The embryo of what would later become the Temporary Solidarity Tax for Great Fortunes (IGF) was an amendment presented in the Congress of Deputies by two Parliamentary Groups: the Socialist and United We Can. It was an amendment to the Law Proposal for the establishment of temporary energy taxes and credit institutions, a Proposal elaborated by the same Parliamentary Groups that would later formulate the amendment related to the IGF. This system of production of legal norms in two successive phases and by intermediary means is the last cry in the art of legislating of the so-called Spanish left. For me, a mocking pseudo-left for its excessive fondness for the game of hide and seek. The trileros, with their continuous contempt for national sovereignty, need, in order to stabilize themselves in Sofía Mazagatos’ chandelier, to tease the rule of law every day.
Until 2017-2018, the legislative initiative was a government monopoly. The Executive approved a Bill and sent it, for processing and, where appropriate, approval to the Congress of Deputies. Not now (almost never). Now the Government moves its pawns -the parliamentary groups that support it in the Lower House-, which do -really receive them by endorsement of the Mandolas laws vicariously. The groups appear, then they hide and, finally, they reappear to put the icing on the cake, in an untimely and surprising way. The red and purple parliamentary groups are puppets of Maese Pedro, the Organist.
The Organist’s preferred tool is not the keyboard or the pegs but the Law Proposal. Who wins and who loses with the use and abuse of said instrument? The Government wins, since in this way it avoids the reports of the high advisory bodies of the State (not binding, although they are mandatory in the Bills). In a cunning and crooked way, the norms parade down the catwalk dressed in the immaculate tunic of maidens, perfect and spotless, since -before the forced non-appearance of the Council of State or the Council of the Judiciary- there are few who are in a position to to put technical-legal repairs to the laws. Who loses? Naturally, the deputies and senators (and indirectly the citizens), who lack essential help to know and place the object of parliamentary debate in the proper context. Furthermore, this “art” of legislating produces an irresolvable paradox. Our constitutive power opted for representative democracy to the detriment of direct democracy, due to its instinctive distrust towards the “demos”, the people or the mob (or whatever the thing is called). And now it turns out that many parliamentary representatives not only come to the seat from the family churrería, but also practice the oldest trade in the world – professional politics – without the help of the most qualified in the place. Whoever understands, raise your hand.
But the attacks on the quality of the laws do not end here. The same parliamentary groups do not respect the unity of time. They unfold like snakes and, while their Bill is being processed, one or several amendments are introduced into it that leave parliamentary minorities in a chopped ball and with the same face that cows make when, without knowing their destination, they put them in in a van and embark on their first and last trip to the slaughterhouse. But, the reader will ask, why is this procedure full of pitfalls?
legislation of a vicarious nature? I will try to answer this question succinctly and clearly.
The amendment is a (eventual) part of a legislative procedure. It is a piece of second order that requires, as a condition of possibility, the prior existence of a bill or bill currently being processed in Congress or the Senate. The constitutional legitimacy of the amendment demands a relationship of homogeneity with the content of the future norm.
The amendments do not create anything. They merely mean expectations of change in the legal fetus that develops in the parliamentary womb from which will emerge, if God and the parliamentary majority so wish, the legal creature. They can also be abortive artifacts, such as full amendments with return of the text (without proposing an alternative text). STC 119/2011, of July 5, highlights the subsidiary or incidental nature of the amendments (FJ 4). This quality reveals the legal abuse that “creative amendments” entail, such as the one that the IGF has come up with and the most scandalous (failed) attempt by the Government to sneak in a modification of the organic laws of the Constitutional Court and the Judiciary. in a legislative initiative to reform the Penal Code. In both cases, the parliamentary groups “embedded” the amendments in a regulation in course of processing whose content was totally alien to the purpose of the amendments.
In the words of the TC: “Only what has already been defined is amended […], the amendment cannot serve as a mechanism to give life to a new reality, which must also be born from a new initiative.” The amendments do not allow more than the discussion for their acceptance, rejection or compromises. They do not go further because they prevent the participation of other minorities to present amendments of a different meaning to those of the majority. The rights of the exceptions would not have been violated if the content of the amendment had formed part, from the beginning, of the Law Proposal. As the Court also says (STC 136/2011, FJ 6), “in no case, the right to amend the articles can distort the opportunity, principles or spirit of the bill or bill, once passed… the debate to take it into consideration [de la Proposición]”. And it continues: “The exercise of the legislative power of the Chambers must be contracted to the matter and object of the legislative initiative.” Item more: Once an initiative has been accepted by the Chamber as a text for deliberation, its purpose cannot be altered through amendments to the articles” (FJ 8). The Regulations of the Congress of Deputies require that the amendments be on the text of the projects or proposals of law that constitute the object of the legislative initiative.
The two amendments are, in reality, real Propositions of Law in disguise. This leads the Constitutional Court, in the aforementioned sentence (FJ 6), to a conclusion that does not admit of a reply: “Once a legislative initiative is accepted by the Chamber or Legislative Assembly as an object of deliberation, its object cannot be altered through the amendments to the articles, since this function is fulfilled, precisely, by the already completed process of amendments to the entirety, which cannot be reopened.” Law proposals “at the wrong time” or “a la milanese” (hidden under a batter that bears the false title of “amendment”) directly violate the fundamental right of parliamentarians to exercise their public office without obstacles, the so-called ius in officium (article 23.2 CE). And also, in this case indirectly, the right of citizens to participate in public affairs, through the representatives they designate (article 23.1 CE).
The person responsible for the constitutional violation is the Table of Congress (or the Senate), dominated by the Government through its parliamentary groups, when admitting the amendment. With the aggravating circumstance that the Board never justifies or motivates its decision to give the green light to the amendment. Nor does it make the essential judgment of homogeneity. Taking advantage of the fact that the Pisuerga passes through Valladolid, I believe it is my duty to warn that the amendment that approves the “tax on the rich” does not keep any homogeneity with the Law Proposal in which it is inserted, since it regulates two non-tax patrimonial benefits .
The “extemporaneous” amendments are similar to an apple legally prohibited to companies and neighborhood communities. The legislative process is determined in the parliamentary regulations. The traps that surprise and catch the community members with the wrong foot are not legal. All the points to be discussed in a meeting must be expressed in the agenda. It is not worth the president or the administrator of the community to include the section “requests and questions” in that order. It is forbidden fruit, and well prohibited, by law.
Finished. Amendments that are not homogeneously related to the purpose of the legislative initiatives contribute to the democratic deficit and threaten the political pluralism of which the different voices gathered in Parliament are an expression.