Friday, December 8

The acting Judiciary is installed in illegality after ignoring the term to renew the Constitutional

The General Council of the Judiciary (CGPJ) in office has placed itself outside the law this Tuesday by not appointing the two magistrates of the Constitutional Court that it is responsible for appointing within the deadline. The deadline of September 13 contemplated by the law has been exceeded without the members having even started conversations about possible names. The councilors chosen at the proposal of the PP, the architects of this blockade, allege that they have not found a place to meet with the progressive members until next Friday. In addition, the will of the conservative sector is that this first meeting focuses on setting “the bases of dialogue.” Therefore, no great advances are expected in the short term.

Today it is unknown when the four Constitutional judges whose mandate has expired since June 12 and whose replacement corresponds to the Judiciary (two) and the Government (two others) can be replaced. The Executive has finally given up appointing its own until the governing body of the judges does so and tries that the public statements of its members are not interpreted as pressure on the members. “I want to trust that in the next few days we will see that agreement that they must reach. Let them work”, said this Tuesday the head of Justice, Pilar Llop, at the press conference after the Council of Ministers.

Behind this strategy are eight members who are part of the hard core of the conservative sector and who seem willing to prevent the right from losing its majority in a court as relevant as the Constitutional Court. During the last few weeks, members of this group had already slipped that they did not feel concerned with the deadline set in the law and asked for respect for the “decision times” of the CGPJ. This was expressed during the plenary session held last Thursday, which ended with no more agreement than some “procedural rules” on how to appoint the applicants. The progressive members do want the renewal to be done as soon as possible, although last Thursday they decided not to propose any candidate when they verified the impossibility of reaching agreements.

The issue of deadlines focused part of the discussions at that meeting, although there was no consensus to include a date in the set rules or to convene another plenary session for the 13th as proposed by the member Concepción Sáez, elected at the proposal of IU. With that request, the member sought a formula to comply with the law. Members of the progressive sector attach the utmost importance to the fact that the deadline has passed without making the appointments. “It is about whether or not to comply with a law. We cannot demand that citizens meet the deadlines in the judicial procedures they face and we can avoid them in this way,” one of them told

Progressives fear that conservatives are now deploying different delaying tactics to delay appointments. They assure that proof of this is the slowness with which the talks are going to start and the fact that the conservatives have asked to focus first on organizational issues. “We have been making appointments for eight years without the need to establish those bases that they now see as essential. There is a clear will to obstruct”, says another progressive member.

With this strategy, the councilors elected at the proposal of the PP who are most critical of the process seek to show their discomfort with the fact that the Government has promoted the election of two Constitutional magistrates when they are prohibited from making other appointments when they are in office. Especially, in the Supreme Court, which accumulates 14 unfilled vacancies out of a plant of 79 judges. The underlying reason is, therefore, its opposition to the reforms that the Government has promoted to circumvent the PP’s blockade of the renewal of the CGPJ, whose mandate has expired since December 2018. The first of these reforms prevented the members to continue appointing magistrates –some for positions as important as the Supreme Court or the National High Court– with expired mandates, and the second authorized them to do so only in the case of the Constitutional Court.

This last reform included an amendment that established the aforementioned period of three months that he has fulfilled this Tuesday and to which the conservatives do not give any relevance. They wield, for this, different legal regulations. On the one hand, they allude to the Law on the Common Administrative Procedure of Public Administrations, which establishes that carrying out administrative actions after the deadline has no effect if it is not imposed by the nature of the deadline. And, on the other, they question the legal technique of that last reform. In this regard, they express their doubts that the amendment may have an effect on this renewal because the legal change was approved with the procedure already started and a transitory provision was not included to guarantee its retroactive application.

However, the main consequence of this blockade is that the Constitutional Court will continue in office indefinitely with its current correlation of forces: six conservative magistrates (there were seven until one of them resigned due to illness in July) and five progressives. The renewal is decisive because the conservative sector would lose the majority, since three of the four new magistrates would correspond to the progressive wing: the two appointed by the Executive, who will be of that ideological profile, and another from the Judiciary. Since democracy exists, the agreement is that the CGPJ appoints a progressive magistrate and a conservative one for the Constitutional Court.

With this renewal, the current majority of six to five in favor of the conservatives would turn into another progressive one of seven to four. In addition, the position of the magistrate who resigned due to illness Alfredo Montoya would remain to be replaced. This seat corresponds to the Senate and requires a pact between PSOE and PP. In this way, a progressive majority would be consolidated in the court of guarantees for the next nine years, in the same way that the conservatives have been a majority since 2013. That year, with Mariano Rajoy in Moncloa, three conservative magistrates entered this shift and only one progressive.

But these appointments must reconcile the support of at least 12 of the 19 current members of the CGPJ plenary. They therefore need the help of members from both sectors of the body, now made up of 11 conservatives and eight progressives. The result should be a conservative court magistrate and a progressive one, in accordance with custom. Today, however, it is impossible to know when the appointments will be made.