Parliamentary control and appointmet of Constitutional Bodies in Spain: theory and practice

Abstract

With a view to appointing candidates with technical capacity and professional excellence, the parliamentary appointment mechanisms of the highest State bodies are constitutionally regulated in ways that express the need to achieve a reinforced consensus among the political forces represented in the Chambers. Likewise, by giving them a longer duration, those regulations aim to separate the appointees’ mandates from the parliamentary cycle. These norms appear to be based on a common substratum: to provide a qualified democratic legitimacy to instances of a countermajoritarian nature that, by definition, lack such legitimacy. In Spain, the effects of these constitutional provisions, as well as their subsequent regulatory development, have largely been confined to legal theory. In practice, however, the situation is persistently and increasingly pathological. The constitutional sense of broad majorities has been altered completely by the implementation of a quota system in which the candidates are unilaterally set and reciprocally accepted. This modus operandi, moreover, relegates the participation of the Chambers in the elective processes to the role of 'stone guest'. The democratic legitimacy conferred by its exercise, therefore, is circumscribed to a pre-eminently formal sphere. Likewise, the mandate periods have lost their temporal certainty, in such a way that the extensions have become the rule and timely renewal the exception. The article argues, therefore, that a recuperation of the Constitution’s design is an urgent requirement...