There are 12 days left for the expiration of the mandate of four magistrates of the Constitutional Court (TC). Two were appointed in 2013 by the Government of Mariano Rajoy: Pedro Garcia Trevijanocurrent president, and Antonio Narvaez (replacing, in 2014, the resigned Henry Lopez, caught driving his motorcycle without a helmet and drunk on Paseo de la Castellana in Madrid in early June of that year); and two by the General Council of the Judiciary (CGPJ), among them Juan Antonio Xiolcurrent vice president.
Although the two negotiators of the PSOE and the PP have opened negotiations in recent weeks, and although it was presumed, according to announcements by popular leaders, that the Andalusian regional elections would not hinder the processing of the renewal of the CGPJexpired since December 2018, and in its ninth year since its constitution in December 2013, the truth is that the only mutual pact that both formations are fulfilling is the pact of silence. The compromise between the Minister of the Presidency, Felix Bolanosand the PP’s Institutional, Justice and Interior Deputy Secretary, Esteban Gonzalez Ponsis to keep your mouth shut.
In government sources in which sectors of the judiciary water down, however, it is not clear that the new president of the PP, Alberto Nunez Feijoois for the work of renewing without delay the CGPJ and the TC.
paralyzed government
The Government, on the other hand, seems to be paralyzed in relation to a decision that is independent of the future and uncertain renewal agreement that it has been negotiating since 2018, first with the PP of Paul Married and now with the Nunez Feijoowhich is the appointment via the Council of Ministers of the two magistrates who will replace those of the conservative sector, Gonzalez Trevijano Y Narvaez.
Paralysis?
In two ways. The first is that the Council of Ministers should, on Tuesday, June 7, appoint the two magistrates which it is up to him, by mandate of the Constitution, to designate. There would be no problem postponing those appointments for a few days, let’s say, until Tuesday the 14th.
But right now there is a full vacuum. Judicial sources consulted estimate that the Government has relied too much on the Negotiating will of Núñez Feijóo and has failed to make two relevant decisions to overcome the paralysis.
The first: send a bill to modify the organic law of 2021 by which the expired CGPJ was prohibited from continuing to appoint magistrates, including TC magistrates.
And, secondly, to appoint the two magistrates that correspond to the Government to record that it is committed to comply with the Constitution although others, the PP, do not want to observe it.
progressives and conservatives
The renewal of the TC is done according to the constitutional norm by triples. In other words, the four magistrates who will see their mandates expire on June 12 next they have to be renewed by another four whose origin is, as has been pointed out, from the Government and the CGPJ, two and two, respectively.
But since the CGPJ is legally prohibited from appointing its two candidates -usually one of the conservative sector and another of so-called progressive sector-, the short list would only be renewed in halves, It already happened exceptionally in the UCD era, when the Government appointed its two magistrates, who took office without the CGPJ appointing their own because it was not constituted, a situation that was postponed for a few months.
Problem with the two appointed by the Government without the CGGJ doing it with its own: that the conservative majority of the TC blocks his inauguration. Because the Plenary must give the ‘nihil obstat’ to the incorporation of the new members. And with the argument that the shortlist must be renewed, the majority could stop the taking of office of the magistrates appointed by the Government by adding fuel to the constitutional fire.
question of majorities
If the modification of the organic law had been submitted to Congress, the government majority I would already have the certainty that the CGPJ could make its two appointments. But the government has fallen asleep.
The president of the TC, Pedro Gonzalez Trevijano, had described a solution to this puzzle. As the organic law in question is appealed before the TC by the PP and Vox, why not partially admit the appeals in the TC and declare unconstitutional only the prohibition to the CGPJ of appointing the two magistrates of the TC, an obligation that is above of any organic law since it emanates from the Constitution?
Problem: that the conservative majority can be directed to declare the organic law totally unconstitutional. And what would happen? than the current Expired CGPJ would come to life again and start a new wave of magistrates from the rope of the conservative majority.
“That looks like a sadducee trap of the PP. They want to declare the entire organic law of 2021 unconstitutional. From that moment on, the CGPJ would make the pending appointments in the Supreme, the superior courts of justice for another five years. Amen to blow to the governmentdue to the fact that its solution, the organic law that prohibited making new appointments would have violated the Constitution & rdquor ;, says a source consulted.
The strategy of the PP
The fact is that preventing the renewal of the TC means ignoring the new progressive majority. Because with the two magistrates appointed by the Government plus the progressive of the two magistrates that the CGPJ would appoint, they would alter the majority in the TC after nine years, which implies a progressive president in the court of guarantees.
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Both with regard to the TC and the CGPJ, the PP’s strategy has been to ignore the democratic majority in both institutions, in line with its qualification as a coup d’état of the motion of censure that in June 2018 evicted the PP from the Government. There are not a few who, within the PP, are tempted to gain more time and maintain their political control until Núñez Feijóo recovers the Moncloa and, in this way, give another twist to the judiciary and magistracy for their interests.
The usefulness of this strategy has been confirmed once again with the maneuver of projecting a threatening sword of Damocles on the pardons of the ‘procés’ with the ‘where I said, I say Diego’, four months later, and thanks to a change of magistrate.