The November 2019 elections marked the beginning of a drift that has now just exploded in the Constitutional Court. That day Vox obtained 52 deputies. The first teletypes highlighted during the last hours of that count the spectacular rise that the far-right formation had achieved at the polls, doubling its previous result and ranking as third force in Parliament. But Vox that day achieved something else: his electoral booty gave Abascal a direct passport to go to the Constitutional Court as long as he considered and without having to convince other formations to present appeals against the government’s action. The Constitution (article 162.1) establishes a minimum of 50 deputies who must sign an appeal of unconstitutionality that requires a debate in the main guarantee body. Vox had two left over. Since then, a total of nine appeals of unconstitutionality presented by the extreme right wing have arrived in the Constitutional mailbox.
The Constitutional solution would have forced the lifting of restrictions in Spain with more than 100 deaths a day
The first time that Vox decided to exercise its new right was on March 26, 2020. That day it did so to discuss the constitutionality of the incorporation of Pablo Iglesias to the commission that in Moncloa takes cognizance of the investigations undertaken by the National Intelligence Center (CNI). His proposal was upheld, but the case did not go further because Iglesias left the Government and the battle was diluted. A month later another resource would arrive: the one they just won against confinement. From there, the number of times that Vox pressed the red button of the Constitutional Court is close to ten. His theses have more and more followers among the magistrates who have given Abascal a new chamber in which to achieve the successes that Parliament denies them. Its obvious electoral weight is not enough.
The decision communicated this Wednesday represents the first great victory of the extreme right in the Constitutional Court. But it is only a first success on matters that Vox has put on the table of an organ in which the magistrate Pedro González Trevijano has managed to establish a Pyrrhic majority to overthrow everything that comes from parliaments. In the drawer of pending issues brought by Vox, the appeal against the second state of alarm remains to be debated, the appeal against the use of bable in Asturias, the appeal against the Murcia law on the Mar Menor, the appeal against the Celaá law , the appeal against the Garzón Law that regulates the rights of consumers in the matter of housing, the appeal against the Euthanasia Law, the one that discusses the stoppage of appointments made by the General Council of the Judicial Power in office and the one that discusses the approval of a Galician Health Law that raises, among other things, the possibility of forcing the population to be vaccinated.
Abascal and his team reacted to their first victory with a bang. They say nothing about the path of contradictions that have facilitated this censorship of the Government. What follows is a reconstruction of that journey where politics and jurisprudence have crossed to the limit of the indistinguishable.
Part of contradictions
The first great contradiction has Vox as the protagonist. Abascal’s party voted in favor of the first extension of the state of alarm. That parliamentary debate was held on March 25, 2020 with 321 votes in favor of the measure and none against. During the interventions, Abascal even told Pedro Sánchez the following: “I was the one who demanded the state of alarm on March 10. You are the one who must have all the command. Take advantage of your powers to minimize the threat to health “. Barely a month after making those statements, Vox presented its appeal of unconstitutionality against the state of alarm.
The Constitutional doctrine is also contradictory regarding the usefulness of the state of alarm and the limits that can be established under its protection. On April 30, 2020, the plenary session of the body issued a ruling freezing the right to demonstrate, one of the rights considered fundamental. The resolution responded to a union claim that sought to call a protest in Vigo, coinciding with the celebration of May 1. But the Constitutional Court decided that “the right to life” was above any other consideration. In that text, the magistrates had no qualms about supporting their arguments about a state of alarm that was already in force and argued as follows: “There are no circumstances that allow the exercise of the right to assembly due to the pandemic situation.”
The political war of the TC
Since the appearance of Vox as an actor with influence in the Constitutional Court, the traditional distribution of weights between progressives and conservatives has been blown up. “Vox has more and more weight in the decisions”, assure sources of the Court. So much so that the decision to declare that the confinement was ordered without compliance with the law was adopted by a single vote of difference around a group of magistrates aligned with the strategy of the far-right formation. However, Andrés Ollero and Juan José González Rivas, members of what was the conservative bloc, have decided not to support the measure and join the progressives in their rejection of a sentence against which they have already announced individual votes.
At the head of the most radical wing of the TC is the magistrate Pedro González Trevijano, once proposed by the PP and who aspires to preside over the body, if one day the pending renewal takes place and which we will talk about later. During the debate on Wednesday, Trevijano refused the proposal to postpone the decision and continue reflecting that was put on the table by the president of the Constitutional Court, González Rivas.
The Constitutional Court that has decided to place the Government of Pedro Sánchez outside the law is made up of a group of 11 magistrates, of which four should have been renewed in November of last year. The blockade imposed by the PP to undertake this renewal has allowed a decision in which the vote of Encarnación Roca has been key, once proposed by the PSOE after an agreement with CiU, and which tipped the balance. Roca, like the conservatives Andrés Ollero and Juan José González Rivas and the progressive Fernando Valdés (recently resigned due to a case of gender violence) are in their position for more than the time that the Constitution stipulates for their positions.
In addition to the above, in July 2022 another renewal is planned that will change the weight of power in the body. This is the turn in which the Government puts two names and the General Council of the Judiciary another two. By then the Constitutional majority is expected to be progressive. At the moment, it is the extreme right who is in charge.
The advisor who was with Aznar
The sentence that demolishes the confinement had as its editor an old acquaintance of Aznarism. It is about the lawyer and professor of constitutional Ángel Sánchez Navarro, recently arrived at the Constitutional with the protection of Pedro González Trevijano. Trevijano was entrusted to him by the 180-degree turn that was given to the pre-existing presentation defended by Fernando Valdés, before his resignation after being prosecuted for a case of mistreatment.
This new lawyer, with extensive experience in the matter, has on his resume having been part of the court of advisers that José María Aznar surrounded himself with in the presidency of the Government in 2000. As a result of the work of Sánchez Navarro, what it was a sentence that accepted the legality of the confinement that ended up turning into the opposite.