Statutory Rights and the Federal System

Abstract

The protection of rights and liberties demands an element inseparable from the constitutional model of the Rule of Law. Together with the dominion of laws and the separation of powers, the axiological requisite is formed, underpinning this model of state.

In decentralized States, it is essential to establish the model of the distribution of powers in relation to the protection of rights. In the federal model, together with the necessary role of the federal state, the States stipulate a scope of power superior to that of States with a regional or autonomous model, as is the case in Spain.

In its Sentence of 31/2010, the Constitutional Court validated the existence of a recognition of rights and liberties through the Statutes of Autonomy, be it with a limited character, since the Tribunal finds that these statutory rights are not subjective rights but rather mandates for lawmakers, to differentiate them from basic rights recognized by the Constitution and, therefore, statutory rights of lawmakers in the autonomous communities. According to the Constitutional Court, this means that these rights will only be fulfilled before judicial organs when legislators from autonomous communities have passed them into law. Likewise, statutory rights are materially bound to the scope of powers within that autonomous community; that is to say, the powers recognized by the Statute are the ones that delimit the scope in which statutory rights can operate.

In this paper, we would like to make the case, firstly, for the importance of the model of the Rule of Law in the recognition of rights and liberties; secondly, for the possibility and necessity that, in Spain, the Statutes of Autonomy integrate a list of rights regulating their essential content; and, thirdly, to offer an analysis of the range of constitutionality of the inclusion of statutory rights, following the Sentence of the Constitutional Court 31/2010, which resolved the appeal to unconstitutionality filed against certain aspects of the 2006 Statute of Autonomy of Catalonia.