On the table of the President of the Government, Pedro Sánchez, rests a legal report commissioned by the Minister of the Presidency, Félix Bolaños, on the sole appointment of the two magistrates of the Constitutional Court that the Government must appoint to replace the two whose mandates expired on Sunday, June 12: the current president, Pedro González-Trevijano, and Antonio Narváez. Both were appointed by the Government of Mariano Rajoy. That report, as EL PERIÓDICO DE CATALUNYA has learned, states that it is constitutional for the government to appoint substitutes although the other two magistrates, whose mandates have also expired on June 12 (Juan Antonio Xiol, current vice president, and Santiago Martínez-Vares) and who must be appointed by the General Council of the Judiciary (CGPJ), are not replaced simultaneously in the same act.
Precisely, a ruling of the Constitutional Court, 191 of November 15, 2016, signed by González-Trevijano together with all the members of the court of guarantees, established that although in conditions of “normality & rdquor; the appointment must be made by three lists (renew a third of the TC), if one of the bodies (in that sentence it was the members who had to appoint the Senate and the Congress of Deputies in the CGPJ) could not, for the reasons that was, make their appointments, it would not justify dragging the other.
According to the ruling, it is not merely a power to make appointments but a duty. Whenever possible, it is an obligation to do them. It is a “can-must”. The sentence says: “The proposal or designation that we are dealing with is, for each of the chambers, a genuine power-duty. A power, without a doubt, but also, at the same time, a duty ex Constitutione [desde la Constitución] with transferable terms here regarding legal provisions related to the renewal of this same Constitutional Court”.
The president of the PP, Alberto Núñez Feijóo, transmitted a message on June 9: the decision to appoint substitutes to the two magistrates whose mandates were about to expire three days later (González-Trevijano and Narváez) would be a maneuver by the Government. The council of ministers had not designated on Tuesday the 7th, as it should, the two magistrates to replace the two who were going to expire the following Sunday the 12th.
Despite the legal report that is on Pedro Sánchez’s table, the Government did not want to open a war in the Constitutional Court. Why? Because the messages transmitted to the Minister of Justice, Pilar Llop, by González-Trevijano and Carlos Lesmes, president of the Supreme Court and the CGPJ, They were as clear as they were direct: “They will not pass & rdquor;. González-Trevijano also informed La Moncloa that, if the plenary session was called to receive the two new magistrates, they would not be sworn in since he and Narváez would form the blocking majority.
The president clings to office
González-Trevijano usually says in the acts in which he participates these days that “he will comply with the Constitution & rdquor ;. But in a petit committee he clarifies that if the four magistrates who expired on June 12 are not renewed, including him, he would not give office to the magistrates appointed “unilaterally & rdquor; by the Government. In fact, the current president of the TC is reluctant to leave his mandate expiredbecause this implies remaining as long as possible in their position.
The Government finally, as EL PERIÓDICO anticipated, decided to postpone the appointments of the two magistrates that corresponded to it, given that the Andalusian election campaign was taking place. Sánchez wanted to avoid a confrontation with the conservative sector of the TC backed by Nuñez Feijóo. But when noting that the PP announced a proposal on the CGPJ for the month of July, Moncloa considered it evident that Nuñez Feijóo wants to postpone, once again, until the fall, the renewal of the judiciary.
If Núñez Feijóo said on June 13 that ”all bridges were broken” knowing that the Government could appoint the two magistrates to replace the two expired, without the two from the CGPJ, now that the Government will reform the Organic Law of 2021, which it promoted, to lift the prohibition on the CGPJ from doing the two appointments of magistrates for the TC, Feijóo has once again repeated that the Government “breaks any type of bridge & rdquor; in the negotiation to renew the CGPJ. If what he really wanted was to renew the four expired mandates at the same time, why is he now opposed to the CGPJ being able to appoint the two that correspond to him? Is it not the way to renew the complete list, as the president of the PP, Núñez Feijóo, and the president of the TC, González-Trevijano, demand?
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In the CGPJ, the conservative sector has already indicated its opposition to the legal reform that would lift the prohibition in force since 2021 to make appointments in the TC. The members of the right demand not only to lift the veto to appoint the two magistrates of the TC, but also the full capacity to continue making all the appointments they want in the Supreme Court and in the Superior Courts of Justice. The reform announced by the Government, however, cannot lead to an immediate solution. Judicial sources point out that a renewal cannot be expected until September. But they add that authorizing the CGPJ to appoint the two magistrates puts pressure on the PP, establishes a red line of force, without which, they estimate, Núñez Feijóo will try to make the partridge dizzy.
González-Trevijano had promised to resolve the PP appeal against the abortion law in June. The draft of Enrique Arnaldo’s paper was not distributed in May as announced and it is not expected on the agenda for the last plenary session in June. The constitutional coup has left the TC in the air. With appeals that require an urgent resolution, as is the case of the deputy expelled from Congress, Alberto Rodríguez.