The Constitutional Court begins this Monday a semester that will mark its history, both for the issues that it has pending resolution and for the conditions in which it is prepared to face them.
The specific order in which the magistrates will address the different appeals presented is still pending preparation, but it must include some of the most important reforms that the Government has promoted in this legislature, from the Celaá law, on education, to the euthanasia law. , through the rule that prevents the Council of the Judiciary from making appointments while in office (more than 1,000 days have passed since its mandate expired and the renewal remains blocked), to which the abortion law could be added, pending failure since more than 11 years ago.
To prosecute these laws and thus respond to the appeals presented by the Popular Party and Vox, the court of guarantees has a conservative majority that until now has been more inclined to assert its criteria than to negotiate.
The most obvious example were the failures that overthrew essential aspects of the two states of alarm agreed by the Executive to face the coronavirus pandemic. To these sentences was added the one that considered illegal the halt of the activity of Congress at the beginning of the health emergency. All these decisions caused strong tensions and divisions in the Constitutional Court. The first was approved by six votes to five and the other two, by six to four.
After these experiences, the semester that is beginning will put to the test the presumed will for a pact announced by the conservative majority, very cohesive around Pedro González-Trevijano as president. The first gesture in that direction was the offer made to the magistrate of the progressive minority Juan Antonio Xiol to occupy the vice-presidency of the court. As a result of that operation, both Trevijano and Xiol were elected by 11 votes; that is to say, unanimously, since the twelfth member of the plenary session, Judge Alfredo Montoya, was on sick leave, for whose reinstatement there is still no scheduled date.
The acceptance of the proposal to open a new stage was a bet more than an act of faith on the part of the minority progressive sector of the high court This bloc, and in parallel the coalition government, is awaiting events that refute the suspicion of that the conservative majority will try to continue short-circuiting the reforms of the Executive, in a context of uncertainty about the future of the Constitutional itself in the medium term.
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The next renewal of the court is due to take place in June. In order for it to be carried out without new controversies, it is necessary for the General Council of the Judiciary to be able to appoint the two corresponding magistrates, which it could not do now due to the legal reform that limited its powers while it remains in office with the expired mandate.
Renovation blocked
The Constitution requires that renewals be done in thirds. Therefore, if the Judiciary cannot appoint the two magistrates that it is called upon, it could be argued that the Government – which in June must nominate two others – cannot do so either.
If, despite everything, the renewal were carried out in a timely manner, the majority of the court would change. From the current situation of seven to five in favor of the conservative sector, it would move to another in which the correlation of forces would be the inverse, that is, with a progressive majority.
In the Constitutional Court itself, there is no certainty about what might happen in six months, nor about what was the purpose of the Popular Party in facilitating the renewal last November, carried out more than two years late.
The question, in short, is whether the objective of the popular was to facilitate agreements and comply with legal provisions, or rather to force the departure of the former president, Juan José González Rivas, and the magistrate Andrés Ollero. Both were proposed in their day by the popular, but they had opposed the cancellation of the confinement agreed during the first state of alarm. Precisely, the rapporteur for that ruling was Trevijano, whose term as president would be prolonged – and with him the current conservative majority – if in June the renewal of the Constitutional Court scheduled for those dates runs aground.
In short, the pieces pending on the decisions of the Government and the PP are piled up on the board – in the form of laws for some, and resources for others -, knowing that the situation is not one of equality of arms – because there is a a clear conservative majority – and that this type of game never ends in a draw.
A first litmus test on the majority sector’s willingness to dialogue can come with the sentences on the appeals of the PP and Vox against the LOMLOE (Organic Law of Modification of the Organic Law of Education) or the Celaá law. The magistrates have sent to the first speaker, the conservative magistrate Ricardo Enríquez, proposals to change his initial draft sentence.
Some of them object to the draft ruling because it proposed to declare unconstitutional the possibility of denying subsidies to centers that segregate by sex. The question is whether the sentence will maintain this pronouncement, and what will it propose regarding the treatment of co-official languages in the educational system, two of the basic points – along with the regulation of the concerted school – in the resources of Vox and the PP. Judge Antonio Narváez, also from the conservative sector, is the rapporteur for the second of these challenges.
Judicial branch in office
What happens with this law, or with the Organic Law for the Regulation of Euthanasia, two key measures in this legislature, will mark the steps that the Government takes in response. If these pieces begin to fall, the progressive minority can reply not only with the presentation of particular votes against, of purely testimonial value. The announced Roman pax in the court of guarantees it can give way to another period of confrontations and theoretically contradictory situations.
The rulings on the possible annulment of the prohibition imposed on the General Council of the Judiciary so that it does not make appointments while in office, for example, correspond to two members of the progressive sector of the Constitutional, Vice President Juan Antonio Xiol and Magistrate María Luisa Balaguer. It could be paradoxical that the sentences of progressive magistrates are trying to overturn a reform promoted by the Government to try to facilitate the renewal of the Judiciary, which has been blocked for more than three years. But the gain that would derive from this operation for the Executive would be to open the way to a Constitutional with a progressive majority.
The Government does not resign from a progressive high court
The Government is not willing to renounce that the Constitutional Court reflects the progressive majority in the Cortes. Parliament is the body where popular sovereignty resides and the other powers of the State emanate from it, so sooner or later they must reflect the parliamentary majorities; that is, the state of opinion of society itself. The PP, however, has hindered the renewal of the General Council of the Judiciary (CGPJ), so that these do not reflect the result of the 2019 elections but that of 2016, when the PP was imposed. In the court of guarantees itself, the criterion has been extended that, by one procedure or another, its renewal will be unlocked in the next semester with or without an agreement with the PP. If the Council of the Judiciary continues to be bound to make appointments, it is possible that the judgments on the appeals that question its blocking propose to declare unconstitutional any initiative aimed at curtailing the capacity of the governing body of the judges to elect the judges. two constitutional magistrates that correspond to him, because it is a mandate imposed by the Constitution, which therefore cannot be breached. In the event that the conservative majority of the court of guarantees rejected this thesis, it would still be possible to take it to a bill for whose approval the Executive would have sufficient support in Parliament.
elpais.com
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.