The General Council of the Judiciary (CGPJ) has four years late in its mandatory renewal. The PP delays it with excuses from the frustrated PSOE-PP pact for which Manuel Marchena -president of the second chamber of the Supreme Court- was going to be the new president of the CGPJ. The pact collapsed because Ignacio Cosidó -a senior PP official- sent an “internal & rdquor; affirming that the pact was very convenient because, with Marchena, they would control the criminal court – the one that judges politicians – “through the back door & rdquor ;. The scandal was huge.
But with the replacement of Casado por Feijóo it seemed that everything would change and after the resignation of the president of the Supreme Court, the conservative Carlos Lesmes, in protest against the blockade, an agreement was reached in principle. But Feijóo ended up breaking it: the Government was going to change the crime of sedition to favor the independence movement. Feijóo was under great pressure from a legal-media nucleus in Madrid that believes that the sedition thing will take away authority before Europe from the Supreme Court ruling against the leaders of the ‘procés’.
Spain thus lives the great anomaly of a CGPJ in functions to which, in addition, a Government law – to force the renewal – took away relevant powers. And the worst can come now, because the Constitutional Court (TC)who has the last word on the constitutionality of laws, it is almost paralyzed. And it cannot be ruled out that its president, the conservative Pedro González-Trevijano, tries to prolong the strange situation.
The renewal of the TC is done by third parties in Congress and the Senate. But the last third is that of two magistrates chosen by the CGPJ and another two appointed by the Government. What follows is not a maze, but the thorny reality. Sánchez modified his law so that the CGPJ would recover the power to appoint the two magistrates of the TC before September 13 and the Government would designate the two members of the third that correspond to it.
But the judicial right has been delaying -again with different excuses- the decision of the CGPJ. The key is that now in the TC there is a conservative majority of 6 to 5 (a conservative judge resigned) and with the renewal the majority will be progressive from 7 to 4. And if the Senate renews the resigned conservative judge, from 7 to 5.
But, as the CGPJ delays his election, the Government has decided that it could not delay the appointment of its two magistrates any longer and has chosen the former minister Juan Carlos Campo and the professor Laura Díez. It is a decision in accordance with the law, but controversial because -although there are party members- there has never been a former minister in the TC. It does not happen in other countries. In France, Laurent Fabius, Mitterrand’s former prime minister, chairs the similar Constitutional Council.
Three magistrates of the progressive TC (Ramon Sáez, Inmaculada Montalbán and Conde Pumpido) immediately requested – they have the power, according to article 4 of the regulation – a plenary session to verify the suitability of those appointed and that they take office. But the president of the TC, Pedro González-Trevijano, who must leave the Court (he was appointed by Rajoy 9 years ago) has refused. He argues that it is convenient to wait for the CGPJ meeting on the 22nd, so that the four new magistrates enter at the same time.
But there is no guarantee that the CGPP will do it this time. And the TC can not only accentuate its strange situation (the appeal against Zapatero’s abortion law is 10 years late), but to enter into a questionable moral and legal legitimacy. Can Trevijano, appointed 9 years ago by the Rajoy Government, continue to serve as president when the current Government has already appointed his replacement? Does Trevijano want to extend his term? What will happen if the next 22 the CGPJ continues without naming its magistrates?
Too many questions. The incompatibility between the PSOE and the PP to proceed with one of their clearest obligations -renew the CGPJ and the TC- threatens democracy with entering a swampy area. Let’s try to be objective. The Government has not always acted well or with a political nose, but the PP has stubbornly boycotted some renovations with which, as a result of the 2019 elections, it was going to lose the dominance it has had since the Rajoy era.
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And if Trevijano tried to extend his term, all the alarm bells would go off.