A bit of pedagogy in the midst of political noise. The constitutional Court (TC), as established in the Magna Carta, is made up of 12 members: four are elected at the proposal of Congress by a majority of three-fifths of its members, another four at the proposal of the Senate with an identical majority, and of the remaining four, two are elected at the proposal of the Government and two others by the General Council of the Judiciary (CGPJ). It is precisely the appointment of the magistrates of this last third that is at the center of the controversy. The unjustified delay of the CGPJ in appointing the two TC magistrates that correspond to it, in theory simultaneously with the two that the Government must designate, has led President Sánchez to make a move without waiting any longer. The Council of Ministers this Tuesday has appointed two magistrates: Juan Carlos Fieldjudge and former Minister of Justice, and Laura DiezProfessor of Constitutional Law, former General Director of Constitutional Affairs at Moncloa and member of the Consell de Garanties Estatutàries.
The Government has made a move and has passed the responsibility to the Constitutional Court itself, which must decide how to manage a unprecedented situation in which only half of the magistrates of this third have been elected. The TC, in this context, must communicate the appointment of the magistrates to the CGPJ to force it to unblock the two appointments that it is responsible for making and that, in the last five months, the eight members of the conservative sector related to the PP have been preventing. In the background of this lawsuit, more political than legalthere is the balance of forces within the TC: from a favorable correlation to the conservative sector, it would pass to another with a progressive majority.
From this point of view, on a legal level, the two appointments made by the Government fit into the provisions of the Constitution: they are “jurists of recognized competence with more than 15 years of professional practice.” On the political level, however, the partisan bias of his appointment is evident, especially in the case of magistrate Juan Carlos Campo, former Minister of Justice of Pedro Sánchez. All the opposition and even United We Can, member of the government coalition, have put the cry in the sky. In the case of criticism of PP, even as soon as they are founded, that Castilian saying of “I sell advice and I don’t have it for myself” can be applied. Indeed, in the last renewal of the TC (2013) the party now led by Alberto Núñez Feijóo opted for two people with a marked political profile: Enrique Lopezcurrent Minister of Justice of Madrid, and Francisco Jose Hernando, now deceased, who presided over the CGPJ and was a benchmark for his conservative sector. In the past, the PP had a TC president who was a party member -Francisco Pérez de los Cobos- and a magistrate -Andrés Ollero- who had been a deputy.
Obviously, the Government’s decision has a clear justification in the need to put an end to a practice of judicial filibustering forcing the conservative sector locked in to retain its majority pending a victory for the PP, although the repetition of practices of partisan bias weakens the Government’s decision to move to force the CGPJ to appoint its two magistrates in the TC. However, the generic appeal to the European mirror is not acceptable. In Europe there are examples for all tastes. In the case of France, the nine members of its Constitutional Council are appointed, respectively, by the President of the Republic and the presidents of the National Assembly and the Senate, at a rate of one third each (its current president is the former Prime Minister socialist Laurent Fabius). In Spain, both of them, what they should do is start with comply with the constitutionin the letter, and also in its spirit.