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El Tribunal Constitucional como “supremo intérprete” de la Ley de Aguas

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Author(s): Francisco Balaguer Callejón

Journal: Revista d'Estudis Autonòmics i Federals
ISSN 1886-2632

Issue: 14;
Start page: 114;
Date: 2011;
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Keywords: Autonomic state | statutes of autonomy | State-autonomous governmentrelationship | water law | constitutional law | block of constitutionality | constitutional interpretation | constitutional jurisdiction.

ABSTRACT
In the STC 30/2011 nothing is as it should be, if viewed from a legal standpoint.The control of constitutionality over the Statute of Autonomy becomesa matter of plain legal control, twisting the line followed to date by theConstitutional Court to demarcate powers between State and autonomouscommunities. It also blurs the borders between material and formal controlof constitutionality. Material control is not justified by itself but by formalcontrol, which in turn refers ultimately to material control in a circular andtautologous argument lacking all real content. All this revolves around itsalleged connection with the Court’s earlier doctrine, especially with the STC227/1988, which becomes absolutely twisted both methodologically and substantively.The distortion results in a legal reasoning which, for all the continuousappeals of STC 227/1988 to the Statutes of Autonomy as referencestandards for constitutional interpretation as regards the demarcation ofpowers, is based solely on State water law and which, compared to constitutionallyacceptable range of criteria as in STC 227/1988, hinges only uponthat of watershed as established by State water law. The result is that theconstitutional status of the Autonomy Statute is downplayed, even furtherdown than the status of plain law, as derived from STC 31/2010, given thatit is subjected to the determinations of the “State water lawmaker” andgiven that the Constitutional Court is downplayed as well as “supreme interpreter”of Water Law, all this to settle a constitutional issue which, whicheverthe court decision may have been, should have been taken on parametersdifferent from the ones it was built on. The Court should haveconducted its own opinion on the constitutionality of art. 51 of the Statueof Autonomy according to the material criteria in Water Law -not becausethey were contained therein but because they were constitutionally permissible-and any others drawn from the Constitution and based on the logic,the technology and the experience to which the STC 227/1988 appealed, witha teleological inspiration and taking into account the change in the block ofconstitutionality effected by the lawmaker of the statute of autonomy, whichis also State lawmaker. These criteria may have allowed for a different opinionbased on the assessment of the Constitutional Court itself and the analysisof all the elements constitutionally liable and because of that, due toproper consideration.
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