La iniciativa legislativa de las Comunidades Autónomas

Abstract

This study analyzes legislative initiatives statutorily provided for under article 87.2 of the Constitution of the Kingdom of Spain which its self-governing regional Autonomous Communities can bring before the Chamber of Deputies of the Spanish Parliament or the national Government, but which have received insufficient attention despite being a significant constitutional innovation. Inspection of published sources shows that experts commonly have limited themselves to such general matters as those flowing from the granting of authority to initiate legislation, or their effects at the levels of the nation�s government, deputies, and senators, whilst paying less attention to forensic examination of the authority that enables initiation of legislation at regional level. By way of complementing abundant commentaries generated by the aforementioned statutory provision this study considers it from a standpoint that attempts to integrate critical attention to pertinent matters with some proposals for resolving problems to which it has given rise, as well as with some possible modifications or regulatory models de lege ferenda. The study begins by analyzing the justification for the legislative initiative in terms of the broad framework of constitutional law, its antecedents, the main landmarks of article 87.2 that were acknowledged in the debate underlying it, and of some considerations of variants in other nation states with devolved regional powers. The study continues by analyzing the rights of Spain�s regional self-governing assemblies (raising interesting aspects, such as possible convergence between them when their intiatives are put before the national Parliament), the possibility of extension to substantive matters of wider general interest beyond those of their respective regions, and, most especially, the jurisprudential characteristics of each and every route chosen under the provisions of article 87.2, where considerations offered here imply a possibly alternative opinion to the received widsom. The study ends by reflecting on several practical and theoretical questions that arise from the exercise of procedure drawing on the provision afforded under article 87.2. The complex procedure of putting a proposal for new legislation before the Spanish Parliament is without doubt the most difficult second step, following on from that in a regional assembly (or assemblies) which already will have involved drawn-out attempts to get to grips with many intricate problems. Once at the national level, a proposal may open a Pandora�s box of problems, some substantive in nature, such as whether there might be advantages or disadvantages in bringing forward a new law suggested by a body lacking legislative powers, and others of a procedural nature, related mainly to formulating at governmental level requests for legislation that have received approval from regional assemblies. In that regard, it is worth drawing attention to an incomprehensible lack of even the most minimal procedure that might enhance the capacity of regional assemblies to pursue their initiatives in concert with the national government, which has the result of reducing to a legal vacuum their ability to take fullest advantage of the statutory provision of article 87.2, for which reason it is proposed here that further measures de lege ferenda are desirable in order that those institutions might better fulfil their purposes in an efficient manner.