1.-La relevancia de un proceso electoral
The possibility of Approving statutory decrees by the Government, as provisional legislative provisions, is admitted in the Constitution, as an Exception to the legislative jurisdiction of the Cortes General, But Limited for reasons of competition, procedure and of subject matter. There is No reference in the Rule Regulating them to the possibility of approving them According to the Time, considering between These Situations the Forecast and the Holding of Elections, in the Moments before and after the dissolution of the Chambers.
The question of the imminent Conclusion of a General Election raises the question of whether, between The faculties of the aforementioned Government, which is not yet in Office, is to Approve decrees of LAW in a programmed manner, once it has been announced and fixed the Date of The Same and Until Their Celebration. This Issue raises TWO essential questions: (I) The existence of other Legal Rules that suppose or implquen an additional organization to Those established by Article 86 of the Constitution; and (ii) the question of WHETHER a Decree Law in THAT time period in which competitive circumstances of its Programming may incur an Autonomous cause of challenge before the Constitutional Court.
In terms of the first problem, Articles 50, 65 and 66 of the Organic Law 5/1985, of 19 June, of the general electoral regime (LOREG), refer, Even in a piecemeal way, to a very frequent problem in the Comparative Law of the oldest and most advanced democracies. , As important as the issue of Campaign Finance, that Relating To the exercise of any undue influence on the Vote, as a Matter linked To the Right to the equal Protection of the elector before the Laws. The ruling of the United States Supreme Court against Gore, WAS decided on the basis of the Analysis of the Rights of the voter, not of the Rights of the candidate, with a certainly very different Approach to the already outdated Interpretation of article 23 of the Constitution of 1978, which has been set basically in the Rights of the Representative.
The aforementioned Article 50 LOREG points out The Following:
1-The public authorities which, by virtue of their legal competence, have convened an electoral process may carry out during the electoral period an institutional campaign intended to inform citizens of the date of the vote, the procedure To vote and the requirements and formality of the vote by mail, without influencing, in any case, the orientation of the vote of the electors. This institutional publicity will be carried out in free spaces of the social media of public ownership of the territorial area corresponding to the electoral process in question, sufficient to reach the objectives of this campaign.
2-From The call of the elections and until the celebration of the same, any act organized or financed, directly or indirectly, by the public authorities which contains allusions to the accomplishments or to the achievements obtained, or which uses Images or expressions coinciding or similar to those used in their own campaigns by any of the political entities concurrent to the elections.
3-Likewise, during the same period, it is forbidden to carry out any act of inauguration of public works or services or projects thereof, whatever the denomination used, without prejudice that such works or services can come into operation In that period.
4-It Is understood by election campaign, for the purposes of this Law, the set of tender activities carried out by candidates, parties, federations, coalitions or groups in order to attract votes.
5-Except as provided in paragraph 1 of this article, no legal person other than those mentioned in the preceding paragraph may carry out an election campaign from the date of the call for elections, without prejudice to the provisions of article 20 of the Constitution
This article refers to the public authorities who, under their legal competence, have convened an electoral process, that is, in the case of the general elections, the Government, prohibiting them in a very clear way to influence, in any case, the orientation of the vote of The electors. In this sense, the aforementioned article clearly includes a general prohibition, which is then specified in the following paragraphs in a non-exhaustive manner, based on the right of the elector to the equal protection of the laws and the process during the process Electoral. A reference to the lawful activities of candidates, parties, federations, coalitions or groups in order to attract votes is added to this content in the case of numbers 4 and 5. It Is The consequence of the principle of universal suffrage, free, equal, direct and secret referred to in article 68 of the Constitution, of which fundamentally derives the fundamental right of the elector to the equal protection of the laws, which is in this situation the Right directly affected.
According to its drafting, and despite its isolated nature, this is a fundamental article of the so-called electoral process, as it establishes explicit, precise and clear limits to the acts of the subjects included, among them the public authorities and, therefore, the Government. From This normative linkage derives the constitutive effect of all norms, and the duty of fulfilment, since it is neither purely indicative nor characterised as a dispositive norm. As acts prohibited and liable to be fulfilled, its execution derives its wrongfulness, and the imposition of a sanction.
Influencing is trying to alter the motivation and determination of a person, in this case, of a voter. Influence is a more general concept than machining or induction, and therefore broader. The intensity of the influence depends on the means employed and the person or persons who exert the influence, that is, of their capacity of action, which in the case of the Government, given their powers, can be described as very high. The Government’s electoral promises can be concretized in rules of obligatory fulfillment, turning the promise into reality, unlike the other contenders, who cannot do it by not having those powers, so the orientation of the vote can To rely critically on the actions close to the election, generating absolute discrimination. It is Not comparable to that mentioned any other type of influence, because in the case of the decrees electoral laws it is an anticipation of the fulfillment of the promises of the parties in obligatory rules, although provisional, directed to agree a measure With respect to an identifiable part of the electorate sensitive to its adoption. All this determinable by means of statistical, economic and social research, providing the Government with means to determine precisely the type of measure most appropriate to that end.
It Is true that the power of the Government to pass a Decree-law is carried out in exercise of a right, granted by the Constitution, but with an absolutely exceptional character, because the legislative authority resides in both Chambers. The existence of limits to this authority derives from the Constitution and the jurisprudence that has developed it. But It should be noted that the conditions of exercise of this exceptional and limited power, refer to a Decree-law, with a certain object, not to a set or battery of decrees laws that will be approved during the campaign, announced by the Government. It Is the government’s press conferences that depend on the approval of the law decrees, and not the other way around, with the two issues completely linked. In other words, the possibility of passing a Decree-law is a matter, and a very different one a governmental practice (i) that gives place to a deferred government program for its execution during the electoral process, something completely anomalous; (ii) that has not been raised before the General Courts, which are those with legislative authority; and (iii) that by its own invoice loses its essential connection with the unexpected, extraordinary or urgent situations, essential in the case of the Decree-law, because what exists is a programming announced, being evident that, by nature, effects and Scope of the measure, may exert an influence on the vote of much greater intensity than in the cases of the acts described in paragraphs 2 and 3 of that article 50 LOREG.
2-a reason for unconstitutionality before the Constitutional Court
However, there is another perspective on the issue, which is the question of the approach of such a situation as a cause of unconstitutionality in an appeal of unconstitutionality. The legal acts must have a lawful cause and the decrees laws also, and, in that aspect, it would have an invalidating relevance the use of the Decree-law in the form announced. And, firstly, because it is clear that it is not worth appreciating that extraordinary and urgent need at the same time of all the decrees envisaged and announced, because that is ontologically impossible. It would be in your case with regard to the measures of one of them, not all of them.
This element can constitute an autonomous motive of challenge, different from those relating to competence, procedure and matters included in the Decree-law, since it affects the final cause, understood as objective purpose pursued, in such a way that the Decree-law It could be unconstitutional only by the aforementioned motive, because there is an obvious intention of influence in the formation of the voter’s criterion. It Is true that this implies having to examine the concept of the cause or end of the Decree-law as an element of control of its validity, which is perfectly justified by the existence of a fundamental right, the right of the elector to the equal protection of the laws , as a very important limit to what has been called the excessive pollution partisan of the political process, by means of traditional notions on fair play and substantial justice. The rights of the Government and of the parties in the aforementioned electoral period are of inferior quality to the right to vote.
The approach of the equal protection before the law and the right to the process due to analyze the question of the decrees electoral laws from a different perspective to the strictly subjective, which is the highlighted in the debate, and that attends to the simple and poor Affirmation of the existence of the Government’s power in the Constitution, disconnected from the impact on the political process, and the rights of the Elector. However, this subjective approach is erroneous, since it is not a question of examining the general conditions of exercise of the power to dictate law decrees solely in accordance with the rights of the Government, but of the right of the elector to vote in conditions of Autonomy and freedom of determination, which is a fundamental right within the fundamental right, and which is the basis of the Democratic rule of State of article 1 of the Constitution. The perspective is therefore completely different, so at this point the question of the legitimacy of the decrees electoral laws must conclude, if you want to make authentic Constitutional Right, in the lesion evident and relevant for that practice Government of the voter’s fundamental right to equal protection against the laws.