The legal debate is over and the tricks to block the renewal of the Constitutional Court are over. The Government has decided to make a move and has found the formula so that the maximum guarantor of the Magna Carta can be renewed even while the General Council of the Judiciary (CGPJ) is in office. It will be through a legal reform that will allow the highest governing body of the judges to appoint the magistrates even if their mandate has expired.
'The Economist' considers Spain a "defective democracy" due to the lack of renewal of the Judiciary
The PSOE will register this Friday in the Congress of Deputies a bill, of which they have already informed their coalition partners, to modify the Organic Law of the Judiciary that will allow the CGPJ to renew two of the four magistrates, whose mandate expired last June 12. The other two will be proposed by the Government in the first Council of Ministers to be held after the appointment corresponding to the Judiciary, whose mandate also expired in 2018 and has been impossible to renew due to the blockade of the PP, which refuses to comply with its constitutional obligations.
With the current regulations, a legal debate had arisen on whether or not the Executive could renew the togados that correspond to it if the CGPJ did not previously cover the vacancies of its quota. That is why the reform proposed by the Socialists – which has been communicated to the Secretary General of United We Can, Ione Belarra – authorizes the Council to make these appointments while in office.
It is about the modification of a simple article of the law of the Judicial Power, 570 bis of the LO 6/1985, for which reason in La Moncloa they calculate that the text could enter into force next July, since it will be processed with character urgent and in single reading to unlock the renewal of the TC before the August holidays arrive. Thus, once the Judiciary chose its two representatives, the Government's intention would be to immediately appoint the two that correspond to it, whose names have not yet been decided, as elDiario.es has learned from government sources.
what do the laws say
Article 159 of the Constitution establishes, in its first section, that the TC will be made up of 12 members appointed by the king. Of them, four at the proposal of Congress by a three-fifths majority; four, at the proposal of the Senate, with the same majority; two, at the proposal of the Government and two at the proposal of the General Council of the Judiciary. But, with the Council in office, there were doubts about whether they could choose the two magistrates that correspond to them by constitutional mandate. And it is that the power to propose them is recognized in article 560.1.2ª of the Organic Law 6/1985, of July 1, of the Judicial Power, a precept that regulates the set of powers that are legally attributed to this body with general character. However, in the statement of reasons for the bill that the two partners of the government coalition will register this Friday, it is recalled that Organic Law 4/2021, of March 29, which modifies Organic Law 6/1985 , of July 1, of the Judiciary, for the legal regime applicable to the General Council of the Judiciary in office, "has introduced a new article 570 bis with the purpose of restricting the powers attributed in general to the General Council of the Judiciary, once the term for its renewal ends without the new members having been able to be appointed”. And, among the powers that the Council ceases to be able to exercise, is precisely the appointment of the two magistrates of the Constitutional Court that it must appoint by constitutional imperative.
In other words, the new regime that Organic Law 4/2021 establishes for the General Council of the Judiciary when it becomes in office does not contemplate the power to appoint the two magistrates of the Constitutional Court that correspond to it, which forces us to wait until the renewal of the Council, which depends on the willingness of a PP that has refused to renew it for four years.
The Government understands that in order to avoid this situation, which may cause difficulties in the renewal of constitutional bodies, article 570 bis of the Organic Law of the Judiciary must be modified, in order to include among the powers conferred on the General Council of the Judiciary in functions to appoint the two magistrates of the Constitutional Court that, in the terms provided in article 599 of the same norm, corresponds to appoint.
Almost four years of blockade of the PP
The Constitution establishes that the magistrates are renewed by thirds every three years, and the four magistrates that correspond to Congress were already renewed on November 17, 2021. A few months later, in March the four proposed by the Senate also took office. The possibility of a renewal of the blocks of magistrates corresponding to the Government and the CGPJ separately had generated uncertainty in the court of guarantees itself and the most conservative sectors of the judiciary, precisely because of the latest reform that limited the powers of the body of judges. while he was in office. And from the Executive the PP had been blamed for this situation until now, since the popular ones maintain the blockade to the renewal of the Judicial Power since 2018 to impose the conservative majority in the CGPJ and also in the Constitutional, which in the last year has The legal strategy that the Sánchez government promoted to deal with the pandemic has been knocked down: the two alarm decrees and the break in Congress during the first months, in response to a VOX appeal.
The issue is not trivial insofar as the Constitutional Court has also pending to rule on four relevant laws from the ideological point of view, such as abortion -which has been pending for more than a decade-, euthanasia, the last of Education and the one that prevents the CGPJ from making appointments while it is in office. And there are no signs on the horizon that Alberto Núñez Feijóo is going to immediately resume the talks that he opened with La Moncloa last April, when he met with Pedro Sánchez upon being proclaimed president of the party and addressed some state affairs.
After that appointment, Feijóo took almost 20 days to appoint one of his deputy secretaries, Esteban González Pons, as the government's interlocutor. But the negotiation to this day remains paralyzed. The PP first said that everything that had been discussed until then with the leadership of Pablo Casado, who was negotiating through the Minister of Justice of Madrid, Enrique López, was not valid for him and that the talks had to be restarted from scratch. Later, he denied that he felt impelled to reach an agreement by the deadline of June 12, when the mandate of the four Constitutional magistrates expired. And finally, postponed the start until the Andalusian elections were held which took place last Sunday.
Therefore, nothing has changed in the PP with the change of leadership regarding the institutional blockade that Pablo Casado maintained, with whom the Government of Pedro Sánchez held talks at all times and was even about to close an agreement in which the popular They stood out at the last moment due to political, judicial and media pressure. Feijóo is going the same way, and hence the Government's movement, after having swallowed a year ago with the appointment, at the proposal of the PP, of Enrique Arnaldo as magistrate of the Constitutional Courtdespite his affinity with that party being known, charging through a law firm up to one million euros from administrations governed by the popular and having broken the law to collect from two universities at the same time.
When the reform enters into force, predictably next July, the ball will already be in the court of Carlos Lesmes, president of the CGPJ, who will have to immediately appoint two magistrates so that the Government does the same with those attributed to him by the Constitution and end with a completely unsustainable situation, in addition to a flagrant democratic anomaly.