The discreet contacts between the Government and the Popular Party for the renewal of key state institutions, such as the General Council of the Judiciary (CGPJ), the Constitutional Court or the Ombudsman, have been of no use, at least for now, to the that the Magna Carta attributes essential functions of control and operation of the Rule of Law and a constitutional mandate for its configuration. Pablo Casado closed the door to reach agreements with Pedro Sánchez for the distribution of the governing body of the judges or the high court while United We can continue to sit in the Council of Ministers. Not even the appeals from the judiciary have served to get the main opposition leader, whose support is necessary to reach a sufficient majority to change those bodies, to move. These institutions will continue to function or with less representation than that established by law for the exercise of their functions. But not only the immobility of the PP is the cause. The uncertainty in which Spain has been mired by electoral cycles has also frozen substitutions such as the Transparency Council, vacant since the death of its president in 2017, and has parked the contest for the RTVE board of directors.
Why Pablo Casado refuses to renew the Judicial Power
The clearest example of the blockade of the PP is the CGPJ, which has expired since December 2018. The current composition of the governing body of judges has a conservative majority in line with the overwhelming victory of Mariano Rajoy in 2011. In 2013, when he played renewing that constitutional body, which requires three-fifths of support in Parliament, was done with those numbers. But years later and with a completely different parliamentary arch, the understanding between Sánchez and Casado jumped into the air after the then PP spokesman in the Senate, Ignacio Cosidó, send a WhatsApp message in which he boasted that they would continue to control the body that Judge Manuel Marchena would preside. The controversy made Marchena himself, the consensus candidate between PP and PSOE, end up resigning from the appointment before it occurred. There was no agreement again.
Now that two other general elections have been held in which the popular ones have sunk, the CGPJ continues to operate with a conservative majority that it is not representative of the mandate reflected in the ballot box. Despite the discreet contacts that second levels of the PP have maintained with the Government, Casado has cooled any possibility of agreement while Pablo Iglesias remains in the Government. The conservative leader rejected that United We can claim and negotiate its “quota” in the governing body of the judges, which until now have been distributed by the PP and PSOE with the presence of conservative and progressive magistrates and, in some cases, the participation of the groups nationalists.
Meanwhile, the CGPJ will continue to make decisions in functions that largely affect the distribution of power in the courts, since it is the body that decides promotions in the judicial career. With the current composition, the conservative majority in the Judiciary does not correspond to the parliamentary arch that the ballot boxes drew. Despite the fact that the president of the institution, Carlos Lesmes, has formally addressed Congress to demand that the CGPJ be renewed, he has reactivated the appointments of three magistrates to the Criminal Chamber of the Supreme Court –vital for some corruption cases– or the presidencies of the Superior Court of Justice of the Canary Islands and of the Provincial Court of Ourense.
Faced with this situation, the Executive has the option to modify if the law that regulates the Judicial Power achieves an absolute majority to change the necessary majorities and lower the requirement of three fifths to carry out the renovation – but it would be a controversial, complicated and contrary to what has been defended up to now by the Socialists – or to address an in-depth reform of the election system of those bodies, as requested by Ciudadanos and which the Government spokesperson, María Jesús Montero, ruled out.
But the CGPJ is not the only body whose renewal remains blocked. The mandate of four of the twelve members that make up the Constitutional Court expired in November 2019 and the lack of agreement prevents their replacement. Constitutional magistrates remain in their positions for nine years, according to the law, and are partially renewed every three. The designation corresponds to the Congress (four), the Senate (four), the CGPJ (two) and the Government (two). Those appointed nine years ago by the Lower House from the agreement between the PP and the PSOE (each named two) –among them the president, Juan José González Rivas; the vice president, Encarnación Roca; and the two magistrates Andrés Ollero and Fernando Valdés– have been extended for almost a year and with no signs of its ending. Also in this case a qualified majority of three fifths is needed, which requires the participation of the main opposition party. The Constitutional Court has key causes such as the you process, the ‘gag law’, the state of alarm and abortion continues in a drawer.
Interim in the Ombudsman and the Transparency Council
The Ombudsman has been in an interim situation since Soledad Becerril’s five-year mandate expired in 2017. The powers were then assumed by the socialist Fernando Fernández Marugán, who was the number two of the institution. Normally this is a position agreed by the two main political forces, although in 2010 there was also a similar period of two years due to the lack of understanding of the PP with the Executive of José Luis Rodríguez Zapatero. Sánchez is waiting for the PP to agree to unblock these types of agreements with the aim of placing Ángel Gabilondo in front, after two failed attempts to reach Puerta del Sol that force him to rethink the future of the candidacy of the PSOE in the Community of Madrid. The Constitution includes the figure of the Ombudsman as a commissioner who is responsible for ensuring compliance in Spain with the fundamental rights contained in Title I of the Magna Carta.
The Court of Accounts, the body entrusted by the Constitution to audit the accounts and the accounting management of public administrations – including political parties – has also had one fewer vocal members since Lluís Armet i Coma resigned for personal reasons in 2018 , proposed by the PSOE in the Senate. The Upper House has not replaced him and his powers have been assumed by another counselor. The mandates of the twelve members of the supervisory body have a duration of nine years, so the agreement reached by socialists and popular in 2012 – by which, according to the majority of Rajoy, the PP proposed seven names, for the four of the PSOE plus another set with UI – expires next year.
The case of the Transparency Council is different and is not due to the refusal of the PP but to the abandonment by the Government of Mariano Rajoy and that of Sánchez increased by the 2019 electoral cycle and, subsequently, the emergence of the COVID pandemic -19. The presidency of the body in charge of ensuring compliance with the Transparency Law has been vacant since the death of Esther Arizmendi in 2017. In this case, the proposal would have to be made by the Ministry of Territorial Policy and ratified by an absolute majority in Parliament . The Government could, therefore, reach 176 supports with its usual parliamentary partners. Likewise, the parliamentarians (a deputy and a senator) who are part of the commission of that body and who are vacant after the electoral period remain to be named.
That slowness collides, for example, with the renewal of the National Markets and Competition Commission (CNMC) that replaced some of the charges that had expired in September last year. The Government managed to carry out the changes in June with the investiture votes and without the usual bipartisanship on these issues. The Council of Ministers also appointed Cristina Herrero as president of the Independent Authority for Fiscal Responsibility (AIReF), a position she had assumed on an interim basis after the departure of José Luis Escrivá to the Ministry of Social Security, Inclusion and Migrations. The decision was accepted unanimously in Congress.
The cumbersome contest for RTVE
Without a doubt, one of the biggest disputes in recent months is the contest for the renewal of RTVE’s board of directors, which threatens to turn into a fiasco. The mandate of the president of the public radio and television corporation, José Antonio Sánchez, expired in June 2018, as soon as Sánchez arrived in Moncloa through the motion of censure. The Government forced by decree the renewal of the address to avoid a legal vacuum pending the development of the contest that was being worked on in Congress. The Executive shielded the text against a hypothetical veto in the Senate – where the conservatives had an absolute majority – and raised the possibility of a sole administrator in the event that there was no agreement to renew the council. Despite having reached an agreement with other parliamentary forces, including Unidos Podemos, ERC, PDeCAT or the PNV, a failure in the vote and the absence of two parliamentarians brought down the renewal of the board of directors, which should have gone ahead, although with a very tight result.
From that defeat, the Government appointed Rosa María Mateo as sole administrator on an interim basis until the end of the public contest sponsored by the Cortes. The journalist is in the center of the target of the right with each decision – some of which have also generated great discomfort within the corporation – while the process of renewal of RTVE is stopped. The groups reached an agreement to appoint a committee of experts that evaluated the candidates anonymously. Of the 95 candidatures, this committee of experts transferred to the corresponding mixed commission of Congress and Senate the twenty best ones – those that had obtained more than 65 points in the scale -. Of those applicants, ten would be elected to the corporation’s board of directors.
However, this approach has run into several problems. On the one hand, the death of the journalist Alicia Gómez Montano, who was director of Informe Semanal, and who had been in the first position. One solution is to pass the next one on the list, but it is a man and then in the set of twenty there would only be three women, making it impossible to comply with parity since there would be a maximum of 30% female representation in the case that all of them were selected. The elections of April 28 and November 10 forced the process to be paralyzed, which has actually been resumed after the lifting of the state of alarm.
In the month of June, the lawyers of the Courts proposed that the commission examine the twenty appointed by the expert committee or that all applicants be in the selection process, since the legal services understand that reducing the former “constrains the scope of political decision of the Chambers “. In the Government they are inclined towards that second option, fundamentally to guarantee parity in the direction of RTVE, but the solution has not yet been put on the table. Meanwhile, RTVE is still directed by Mateo, with a complicated internal situation and the wear and tear of a contest that ended up not convincing anyone.