The Government of Mariano Rajoy achieved with his two appointments in June 2013 –Enrique Lopezmagistrate related to the Popular Party, and Pedro Gonzalez-Trevijano, rector of the Rey Juan Carlos University and professor of Constitutional Law – the majority of the Constitutional Court – seven magistrates from the conservative sector against five from the progressive sector – in record time. He had a mishap a year later, on June 1, 2014, when López, on a motorcycle, skipped a red traffic light on Madrid’s Paseo de la Castellana on a Sunday at 7:30 in the morning, and tested positive for 1 .10 milligrams of alcohol per liter of inhaled air (against the legal limit of 0.25 mg/l). López was replaced by the then lieutenant prosecutor of the Supreme Court, Antonio Narvaez.
González-Trevijano’s nine-year mandate has expired, then, since June 12.
Do you have an idea of the yellow headlines on the front pages of the right-wing media-judicial union if an outgoing president of the TC, elected by a progressive majority, with his term expired, refuses to convene the Verification Plenary, scheduled for by the law of the TC, of the agreement by which his replacement has been appointed by the Government of the PP or PP-Vox?
What is this assumption about? Well, to the fact that there are objective and subjective reasons for the president of the TC to have abstained last Wednesday, November 30, when the Government formally requested -certification through- President González-Trevijano to summon the mandatory full verification of the two proposed candidates – the magistrate and ex-minister Juan Carlos Field and the former director general and professor of Constitutional Law Laura Diez-, instead of blocking his summons.
Shouldn’t he, in any case, express to the nine magistrates present – Ricardo Enríquez and Enrique Arnaldo absent – that having been appointed his replacement in the person of one of the two proposed and his mandate being expired for almost six months, the earliest appropriate was to apply article 4 of the TC regulation that gives the president the power to convene the plenary ex officio or to do so at the request of at least three magistrateshow was the case?
Gonzalez-Trevijanowhen responding to the recommendations of the media-judicial union -a pressure group of media and judges and magistrates-, perhaps it has not assessed that it is incurring in an undue extension of functions -previously a crime of 374 of the Penal Code, referring to the official who continue to exercise your position when you would have to cease in accordance with the law, and although it has been changed by that of usurpation, and the crime targeted has disappeared, how else to describe what you are doing if not as an undue extension of functions?
The fact is that the president of the TC opposed it and came to tell his colleagues that it did not matter if they delayed the call until the General Council of the Judiciary (CGPJ) names the two corresponding candidates on December 22. “What difference does it make?” she stated.
Problem: the TC has no power to urge the CGPJ. And, on the other hand, he had to give some response to the Government, instead of denying it.
It is true that the president of the TC could say “The one who warns is not a traitor & rdquor;that is, since last June it has sent messages to the Government and the Minister of Justice, Pilar Llop, in the sense that it would not occur to Sánchez to name unilaterally, outside the CGPJ, the two magistrates -one replacing him- because the Plenary of the TC with a conservative majority would not give them possession. He threatened then with the confrontation.
The unconstitutionality of confinement
The “stellar& rdquor; of González-Trevijano in the TC has been the declaration of unconstitutionality of the Government’s alarm decree on the pandemic.
Until September 2020, the members of the TC had reports on what would be the presentation of the magistrate who had to make it: Fernando Valdes Dal Re. His presentation, written on the basis of the work of the lawyer Javier Jimenez Campos, professor of constitutional law and former secretary general of the TC. He dismissed Vox’s appeal. But Valdés resigned from the TC and the presentation fell to González-Trevijano.
The new speaker changed lawyers and took six months to prepare his own. He recommended hiring Ángel Sánchez Navarro on a temporary secondment regime as a professor of Constitutional Law, and later commissioned him to draft the report on the state of alarm. Sánchez Navarro was an advisory member in the Department of Parliament and Institutions of the cabinet of the President of the Government Jose Maria Aznar, between 2000 and 2002.
Sánchez Navarro replaced the lawyer Jiménez Campos in the work of the presentation. And the draft and the new presentation maintained that although the confinement measures and the restrictions on leisure and commercial activity had been necessary, in line with the instructions of the World Health Organization (WHO), the home confinement decreed by the Government and approved by Congress was unconstitutional because the fundamental right of free movement was suspended -not simply limited- and for this the state of emergency should have been declared. Killing the key article of the decree law -number 7, on home confinement-, expressed the intention of the conservative majority of give one of the monthly blows – that’s what the media-judicial union called the government. The draft of the sentence was meticulously leaked before the vote, in September 2021.
González-Trevijano rode into the presidency of the TC on this sentence. Y managed to do it unanimously -to seal peace- given that it was only for nine months, until the expiration of his mandate on June 12, 2022. And here we are.
The gibberish is served
To all this, what are the chances that the CGPJ names the two judges of the TC on December 22?
Alvaro Cuesta, a negotiator for the progressive group of the CGPJ, believes that the conservatives should appoint two Supreme Court magistrates who respond to their orientation, even if one is a thoroughbred and the other labeled a progressive. “They want a vote and that in the midst of the hubbub no one comes out with the necessary 11 votes so that their related media blame us for maintaining our candidate, José Manuel Bandrés, who is blameless, and above all meets all the criteria agreed upon by both parties& rdquor ;, the vowel pointed out to EL PERIÓDICO DE CATALUNYA.
The conservatives want to elect their “own & rdquor; -a Pablo Llarena ex-president of the Professional Association of the Magistracy (APM)- and to the “alien”, in the person of magistrate Pablo Lucas, also of the Third Chamber of the Supreme Court, such as Bandrés.
But the right is divided. On the one hand, the members Juan Manuel Fernández and Juan Martínez Moya prefer the president of the Third Chamber. Cesar Tolosa. But there is more. The vocal Vicente Guilarte has announced that his candidate is Francisco Marín Castán, president of the First Chamber (Civil) of the Supreme Court, and current president of the Supreme Court, after the resignation of Carlos Lesmes.
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The gibberish, one more, is served.
But this Wednesday is a holiday. And in Congress the praises of the Constitution will be protagonists.