The defence of the democratic constitution in extraordinary circumstances: the law of exception in comparative law and in spanish constitutional history

Abstract

In this paper we examine the appropriateness and significance of the law of exception in the Spanish constitutional order. For this, we have examined the models of Comparative Law that Spain has followed to restore its disturbed constitutional order. Basically, historically, concern arose at the time of North American and French Revolutions of how to incorporate into the Constitution the institutions related to their protection. British singularity was also manifested in the way of understanding and including specific protection for the defence of the Constitution and the law of exception, with institutions such as martial law or habeas corpus. The suspension of habeas corpus as an extraordinary instrument of protection of the state organization was considered in the American Constitution of 1787, and is thought of as a precedent of Article 55.1 of the current Spanish Constitution of 1978. During the period between 1812 and 1869, the law of exception contemplated in Spanish Historical Constitutions covers only the suspension of guarantees. The republican Constitution of 1931 conserved the outline of the Constitution of 1869, with certain relevant alterations. The most significant normative instruments of this legislation were the Law of Defence of the Republic and the Law of Public Order of 1933. After the publication of this last Law, it became the extraordinary norm that has most deeply and habitually been put into practice, since Spain has experienced practically a permanent situation of "constitutional abnormality". This highlights the fact that a Law of Public Order for the defence of the constitutional regime established by the Second Republic could be transferred in many of its precepts, with very similar contents to the Francoist Law of Public Order that was able to remain in force until much later, being finally repealed by the Organic Law of LO 1/1992, of Protection of Citizen Safety.