The decision of the Table of the Congress of Deputies of not replacing the member of the General Council of the Judiciary (CGPJ) Rafael Fernández Valverde after his retirement reveals the absolute institutional paralysis to which the lack of agreement between the PSOE and the PP to renew this body, which add almost 40 months. It has also caused some outrage in the conservative sector of the governing body of the judges, who see how they lose one of their members because Fernández was appointed on the proposal of the popular.
Several members of the CGPJ reproach the legislative power for having interpreted in a somewhat crooked way the reform approved a year ago that limited part of the functions of this body –related to the performance of discretionary appointments in the courts– by expanding this assumption to organizational issues that the reform did not refer to. The advice Thus, his capacities are further diminished.
The matter, according to some of the members consulted by El Periódico de España, a newspaper belonging to the same group, Prensa Ibérica, that this newspaper should be dealt with in plenary session of this body, although there is no time to include any proposal in this regard at the next meeting that has been convened, and which will be held this Thursday.
The decision was adopted by the Board of Congress with the votes of the PSOE, United We Can and Vox, while the PP distanced itself from it. It was based on a legal report dated last Monday, to which this newspaper has had access, which concludes that We are not facing a case of early terminationTherefore, the substitution provided for in the Law and that was requested in writing by the president of the CGPJ, Carlos Lesmes, last March 8.
wrong interpretation
According Jose Maria Maciasthe interpretation that has been given to the law so as not to replace Fernández Valverde -who In addition to being a member, he was a magistrate in the Supreme Court, losing this condition when he turns 72 – it seems an “invention” unrelated to the reform from a year ago; although this member doubts that the Council will enter any controversy that he knows “will not lead to anything.” For this member of the CGPJ, the fundamental thing is the “barbarity” of not being able to make appointments in the Supreme Court and the untenable situation that has been created by it, so that everything else becomes secondary.
Macías interprets the decision of this Wednesday of one more step “in the dynamic of harming the proper functioning of the Judiciary” and describes as “nonsense” that a power of the State is dedicated to harming the proper functioning of the government of another power.
Other members of the same sector agree that the fact that the CGPJ has been in office since December 2018 “does not seem to be a dissuasive argument from a legal point of view for not processing and activating the substitution coverage regime.” They consider, however, that even if the square is not covered, the normal functioning of the Council will not be altered.
Possibility of recourse
There are also those who point out that the decisions of the Congress Board are likely to be reviewed by the Constitutional Court, but for this, the initiative of some parliamentary group that appealed to this in particular would be necessary. The PP, which did not support the decision, has not said anything about it.
“The current limitations of the CGPJ seem more functional than organic; they would affect its powers and not its composition,” sources from the progressive sector emphasize, adding that, in any case, the substitution of members is a power of the Lower House and from the CGPJ “nothing can be done”.
In addition, the Council would be aware that none of the three substitutes (Jose Carlos Orga, Pedro Castellano and Maria Luz Garcia Paredes) are interested in entering a Council of the Judicial Power close to its renewal, or so it is hoped. Orga is also a candidate for the next Council, and if he is elected now he could not enter the next one.
Legal report
As for the report of the lawyers, throughout its five pages it analyzes whether Fernández Valverde should be replaced as a result of having been declared his forced retirement, taking into account that the current CGPJ has expired.
A first interpretation, favorable to substitutionwould start from the LOPJ does not establish, for the purposes of substitution, any difference between the current mandate and the acting mandate. However, in the face of these arguments, the lawyers argue that “What corresponds to guarantee the proper functioning of this constitutional body is to proceed with its complete renewal.”
“In this way it seems more correct to understand that, since the Council’s mandate has ended, we are not facing a case of early termination in the strict sense, so the substitution would not proceed. Not in vain, within the framework of the provisions of the article 571.2 of the LOPJ, as the mandate of the substitute is linked to the end of the mandate of the body, the Law seems to be presupposing the existence of a current mandate in full functions“, they conclude.