The government makes it practically impossible for the renovation of General Council of the Judiciary (CGPJ) occurs before the end of the legislature by the obstinacy of PP, without whose votes it is impossible to reach an agreement. One of the consequences of the blockade institutional is that, when their vowels are out of mandate, they are unable by law to make appointments in the judicial leadership.
The situation directly affects the Constitutional Court (TC), which also has to be renewed next June with two new magistrates appointed by the Government and another two by the CGPJ. The renewal is considered key for the Executive of Sánchez because, if the established deadlines were met, next June the TC would turn around going from a mostly conservative body to another with a majority of seven judges with progressive sensibilities.
Paradoxically, It is the reform itself that sponsored the PSOE and its partner of Government United We can last March – and that prevents the CGPJ from making appointments to the judicial leadership while in office – which now constitutes the main stumbling block to achieve a TC with a more favorable sensitivity to the postulates of the coalition government.
For all these reasons, a legal ‘shortcut’ is already being studied to guarantee that the Council of Ministers can designate next June the two magistrates of the Constitutional Court (TC) that correspond to it regardless of the situation of the CGPJ, and that they would replace the current president Pedro González-Trevijano and Antonio Narváez, both in the conservative sector of the organ.
It would be, according to government sources consulted by The newspaper of Spain, from overcome legal controversy existing returning to touch the Organic Law of the Judicial Power (LOPJ) to specifically allow the government’s lone movement.
At the moment there is enough time and majority to carry out this reform, add the consulted sources, since it is expected have the usual parliamentary support of the coalition government. The situation would be very similar to that of last March, when the reform of the LOPJ to limit appointments obtained 196 votes in favor, despite the fact that it only needed 176 to move forward.
An essential turnaround for the Government
The turnaround in the sensitivity of the guarantee body is considered fundamental at a time when the Sánchez Government has received important setbacks of this body as were the sentences that found unconstitutional certain aspects of the states of alarm due to Covid pandemic, that were possible at conservative majority vote.
The view is set in the coming months, as the TC has on the table appeals filed against practically all of the government’s management that have been raised by part of the PP and above all by Vox, that accumulates more than thirty initiatives due to its alleged unconstitutionality.
The possibility of this reform already was ventured at the end of last November in legal spheres, but the Government, despite not ruling it out entirely, pointed out that would not be necessary when trusting in that before the end of the year the PP would agree to reasons and unblock the situation. Finally the agreement did not reach, and 2022 has started with an even more pessimistic outlook as the President of the Government himself pointed out during his annual balance last Thursday.
Overcome the controversy
Legal sources consulted admit that there is legal controversy in this regard, since while some jurists consider that the Government could freely designate its two magistrates without waiting for the CGPJ, others Experts find that this possibility would conflict with what the Constitution itself says, that in his article 159.3 establishes that the members of the Constitutional Court shall be appointed for a period of nine years and will be renewed by third parties every three exercises.
If the Government decides to act on its own and appoint its candidates, the matter could be appealed and have to be resolved by the Constitutional Court itself, which would further twist the situation.
The pending appeal
Another possibility to undo the whole mess, although uncontrollable by the Executive, passes through the resolution of the appeals that PP and Vox presented, precisely, against the ‘express’ reform of the LOPJ that prevents the CGPJ from making out-of-mandate appointments. If this unknown is cleared up before June and the reform is annulled as unconstitutional, there would no longer be any problem to achieve a TC with seven progressive magistrates versus five conservatives -just the opposite of what is happening today- as the Government would elect two of its trust and the CGPJ one progressive and the other conservative.
But it is not yet known when he will take this matter to debate, a decision that depends on the current president of the Court, the conservative Pedro González-Trevijano. In any case, the proposals that will be taken to the Plenary will be prepared by two magistrates belonging to the progressive sector of this body, Juan Antonio Xiol and María Luisa Balaguer, since the first has been designated the presentation on the appeal of the PP, and the second that of Vox.
A CGPJ before Rajoy
Ideally, in any case, an agreement should be reached with the PP and the CGPJ could be renewed, which would also lead to a model of the judges’ body prior to the one designed by the Government of Mariano Rajoy. With its reform, which is that of the current Council, there are only seven full-time vowels and a presidential court organ that concentrates ‘de facto’ all its power in a Permanent Commission whose members are elected by the president himself, Carlos lesmes.
The CGPJ that will come out when the PSOE and the PP reach an institutional agreement will be that of the reform operated in October 2018, that repeals the model imposed in 2012 by the Minister of Justice Alberto Ruiz-Gallardón and will once again allow the 20 members to be exclusively dedicated to the institution of which they will be part for a period of five years. Except for a new blockade, of course.
The agreement seems impossible at the moment, since the PP demands to agree a reform in depth that allows a return to the CGPJ of 1980, when an organic law established that the twelve members who must be career judges – the remaining eight are jurists of recognized prestige – would be appointed in a vote among the judges and magistrates themselves. The current model of parliamentary appointment was implemented when the PSOE reached an absolute majority in 1985. Thus, the 20 members are elected equally by the two chambers and the system endorsed it a year later by the Constitutional Court, but warning of the risk that the CGPJ would end up becoming a reflection of the parliamentary struggle.
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.