Monday, November 29

No one appoints the judges



The truisms are irrefutable. And, because they are, sterile. In the least perverse of cases. Liars, most of the time: characters very artificially engineered to mask a fraud. Thus Bolaños, that new Iván Redondo in a clumsy version: «Neither judges can elect judges, nor politicians can elect politicians… We are all elected by citizens because they are powers of the State. All derive from the free vote of the 47 million citizens.

Obviousness masks, in this case, the trick of answering a non-existent question or objection. The simplest thing in this type of strategy is to resort to the quietly ambiguous use of words. “Judges cannot choose judges”: it is obvious.

No one chooses judges: entry into the magistracy -with exceptions determined by law- is governed by a filter called oppositions, after which a judge is -and is only- insofar as he exercises jurisdictional independence complete. Rota which, the criminal zone of prevarication opens.

Has there ever been a party crazy enough to ask for the judges to be appointed by the judges? None. There is no debate on that matter. The debate is another. And the question is another: who appoints that internal governing body of judges, which is the General Council of the Judiciary (CGPJ)?

Let’s avoid masking ourselves in the obvious. Let’s define. Is the CGPJ a jurisdictional instance? No. According to the Constitution of 78 (122.2), “the General Council is the governing body” of the judiciary. Whose proper functions are the “appointments, promotions, inspection and disciplinary regime” of the judges. It was then bet on a majority participation of the judges in their election. Which, if one considers that the function of that entity is to control the proper conduct of the magistrates, it seems quite logical.

It didn’t seem like it to González or Guerra. Who, in 1985, launched the offensive that would liquidate that pillar that guarantees the division of powers: that is, of democracy. And they put in the hands of the politicians the power to ‘discipline’ the judges through the vicars that the parties appointed to the Council. The system consisted of equitably distributing the seats of the CGPJ among the parties present in Parliament. Guerra’s argument, in his day, would be identical to that of Bolaños today. The totalitarian temptation was obvious: it was committed to suspending, as much as possible, the full autonomy of a judicial power capable of counterbalancing political power. Today, in the EU, this liquidation of the autonomy of powers only persists in two countries: Poland and Spain.

No, what is at stake is not the choice of judges. It never was. It is the choice of those who discipline the judges: faithful vicars today of one party or another.

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