The maneuver was intended, and has been, not so much to suspend the entire initiative as the two incorporated amendments that were going to promote the replacement of the TC magistrates with their mandate expired and forcing the conservative members of the Council to renew said body. Precautionary justice, strange to the proceeding of the TC, has been used to attribute the ability to veto suspensively a bill, setting a fatal precedent. And by the way, send a notice: the conservative majority wants the TC to maintain a more political than legal role, as was already highlighted during the intricate Catalan process.
Because, certainly, the increasing exacerbation of constitutional control over parliamentary activity is not from now. For some time now, in certain judicial sectors, the idea that all political activity, not only that of the Government, must be auditable in order to put an end to what they consider to be resistant immunities, has been imposed. Also, as was seen in Catalonia, there are those who consider it necessary to take advantage of the odd position of the Constitutional Court within the system of division of powers, to influence the political direction of the State, by way of attributing more jurisdiction with the excuse of the stubborn breach of its resolutions.
Thus, for some years it has been making decisions that interfere with internal parliamentary acts, which are therefore not definitive. For example, attributing to the members of the tables the obligation to contrast the initiatives with their mandates or their previous doctrine, conferring functions of TC, and not mailbox. Or granting legal value to merely declarative initiatives or political impulse. Or, finally, abusing the functions of execution and surveillance of its resolutions, after an ad hoc reform of the TC law of 2015, promoted by the PP, to even resort to criminal proceedings.
The affected initiatives are about the monarchical form of the State, territorial integrity, or, as now, about the configuration of the constitutional bodies. But even the TC had always defended the presumption of constitutionality of Parliament's acts and the internal effects of mere processing acts. And, at a more substantive level, that the Constitution protects the right to promote any political idea, even when it does not coincide with its postulates, based on the democratic principle, that our legal system does not respond to a model of militant democracy and that it does not there is a normative core that is inaccessible to constitutional reform, as long as it is done peacefully, with respect for fundamental rights and regulatory channels, and in terms that do not exclude constitutional reform procedures.
In other words, the Constitutional Court is the guarantor of the stability of the institutional system, and Parliament is not an unrestricted body that in the end can decide everything normatively or politically, although it can debate it. Because, unlike the Constitutional Court, which has functional legitimacy, as a guarantor of the supremacy of the Constitution, through technical and not political procedures, Parliament enjoys direct democratic legitimacy and for this reason it can permanently update the constituent will in the framework of an open and flexible Constitution by definition. It is one thing for the Rule of Law to pursue the submission to the Law of all public powers, including Parliament, and another for its scope of freedom to be restricted and the government of judges to be imposed.
