The Plenary of the Constitutional Court has endorsed this Tuesday the Royal Decree Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, a rule that was challenged by more than 50 deputies from the Popular Parliamentary Group and through which paternity leave was extended.
The appeal has been dismissed by a majority of the court, although the four magistrates of the conservative bloc have announced that they will formulate a dissenting vote. The sentence, for which President Cándido Conde-Pumpido has been the rapporteur, affirms that the Government has sufficiently explained and reasoned, as required by article 86.1 of the Spanish Constitution, the situation of “extraordinary and urgent need” that justifies the norm.
In addition, the judgment underlines that there are compelling reasons when considering “the discrete, if not insignificant results” achieved up to that moment by the legal regulation on the matter, LO 3/2007, as well as the delay that was taking place in carrying out effective equality between men and women, which required immediate regulatory action through the development of a new articulated, comprehensive and transversal text, based on arts. 9.2 and 14 of the Constitution.
The Plenary confirms the existence of an adequate connection between said situation of need and the measures articulated in the royal decree-law, which affect a total of seven legal texts, aimed at putting an end to the persistence of inequalities in working conditions between men and women who inflict damage on women that is difficult to repair, and that is difficult to accept in a modern society like Spain’s.
In addition, the approved resolution rules out that the Government has made an abusive or arbitrary use of the allegation of the existence of a situation of extraordinary and urgent need.
For its part, the sentence has the joint particular vote formulated by the magistrates Ricardo Enríquez, Enrique Arnaldo and César Tolosa and the magistrate Concepción Espejel. They consider that the executive power dictates norms with the force of law should be an exception, as it affects the separation of powers and makes it impossible for popular representatives to debate and, where appropriate, approve such norms, undermining the democratic principle.
The decree-law is not an alternative to the law, nor is it a blank check, but rather an exceptional remedy for cases of extraordinary and urgent need. The Constitutional Court should not give up on the control function of the decree laws, since our mission – they indicate – is to guarantee the preeminence of the only norm that is an expression of the constituent power. In this function of control of the decree laws, the TC cannot confuse necessity with: expediency or political opportunity or with extraordinary and urgent need. It is also not possible to confuse the correctness of the measures with the justification of urgency, nor to substitute the Government in that function of justification for the allegations of the State lawyer, nor to consider that justifying is the same as establishing apodictic affirmations or explaining the measures, argue the dissenting judges.
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