A light judicial review for an express constitutional amendment? the Spanish Constitutional Court Decision 9/2012 and the possible flaws in procedendo in the constitutionalization of budgetary stability

Abstract

This article analyzes the Auto 9/2012 of the Constitutional Court of Spain, dismissing a recurso de amparo sued by two Members of Congress against the reform of article 135 of the Constitution, which introduces at the highest degree in our legal policy the principle of budgetary stability. In line with the exposure and critical analysis of both, the lawsuits made by the appellants and the answers given by the Constitutional Court, this paper examines the possibilities of a constitutional court review of the formal constitutionality of the constitutional amendment, both in relation with the right selection of the procedure among the ones displayed in articles 167 and 168 of the Constitution, as regarding the applicability of procedural specialties to the parliamentary process of constitutional amendment (single reading procedure in plenary and declaration of emergency). It addresses, in particular, the relationship between budgetary stability and welfare state, and the impact that it might have on the right amendment procedure of article 135 of the Constitution which was passed in September 2011. The paper concludes with a discussion of the possibilities of the recurso de amparo as a procedure to conduct the formal judicial review of a constitutional amendment, and the potential effects on the amended articles that an upheld judgment for infringement of the right to stand for election of Members of Congress and Senate because of a breach of relevant amendment procedure could have, involving the violation of the right of said Members to exercise the functions of his office (ius in officium).