The General Council of the Judiciary is, let us remember, the competent body – among other powers, among which the disciplinary power over judges and magistrates stands out – for the appointment of the most important positions in the judicial system (including all the Magistrates of the Supreme Court and the Presidencies of the National Court, Superior Courts and Provincial Courts). Hence, the political control of the Council is translated in practice into the control of key positions in the judicial system. Attempting to control the Supreme Court – the competent body for the prosecution of graduates – and the high judicial positions has thus been a constant effort of the main political parties. Suffice it to remember the shamefully famous WhatsApp of Senator Cosidó stating that they wanted to control the Supreme Court through the back door or the constant political blockades for the renewal of the Council members, after a change in political majorities occurred. At present, as is widely known, the Council chaired by Lesmes, with a conservative majority, has had an expired mandate for nearly two years and the Popular Party, now in opposition, blocks the renewal, which is why the election system of the 20 members, he is once again at the center of the debate.
Simplifying a lot, the progressive forces are in favor of the entirely parliamentary election of the members of the Council, while the conservatives bet mainly on the election of a majority of its members by the judges and magistrates themselves, a system that progressives distrust aware as they are of the majority conservative bias among judges and magistrates – largely derived from the system of access to the judicial career itself.
The Organic Law of the Judicial Power can choose any system – in fact, since its approval in 1985, it has adopted various formulas that range from the parliamentary election of all its members to the parliamentary election among the candidates proposed by the Judicial Associations – with the only limit is to respect the –scarce– constitutional provisions in this regard.
It is therefore advisable to recall what is provided for in Article 122.3 of the EC on the election of Council members:
“The General Council of the Judiciary will be made up of the President of the Supreme Court, who will preside over it, and twenty members appointed by the King for a period of five years. Of these, twelve between Judges and Magistrates of all judicial categories, in the terms established by the organic law; four at the proposal of the Congress of Deputies, and four at the proposal of the Senate, elected in both cases by a majority of three-fifths of its members, among lawyers and other jurists, all of them of recognized competence and with more than fifteen years of practice in his profession. “
Based on the constitutional provisions, the LOPJ –reformable by an absolute majority of Congress– thus has ample margin to regulate the system of election of the members of the Council.
The two groups that support the Government (PSOE and UP) have presented a legislative reform proposal by virtue of which if the Chambers fail to reach the three-fifths necessary to proceed with the appointments, the Judicial Members can be chosen in a second vote to be held 48 hours after the first in which each Chamber will elect six judicial members by absolute majority, following the remaining eight (four for each Chamber) subject to obtaining a reinforced majority. Said proposal, although it resolves the present blockade, does not prevent the future politicization of the Council by promoting a transfer of government majorities to the bosom of said body. Today, an absolute majority articulated around the Government and its allies could appoint twelve members of a progressive nature (plus the corresponding quota among the eight to be appointed by a reinforced majority), but in the future they could be twelve of a conservative nature. It is good that the government majority has put the debate on the table, but, in my opinion, the formula can be improved.
I therefore proceed to articulate an alternative proposal that seeks to correct the main drawbacks of the system currently in force – the ability to block the opposition – while maintaining the parliamentary election system that I consider preferable for the reasons indicated above.
Thus, the twelve members to be chosen “among Judges and Magistrates of all judicial categories” would be appointed by Congress, choosing the twelve candidates with the most votes among all the Judges and Magistrates, of any judicial category, who had presented their candidacy, without greater requirement than, in your case, to obtain a minimum of endorsements among your colleagues. To ensure plurality, each deputy could vote for a maximum of five candidates, so that the majority, opposition and other minority political groups should negotiate to get the maximum support for their favorite candidates. It is, in short, a system similar to that used for the election of the Tables of the Chambers, with acceptably satisfactory results. The system would also make it possible to introduce gender parity criteria, as well as to elect substitutes in advance in the event of any vacancies during the term of office.
The rest of the members must in any case be elected, as required by the Constitution, at the rate of four for each Chamber by a three-fifths majority. However, it should be noted that in the event of a political blockade in the election of these eight Members with a reinforced majority, the Council could now function with the twelve Members elected by the majority system described above. It would be advisable to expressly provide that the mandate of all the Members will take place ope legis by the mere passage of the constitutionally foreseen term of five years, having to proceed inexorably to appoint the twelve Judicial Members.
A final note. The Constitution clearly distinguishes between the twelve judicial members and another eight elected “among lawyers and other jurists, all of them of recognized competence and with more than fifteen years of practice in their profession.” The Council, as has been said, also holds the disciplinary power over judges and magistrates. To avoid any risk of inbreeding, it should be expressly provided that these eight Members must not and cannot be Judges or Magistrates.
In law, any opinion is rebuttable and any proposal can be improved. Without therefore making a question of faith of any kind, I hope that the proposal outlined here will contribute to the necessary debate to improve a system like the current one that has proven to be worryingly flawed.