On July 14, 2022, the Congress of Deputies approved the reform of the Organic Law of 2021 by which the same Government withdrew the powers of appointments to the General Council of the Judiciary (CGPJ) in office (expired December 4, 2018). With the reform, the Council was given the ability to elect the magistrates of the Constitutional Court to replace Santiago Martínez-Vares and Juan Antonio Xiol, whose terms expired on June 12, 2022. The Senate gave the green light to the reform on July 20. The new law gave until September 13 – that is, a little less than three months from its approval – for these appointments. In turn, the other two magistrates whose mandates expired on June 12 – Pedro González-Trevijano (president) and Antonio Narváez – should, in turn, be appointed by the Government.
The Government did not appoint its candidates immediately after the mandates of González-Trevijano and Narváez expired – appointed by the government of Mariano Rajoy nine years ago – because at that time its own 2021 law prevented the CGPJ from making the appointments. And by changing the law last July, when technically the CGPJ could already appoint magistrates for the TC, it gave those almost three months, every other month of August, to make the four appointments simultaneously or simultaneously.
The CGPJ Plenary debated last Thursday the 8th, after the speech by the president of the Supreme Court and CGPJ, Carlos Lesmes, in which he exhorted, on Wednesday the 7th, the Popular Party -its president Alberto Nuñez Feijóo sat a few meters away, in front of Lesmes and the King- to renew the CGPJ without adding “successive conditions” and with the “current law”. The aforementioned Plenary, due to the imposition of the conservative sector, did not analyze the possible candidates and made it clear that the appointments were not going to be made before September 13 or the same 13, failing to meet the legislator’s deadline. But he agreed to make the appointments with a “regulation & rdquor; that there is nothing new.
Now the question that the Minister of the Presidency, Félix Bolaños, and President Pedro Sánchez will have to resolve is: will the Council of Ministers next Tuesday the 13th appoint the two corresponding magistrates? Sources consulted by El Periódico de Catalunya indicate that the Government will not make the appointments and will give a courtesy time, during September, to coincide with those that the CGPJ is going to make.
Feijóo’s proposal
At the time that the CGPJ agreed on the procedure, Feijóo sent a new proposal to the government in which it demands, in addition to its previous demands, new conditions. The PP “as if” picks up the gauntlet thrown by Lesmes, but in reality it has done the opposite of what was the main message of his speech: the PP has added “successive conditions” and they, moreover, contravene the Constitution.
Bolaños is aware that the proposal for a joint negotiation of the renewal of the two bodies (TC and CGPJ) is not possible. Because the PP has nothing to do with the renewal of the TC. Here it is the Government -not the PSOE- who must appoint two magistrates, as the Rajoy Government did in 2013. And in the CGPJ, the PP participates because the election is made through Congress and the Senate. But in TC the PP has no role.
What the PP intends with the new pseudo-offer is to maintain the conditions that they already put in place a few months ago and add others that seek, rather than renew the CGPJ, to disrupt the process already under way to renew the TC.
This, for example, is proven by the requirement to repeal the rule that limited the powers of the CGPJ in office in 2021. If the CGPJ is renewed, that rule no longer has any function. Because what he was looking for, precisely, was the renewal, which the PP blocked. Unless the PP intends that it be repealed and then -once again- not renewed and that the current Council in office recovers the previous powers. With the new Council, the norm that he wants to repeal does not apply.
One, that of linking TC and CGPJ, is unconstitutional. Because it is to give the PP a voice on the TC where it has nothing to do and the other, to repeal the indicated norm, is incongruous. Among the new demands, the PP maintains – something that reflects its desperation – that there will be a too pronounced majority in the TC and it is not good that the TC has a majority close to a government that the citizens will not confirm in the next elections.
However, the majority that the PP has had for five years has allowed it to squeeze the TC like a lemon to applaud every resolution of the Plenary that criticized the Government, and whose mission was to give “throw blows & rdquor ;. A court that enjoyed a majority higher than what is now envisioned if the appointments are made.
the chessboard
What is the landscape on the chessboard that Félix Bolaños has on his table? It is a board in which the piece to move must be very cautious.
Most likely, the government will express its discomfort because the law that set the September 13 deadline has not been complied with. But that, in view of the agreement in the CGPJ to make the appointments, the Government expresses its willingness to give a margin of courtesy and trusts that the president of the Supreme Court and CGPJ, Carlos Lesmes, will make this delay punctual, that do not go back to default and open a new parenthesis sine die.
The Government has the idea of giving the CGPJ a margin, without an ultimatum, until the end of September. Low profile. He does not want to be accused of pressuring, and prefers to give Lesmes a margin of confidence so that he can be named as soon as possible. This chip move has risks because the PP and the conservative members are not standing still.
Even so, the Government is not going to talk now about the new conditions that the PP has set, although sources consulted acknowledge that if they sit down and review some proposals, they could be agreed upon. But there is no possible negotiation because Feijóo raises them now just at the moment in which the renewal of the TC is made and it has already been achieved that this Council appoints the two magistrates.
The government prefers to wait for the CGPJ to name its candidates first. On the one hand, if the Government appoints its own without knowing who it appoints, the CGPJ can remain in the air. It may happen that a magistrate proposed by the progressive members is not appointed by the Council, but the Government could pick him up. And there is also the issue of parity between women and men, and that of the disciplines. If the CGPJ does not name, for example, a laborista, which is necessary because the current TC does not have any, the Government is interested in doing so (the appeals against the modification of Rajoy’s labor reform will have to be addressed). Therefore, the Government could cover the possible gaps.
But there is another reason. If it makes the appointments first and does not wait for the CGPJ to make them, the conservative sector can delay its appointments and denounce that the CGPJ is being pressured. And in this context: how are the two magistrates appointed by the Government going to take office? Pedro González-Trevijano has already informed the Government that “his & rdquor; The current majority will not let these magistrates in if the CGPJ has not named their own. To all this, if the two magistrates appointed by the Government in the TC are rejected, this act has no recourse. And others should be named.
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The Government can, therefore, make its two appointments in the next council of ministers after the date on which the CGPJ makes its appointments, so that the four magistrates take office in a single act and the conservatives do not dig more trenches in the street of Domenico Scarlatti in Madrid.
Although they are already preparing another one for the day after the inauguration ceremony, when, according to the law, the plenary session to elect the president and vice president must be held. Once the majority of the so-called progressive sector is confirmed, what can be done? The conservatives already have experience. They did it with magistrate Encarnación Roca, offering her the vice presidency and once she was accepted, they won her over to her side, weakening the progressives.