UNIT 5 .- GOVERNMENT AND ADMINISTRATION. RELATIONS BETWEEN THE COURTS AND GENERAL ELGOBIERNO. GOVERNMENT AND ADMINISTRATION. RELATIONS BETWEEN THE GOVERNMENT AND THE COURTS GENERAL. 1 .- GOVERNMENT AND ADMINISTRATION.
1.1 .- THE GOVERNMENT.
constitutes, with the Administration, the Executive. In our law, the designation of Government for the Council of Ministers with the President, can qualify in the top tier of all the hierarchical organization of executive power, with the Administration all levels ranging from Prime Minister down.
The English Constitution of December 27, 1978, (hereinafter EC) engaged in the treatment of Government Title IV, entitled "Government and the administration, which has been developed, with respect to the first (Government), by Law 50/1997 of 27 November, the Government (LG, hereinafter)
Strictly speaking, the Government is equivalent to Council of Ministers, and over the same Article 97 EC and Article 1 of the LG, show that the Government directs domestic and foreign policy, the Civil Administration and Military and defense of the State, exercising the executive function and authority regulations in accordance with the Constitution and laws.
The principles underlying its operation are three: the first presidential address, which gives the Prime Minister the power to determine the policy guidelines to be followed by the Government and each of the departments, the collegiality and several liability resulting from their members and the departmental principle that gives the holder of each department a wide autonomy and responsibility within their respective management.
1.1.1 .- STRUCTURE.
Under Article 1.2 ° LG, the Government shall consist of Chairman, Vice Chairman or, where appropriate, and the Ministers. As you can see, the LG closes them the composition of the government, without which, as might be inferred from Article 98.1 EC (to establish that the Government consists of the President, the Vice where appropriate, ministers and other members established by law), incorporate other elements to it.
To become a member of the Government is required to be English, of age, enjoy the rights to vote and to stand and not be disqualified from public office exercised by court order. Members of the Government may not perform representative functions other than their parliamentary mandate, nor any other public function not deriving from their office, or any professional or commercial activity (Article 14 LG), to be victims of application incompatibilities of senior members of the General State Administration (Law 5 / 2006, 10 April, to regulate conflicts of interests of members of Government and Senior Officers of the Central Government).
Finally, members of Government meet in the Council of Ministers and the Government Commission.
1.1.2 .- The President of the Government.
The President directs the action of the Government and coordinates the functions of other members of the same, without prejudice to the competence and direct responsibility in managing their (Articles 98.2 º EC and LG).
is for the Prime Minister:
a) Represent the Government.
b) Establish the Government's political program and determine the guidelines of the internal and external policies and ensure compliance.
c) To propose to the king, after deliberation by the Council of Ministers, the dissolution of Congress, the Senate or the Parliament.
d) Submit to the Congress of Deputies, after deliberation by the Council of Ministers, the issue of trust.
e) To propose to the King's call for a consultative referendum, with the authorization of the Congress of Deputies.
f) To direct the defense policy and practice in respect of the military functions under the legislation regulating the national defense and military organization.
g) Convene, chair and set the agenda for meetings of the Council of Ministers.
h) Endorse, as appropriate, the actions of King and submit, for approval, laws and other regulations with force of law.
i) lodge the constitutional complaint.
j) Create, modify and delete, by Royal Decree, the Ministerial Departments and the Secretaries of State.
k) To propose to the king the appointment and removal of the Vice-Ministers.
i) To resolve conflicts of authority that may arise between the different ministries.
m) To give instructions to other members of the Government.
n) exercise any other powers conferred by the Constitution and laws.
1.1.3 .- The Deputy Prime Minister.
Where there (there are facultative and not obligatory), the Vice President or Vice Presidents shall exercise their functions entrusted to them by the President. And the vice president to assume ownership of a ministerial department will hold, in addition, the rank of minister.
Today, on the basis of Royal Decree 554/2004 of 17 April on the Deputy Prime Minister, two of them: First Vice President and Second Vice President of the Government.
In the event of vacancy, absence or illness, will assume, in accordance with an order of priority, the functions of Prime Minister, being undertaken in the absence of such, by ministers, in order of precedence of the Departments (Article 13 LG).
The separation of the Vice (like that of the ministers without portfolio) will entail the extinction of these organs.
1.1.4 .- The Ministers.
As Ministers, Article 4 LG states that as owners of their departments, have jurisdiction and responsibility in the specific area of \u200b\u200btheir performance and their proper roles as
a) Develop action Government in the field of his Department.
b) to exercise regulatory power in matters within their Department.
c) exercise any other powers conferred on them by laws and any other provisions.
d) To endorse, as appropriate, the King's acts in matters within its competence.
addition to the ministers who hold a Department, there may be Ministers without Portfolio, who attributed the responsibility for certain governmental functions.
1.1.5 .- Council of Ministers.
Article 1 of the LG provides that the President, the Vice President or Vice-Ministers will meet in the Council of Ministers or in Government Commission.
regard to the Council of Ministers, Article 18 LG states that the Prime Minister convenes and chairs meetings of the Council of Ministers, acting as Secretary to the Minister of the Presidency.
Meetings of the Council of Ministers may have a policy or deliberative. The agenda of meetings of the Council of Ministers shall lay down by the Prime Minister.
Powers of the Council of Ministers.
Article 97 of the EC provides two primary functions of government: the general political direction of the community and the regulatory function.
For its part, based on Article 5 LG, in the we note the following general powers of the Council of Ministers as a body of government:
1) Approve the bills and referral to the Congress of Deputies or, if the Senate.
2) Approve the Draft Law on State Budget.
3) Approve the Royal Decree-Laws and the Royal Legislative Decrees.
4) Agree to negotiate and conclude international treaties, and its provisional application.
5) Send the international treaties to Parliament.
6) declare states of emergency and alarm and to propose to the Congress statement the state of siege.
7) Provide for the issuance of public debt or getting credit, when authorized by a Law
8) approve the regulations for the development and implementation of laws, after consulting the State Council and other regulations that apply.
9) Create, modify and remove the bodies of the ministerial departments.
10) Adopt programs, plans and guidelines binding on all organs of the General State Administration.
11) exercise any other powers conferred by the Constitution, laws and any other provision.
also incumbent:
1) Powers from the exercise of regulatory power.
2) Establish and abolish the Government Commission.
3) authorize transactions on the rights of Finance.
4) Determine the limit of the currency in circulation and to take any significant steps to advise the country's economic situation.
5) To determine appeals against the Council of Ministers.
6) Authorize the procurement of works, services and supplies.
During meetings whose deliberations are secret, may attend Secretaries of State when called.
Regarding the Government's legislative initiative, shall mark in the terms of Articles 87 and 88 of the EC, through the development, approval and subsequent submission of bills to the Congress of Deputies or, where appropriate, the Senate. 1.1.6 .-
Government Commission.
LG
Article 6 provides that the Council of Ministers, a proposal by the Prime Minister, decide, by royal decree, creation, modification and deletion of the Government Commission and the delegation to these specific functions that . The Presidency the same for the Prime Minister, may delegate to the Vice-President, either Vice President, there is more than one, or a Minister, on the order of precedence of the ministerial departments.
The Royal Decree of creation of an Executive Committee shall specify, in any case:
a) A member of the Government to assume the presidency of the Commission.
b) Members of the Government and, where appropriate, the Secretaries of State within it.
c) The functions assigned to the Commission.
d) Any member of the Commission which is responsible for the Secretariat itself.
may be summoned to meetings, which discussions also are secret, the holders of those upper bodies and heads of the Central Government as deemed fit.
Currently, the following Government Commission:
a) Government's Standing Committee for Crisis Situations.
b) the Government Commission for Economic Affairs.
c) the Government Commission for Regional Policy.
As collegiate bodies of government, it belongs:
a) examine general issues relevant to various ministerial departments on the Committee.
b) Study those issues, affecting several ministries, require development of a joint proposal prior to its resolution by the Council of Ministers.
c) Resolve issues that affect more than a ministry, not required to be elevated to Cabinet.
d) Perform any other functions assigned to them by law or delegated to them by the Council of Ministers. 1.1.7 .-
BODIES OF COLLABORATION AND SUPPORT OF GOVERNMENT.
are regulated in Articles 7 to 10 LG
1.1.7.1 .- The Secretaries of State.
are higher organs of the State Administration directly responsible the implementation of the Government's action in a specific sector of activity of a Department or the Prime Minister. Are appointed and dismissed by Royal Decree of the Council of Ministers, a proposal of the Prime Minister or member of the Government to whose department they belong (Article 15 LG.).
1.1.7.2 .- General Committee of Secretaries of State and
Secretaries.
As a body of study and preparation of the matters submitted for deliberation by the Council of Ministers regulating the General Committee of State Secretaries and Deputy Secretaries, to be composed of the heads of the Departments of State and the Secretaries of different Ministerial departments.
The Presidency of the General Committee of State Secretaries and Deputy Secretaries corresponds to a Deputy Prime Minister or, failing that, the Minister of the Presidency (Article 8 LG). At present, under Royal Decree 554/2004 of 17 April on the Deputy Prime Minister, the chairmanship of this Commission holds the Deputy Prime Minister.
For its part, Royal Decree 1194/2004 of 14 May, attributes its secretariat to the Assistant Secretary of the Presidency and noted that the Secretary General for Public Administration attend this Committee when matters within their purview. His
have a preparatory meeting for meetings of the Council of Ministers, having considered them all matters to be submitted for approval of this (except those determined by the performance standards of the manufacturer), and in no case can take decisions or agreements of the Government delegation.
1.1.7.3 .- The Secretariat of Government.
As a body of support from the Council of Ministers of the Government Commission and the General Committee of State Secretaries and Deputy Secretaries, shall perform the following functions:
1) Assistance to the Minister-Secretary of the Council of Ministers (the Minister of the Presidency).
2) The referral of calls to various members of collegial bodies mentioned above.
3) Collaboration with the Technical Secretariat of the Government Commission.
4) The filing and custody of the calls, agendas and minutes of meetings.
5) Ensure proper and accurate publication of the regulations and rules issued by the Government to be inserted in the Official Gazette.
The Government Secretariat is integrated into the structure of the Ministry of the Presidency. 1.1.7.4 .-
Cabinets.
bodies are political and technical support of the President Government, Vice-Presidents, Ministers and Secretaries of State, performing duties of trust members and ad hoc advice, but in any case to take actions or decisions that legally correspond to the organs of the General Administration of State or organizations attached to it. Particularly
lend their support in the development of his political work in the performance of tasks of an MP and in its relations with institutions and administrative organization.
1.1.8 .- The Government in office.
1.1.8.1 .- Appointment of the members of the Government.
appointment into account, we must distinguish between the Prime Minister and the other members.
on the appointment of the Prime Minister, Article 12 of the LG states that "the appointment and dismissal of the Prime Minister will be in the terms provided in the Constitution. Specifically, Articles 99 and 101 EC provide the following phases:
a) Proposal of the candidate.
After each renewal of the Congress of Deputies, and other constitutional cases where applicable, the King shall, after consultation with representatives designated by the political groups represented in parliament and through the President of Congress, nominate a candidate Prime Minister.
b) Exposure of the political agenda.
The nominee shall submit to the Congress of Deputies on the Government's political program that aims to educate and seek the confidence of the House.
c) Granting of confidence.
If Congress of Deputies by the vote of an absolute majority of its members, grants its confidence to the candidate, the King shall appoint him President. Not achieved such a majority, will be submitted the same proposal to vote forty-eight hours after the previous one, and trust will be deemed granted if it secures a simple majority.
d) If no declaration of trust.
If, after this vote, has not been obtained confidence for the investiture, successive proposals shall be handled in the manner provided in the preceding paragraphs.
If within two months after the first investiture vote, no candidate has obtained the confidence of Congress, the King shall dissolve Congress and call new elections with the endorsement of the President of Congress.
For other government members shall be appointed and dismissed by the King at the proposal of its President, under Article 100 EC and Article 12 of the LG
1.1.8.2 Removal of members .- the Government.
As for retirement, LG Article 21 provides that the Government shall resign after the general elections, in cases of loss of parliamentary confidence under the Constitution, or by resignation or death of the President. The outgoing Government shall continue in office until the inauguration of the new government.
The Government will provide the normal functions of the process of forming the new government and devolution of powers to it and limit its activities to release regular public affairs, refraining from adopting, unless duly authorized emergency in the interest of expressed general for accreditation so warrant, any other measures.
Specifically, the Acting Prime Minister can not exercise the following powers:
a) propose to the King the dissolution of either House, or Parliament.
b) raise the question of trust.
c) To propose to the King's call for a consultative referendum.
Meanwhile, the caretaker government can not exercise the following powers:
a) approve the Draft Law on State Budget.
b) To submit draft laws to the Congress of Deputies or, where appropriate, to the Senate.
Finally, the legislative delegations granted by Parliament shall be suspended during the time that the Government is in office following the general elections.
1.1.9 .- THE CONTROL OF ACTS AND THE LIABILITY OF THE GOVERNMENT.
Under Article 26 of the LG, the Government is subject to the Constitution and other legislation in all its actions. All acts and omissions of the Government are subject to political control of Parliament. The acts of the Government and the bodies and regulatory authorities in this Act are to challenge before the administrative court in accordance with the provisions of the Act ". Government action is challenged before the Constitutional Court in terms of the Organic Law governing the same.
addition to political accountability, the Government may incur criminal and civil liability subsidiary. The criminal responsibility of the President and other members of the Government shall be payable, if any, before the Criminal Chamber of the Supreme Court.
1.2 .- THE ADMINISTRATION.
Management is integrated with the Government in the executive branch.
She specifically referred to Articles 103 to 106 CE, developed at length by the Law 30/1992 of 26 November on the Legal System Public Administrations and Common Administrative Procedure (CAP LRJAP and thereafter), profoundly modified by Law 4 / 1999 of 13 January.
Article 103 of the EC refers to it, understood in a general sense, stating:
1) The Public Administration objectively serves the general interests and act in accordance with the principles of efficiency, hierarchy, decentralization , deconcentration and coordination, with complete submission to the law and the law.
2) The organs of the State Administration are set up, directed and coordinated in accordance with the law
3) The law shall regulate the Staff Regulations Public access to the Civil Service in accordance with the principles of merit and ability, the peculiarities of the exercise of their right to organize, the system of incompatibilities and the guarantees regarding impartiality in the exercise of their functions.
The Security Forces, under the direct dependence of the Government shall have the duty to protect the free exercise of the rights and freedoms and ensure public safety.
Article 105 EC provides that the law shall regulate:
a) The hearing of citizens, directly or through organizations and associations recognized by law in the process of implementing the provisions administrative affecting them.
b) The access of citizens to administrative files and records, except in matters affecting the security and defense of the state, the investigation of crimes and the privacy of individuals.
c) The procedure by which administrative acts must occur, ensuring, where appropriate, heard.
As to the responsibility of government, individuals, under the terms established by law, shall be entitled to compensation for any harm they suffer in any of their property and rights except in cases of force majeure, provided that harm is the result of the operation of public services.
The Courts control the regulatory power and the legality of administrative action and the latter is subordinated to the purposes that justify it.
The supreme consultative body of government is the Council of State, regulated by Law 3 / 1980 of 22 April.
2 .- GOVERNMENT RELATIONS WITH THE COURTS GENERAL.
A government relations with Parliament in Title V of the EC, which comprises Articles 108 to 116. 2.1 .-
political responsibility of government.
Article 108 provides that the Government is jointly accountable in their management policy in the Congress of Deputies. 2.2 .- Interpellations
, questions and hearing the government.
The Houses and their Committees may, through the Speaker, the information and help they need from the Government and its departments and any officials of the State and the Autonomous Communities.
The Houses and their Committees may summon members of the Government and the Government members have access to the meetings of the Houses and their Committees and to be heard in them, and may request to report to the these officials from their Departments.
The Government and each of its members are subject to the challenges and questions asked in the Houses.
2.3 .- Question of trust.
Article 112 provides that the Prime Minister, after deliberation by the Council of Ministers, may ask the Congress for a vote of confidence on his program or general policy statement. The trust will be deemed granted when you vote in favor of a single majority of Deputies.
Under Article 114.1 EC No, if the Congress withholds its confidence from the Government, it shall submit its resignation to the King, then proceeding to the nomination of Prime Minister, as provided Article 99 EC 2.4 .-
Motion of censure.
is regulated in Article 113 EC, under which the House of Representatives may require political responsibility from the government by adopting an absolute majority of the censure motion.
The motion of censure shall be proposed by at least one tenth of Deputies, and shall include a candidate for the Presidency of the Government.
The censure motion shall not be voted until five days after its submission. In the first two days of this period may be filed alternative motions. If the motion of censure is not approved by the Congress, its signatories shall not submit another during the same session.
If Congress adopts a motion of censure, the Government will submit his resignation to King, and the candidate included in it is deemed to have the confidence of the House and the King shall appoint the Chairman.
2.5 .- Dissolution of Parliament.
Article 115 EC provides that the Prime Minister, after deliberation by the Council of Ministers, and under its sole responsibility, may propose the dissolution of Congress, Senate or the Parliament, which shall be proclaimed by the King. The decree of dissolution shall set the election date.
The proposed solution may not occur when the process of a motion of censure.
not proceed further dissolution until a year has elapsed since the previous. 2.6 .-
States of abnormality in the constitutional life.
They referred to in Article 116 of the EC to provide that an organic law shall regulate the states of alert, emergency and siege. This is the Organic Law 4 / 1981 of June 1, states of alert, emergency and location.
The alarm is declared by the Government by decree agreed in Council of Ministers within fifteen days, informing the Congress Deputies meet immediately, and without whose consent shall not be extended that deadline. The decree indicates the territory to extend the effects of the declaration.
The Government may declare this state, in whole or in part of the country, whenever any of the following serious alterations of normality:
a) disasters, calamities or public calamities such as earthquakes, floods, fires, urban and forest or major accidents.
b) health crises such as epidemics and severe pollution situations.
c) cessation of special utility community.
d) situations of shortage of staples.
Following the declaration of this state of alarm, among other measures may be imposed extraordinary services to officials, officers and members of the regional police forces and local temporary requisition practice all kinds of goods and impose compulsory personal services; intervene and temporarily occupy industries, factories, shops, farms or premises of any nature, except private homes, limit or ration the use of services or consumption of staples, etc..
The state of emergency is declared by the Government by decree agreed in Council of Ministers, with the authorization of the Congress of Deputies. The authorization and proclamation of a state of emergency must specifically state the effects thereof, the territory to which extends the duration, not exceeding thirty days, renewable for another period, with the same requirements.
This state can be declared when the free exercise of the rights and freedoms of citizens, the normal functioning of democratic institutions, the public services essential to the community, or any other aspect of public policy, should be so severely altered that the exercise of the powers ordinary is insufficient to restore and maintain.
And during its term may derogate from certain fundamental rights.
The state of siege is declared by the absolute majority of the House of Representatives a proposal solely on the Government. Congress shall determine its territorial scope, duration and conditions.
This condition is declared when there is or threatens to cause an insurrection or act of force against the sovereignty or independence from Spain, its territorial integrity and constitutional order, which can not be solved by other means, allowing the suspension of certain fundamental rights and the adoption of measures planned for the state of alarm.
Under the contract, the Government, which directs the military and defense policy, assume all of the special powers provided for herein and in the Organic Law 4 / 1981, designating the military authority, under his direction, to be executed appropriate measures in the territory to which the state of covers, and remaining civil authorities in the exercise of the powers were not conferred upon the military authorities. Moreover
shall not proceed with the dissolution of Congress while any of these states, the Chambers being automatically convoked if they are not in session session. Its operation, as well as the other constitutional powers of the state, not be interrupted for the duration of these states. Dissolved
Congress or the expiry of their mandate, if there were any situations that give rise to any of these states, the powers of Congress shall be assumed by its Permanent Deputation.
The declaration of a state of alert, emergency and siege shall not affect the principle of responsibility of the Government and its agents recognized in the Constitution and the laws.