Friday, August 12

The black waters of democracy (CGPJ and TC)

“All successful democracies depend on informal rules that, despite not appearing in the Constitution, are widely known and respected”

Levitsky and Ziblatt

I know that I catch them at a bad time because, either they are resting, or they are tired of not being able to rest. Especially when I’m going to ask you to come out with me into a whirlwind. I am reading these days -to make summer look like- an entertaining contemporary pamphlet written by Michael Macdowell, the screenwriter of Beetlejuice, beautifully edited by Monsieur Toussaint Louverture. I rest from the national fatigue letting myself be carried away by the turbulent waters of the Lost River at its confluence with the Blackwater, there in Alabama. Both rivers form a tumultuous whirlpool when they meet, capable of sucking in a boat, a swimmer or any life. About him run stories of tragedy and dark fantasy. Something terrible lives right at the bottom, where the whirlwind is born. I tell it because I have to ask you to come with me there, even though it is a more homemade whirlwind and indefinably rougher and duller. The truth is that they use it so that no one looks towards it, despite the fact that it is the darkest, most dangerous and gloomy hole that currently stalks our democracy.

Come with me. From lost to the river, to the Lost. I’m going to try to draw the monster with McDowell’s shrewd insight and narrative tension, and see how we get on.

Tomorrow, Monday, eight very and very conservative gentlemen, who are still lounging in a seat that they should not occupy for three years, have requested an extraordinary meeting to “address”, or rather to abort, a reform presented by a parliamentary group before the popular sovereignty of the Congress of Deputies. I know it’s fantastically monstrous, I’ve warned you, but it’s the truth. Eight fully expired members of a state power have forced a meeting to pressure parliament regarding a legislative proposal that our popular representatives must vote on.

Everything is born -and I have been telling you about it for more than three years, between the fear and the laziness of boredom with which they seek to lull us to sleep- from the conscious decision of the Popular Party to prevent democratic and constitutional normality from taking effect. That’s how it is. Everything continues because, as I fear and they tell me, the PP has no intention of solving this anomaly until it attends the elections that it intends to win. In short: the PP took the constitutional game ball when he lost and does not plan to release it until he sees if he wins and has possession again. There is no doubt who is to blame for the democratic deterioration. None.

Now, at this point, I think mistakes are also being made on the side of those who seek to put an end to this unfair and anomalous behavior. The last one has to do with the Constitutional Assembly and with the renewal of a third of its members, which must be carried out just in time. [Inciso, el TC no es un tribunal de justicia y sí debe ser nombrado por los órganos políticos designados por la Constitución, en este caso dos miembros por el Gobierno y dos por el CGPJ]. So no, there is no manipulation or abnormality or control or anything strange. The Government has the obligation to appoint two members and the CGPJ another two.

It turns out that in an emergency action, in the face of the mugshot and the lack of democratic and institutional conscience of the PP, the progressive forces approved a legal reform so that the expired CGPJ could not continue appointing freely appointed judges in the great courts. It produced a terrible impotence that the PP in clearly aggressive action with the institutions, was also taking advantage of continuing to populate the most important courts with related magistrates, to do what? Well, a bit like in the USA, you know, you leave them there and then it’s as if you didn’t stop governing.

The bad thing about a well-designed political and constitutional system is that when you jam a gear, everything starts to go wrong. So the PP seizes the system, the government coalition grapples with a reform to frustrate their plans and apparently that seizes the designation of the third of the Constitutional that it touches. I say apparently because I think that here the Government is allowing an underground envelope to be made that it intends to solve with a new reform of its reform when in reality the only thing it would have to do is fulfill its duty to appoint two magistrates and let them be minions of the PP those that remain in evidence. But it’s going to be no, it’s going to be that they’re going to fall into blackmail and fear and they’re going to do a new legislative trick that isn’t cool and that, on top of that, is going to help the expired conservatives in the CGPJ make it to use against them.

Argument of the conservatives: the TC is renewed by thirds (four magistrates) and if the complete third cannot be appointed, it cannot be renewed.

The argument is fallacious, even though there are legal minds dedicated to confusing and producing apparently brainy and happy theories. Why does the Government have to think about whether another power of the State can make its appointments or not if it has the duty and the right to make its own? How is it that two powers of the State must agree to fulfill their functions? Besides, it’s a lie. When the Constitutional Court was newly created, the CGPJ did not yet exist, so in February 1980 the first magistrates were appointed but it was not formally constituted until July.

The Government would therefore have to appoint two magistrates and leave the pods behind. Why do you get into new adventures of legal reforms? Well, according to what they tell me from the cake itself, because the expired president of the Constitutional Court, González-Trevijano, one of those who has to leave, has dedicated himself to letting the Government know that they would sabotage such appointments from the court. That’s nothing, especially since he would be personally interested. The idea would be to use two powers of organization of the president to prevent the inauguration of those appointed. It would be the Constitutional cheating the Constitution. The threatening murmurs would consist of conveying that if the Sánchez government dared to fulfill its obligation -appoint two magistrates- or else the lapsed president would not call the full acceptance, until the CGPJ did not appoint his own -an ignominy, obviously, that it would make the mandate of those appointed run without it being exercised – or else the conservative majority would oppose giving them the placet in that plenary session – another ignominy because this procedure only allows reviewing whether the legal conditions of those appointed concur, not the meaning of the appointment -. Well, it seems that the Government has succumbed to those songs of the evil siren and is heading to crash against the rocks of a reform of its reform from which, surely, the right is going to get a slice of the story and the media. In the end they are going to be the bad guys and the ones who want to dominate the courts. And since this is a hell of a lot to explain, it will turn out wonderfully. Not even when you meet him does he give you time on TV or a radio to explain what really happens. That gives the peperos an advantage.

Not content with that, and given the imminence of the reform of the reform, so that the CGPJ can appoint those two members of the TC, -but not the more than 60 judges that they no longer have to appoint and that they demand to continue doing- Well, they are going to have the holy nose to meet in plenary to reproach the socialist parliamentary group for that solution and to demand that they have to consult them!

The black whirlwind consists of a devilish situation in which, on the one hand, the PP and, on the other hand, its expired majority of the CGPJ and its conservative magistrates of the TC, close ranks and basically prevent other parties, other than them, from being able to carry carry out the tasks that correspond to them by constitutional order.

It is a mess but it is the worst mess, the most serious in which our democracy finds itself mired. A party and some conservative elites within the judicial career have hijacked the Constitution with the mere principle that other political formations are not entitled to do what the law requires them to do.

Feijóo yesterday, in a new clumsiness, verbalized it: “There is only one constitutionalist party left and it is us.”

Do you know what defines that? A fundamental law and a single party.

And towards that we advance, like a hovering boat, which is carried towards the whirlwind. Only we all go inside.