Mary Louise Balaguer (Almería, 1953), professor of Constitutional Law, professor of Journalism and writer, she has been a magistrate of the Constitutional Court since 2017 by the Senate, at the proposal of the Spanish Socialist Workers’ Party (PSOE). If she can be president of the new TC after the four positions now expired since last June 12 are completed, she will be. I would not dispense with the vote of other sensitivities different from those of the progressive sector. Neither “would enter a war & rdquor; or “fight & rdquor; to get it. Here are the essential sections of a conversation that she had with this newspaper at 10 o’clock in the morning last Monday, October 17, in her office on Calle Domenico Scarlatti in Madrid.
In this interregnum in which four seats are going to be filled in the Constitutional Court, you are campaigning… For the presidency…
Well I ain’t got nothing but twelve voters [ríe]. From Roman law it is a very dangerous campaign… yes because the day of reflection – typical of Roman law and to which at the time, in 2021, I made a private vote – would be prohibited one day before visiting the colleagues to that they vote for me If it were so, the corruption of that number of people would be much easier than, for example, in Roman law. [ríe]. Now when you say I’m running for…
I said he is campaigning, not running.
Yes, okay, maybe they have told me from other media. I consider it very important to attend to the media and it is one of the main fields that I think it is necessary to change or strengthen. Going to your question, I think that when the people who are going to join the court come, the president that they want will be chosen and that’s it. For me, the presidency of the TC is not a personal project. If I have enough votes, when the court is completed, I would like to be president. For me and for anyone it is an honor. But not to the point of creating a conflict. It is intended to be elected unanimously.
There is undoubted expectation across the board for the fact that we are going to a progressive majority of seven to five…
Ha ha. You’re making some science fiction court policy that may or may not happen, but about which I have no idea.
The CGPJ will elect two magistrates. One conservative and one progressive. And the Government will appoint two progressives. Now there are four. And three is seven…
All that… That progressive thing, you see, I don’t have such a clear idea of that division, according to my personal experience, eh, my draft sentences have come out practically unanimously in the vast majority of cases. I have made 106 particular votes (dissenting from the majority). I think that idea that exists has no real consequences. Perhaps it may seem strange to you, but in five years many so-called conservatives have voted for my very progressive sentences and vice versa.
We have had cases such as the state of alarm and a streak or sport of the so-called “setbacks & rdquor; to the Government by the right-wing media in each plenary session.
In the state of alarm, there could have been a certain polarization. But an agreement was tried and it did not work. And maybe the rapporteur [Pedro González-Trevijano] It would have been more open.
And what happened?
And… that each person exercises their individual vote. But an agreement was reached. The exhaustion and positions of intransigence, legitimate, did not achieve it. Believe me, I made great efforts with the rapporteur to reach a point of agreement. But there were individual positions – and they were within their rights – that prevented it.
The perception was that through this setback -made after the state of alarm- they sought to wear down the Government.
[Ríe] Look, these are readings… The blows were due to the decree-laws. I have a clear ideology, I am a Marxist, I do not understand an interpretation of reality without the class struggle, to whatever degree, but I am here to interpret the Constitution. And I think that all governments have these times to function by force of decree-laws.
In 2017, when Juan José González Rivas, a conservative, was elected president, the progressive sector nominated Fernando Valdés, a progressive, for the position of vice president. However, the conservative sector offered its votes to Encarna Roca, coming from an agreement between CiU and the PSOE, and she assumed the vice presidency. That came at the cost of her. She supported the unconstitutionality of the state of alarm… Is that picture repeated now? That is to say: the conservatives could offer you their votes to be president.
[Ríe] Of course, I have no idea if it could be repeated or not. No idea. I find it surprising to make inquiries about that because the new colleagues will have to come and see what scenario arises, beyond whether there is a left or right or any ideological position in which, I insist, I do not believe. Not everyone here talks to the press to exchange views on the court, which is my position. There are people who may have an interested version… I am not saying magistrates but people who are here and believe that they handle information. My version is honest. I have a very good relationship with all members of the court.
That scenario is completely unrelated to the court situation. Since it was renewed and the new president was elected unanimously. For example, in the vote for former President González Rivas, I abstained. I didn’t know him. But the summer of 2021 contributed to pacify the court, González-Trevijano left unanimously in November, as Juan Antonio Xiol as vice president. And regarding that scenario you mention, I have no idea and I don’t want to until the time comes.
Let’s see, long years have passed since the progressive sector has not had a president…
Well you say progressive sector, colloquially you can say it, I…
Lesmes, the resigned president, said in the CGPJ that no reference be made to groups. But there are.
I don’t know what was going on in the Council. But here I have voted sentences for and against. I never see life in my work from that ideological point of view because there is a field in which constitutional law can be developed without the need for those biases that may be present and that are legitimate
In his “presidential campaign & rdquor; you underline the relationship of the TC with the media.
It’s fundamental. The other day I read to you about the amparo appeal of deputy Alberto… Rodríguez, it seems to me that his name is, right? This person who has filed the appeal.
Yes.
That he would have to be restored immediately in his seat. Do you know how long it takes to substantiate an amparo appeal? First came the appeal against the sentence of the Second Chamber of the Supreme that led to the decision on the seat. And until that resource, priority, is not resolved, I can not make my draft. I will, but I have to wait. Quick measures cannot be taken to make the law work. Having said all this, amparo remedies are a capital piece of the functioning of the court.
Already in the specific case, Rodríguez’s appeal was presented in the TC at the beginning of 2021. With a request for a precautionary measure. A deputy sentenced to a sentence converted into a 45-day fine and disqualification has been expelled. And he asks that after that period the seat be restored. That precautionary measure – although they tell me that there is already a report on it – is not resolved nine months later. It’s been a year now since he was expelled. Therefore, the legislature is running out.
You will understand that I am not moving forward on this issue because anything I say could harm the parties. But I do say that the TC is not a court of ordinary jurisdiction and the position it should have is to establish constitutional jurisprudence. Beyond this problem, which I am sorry for, and I insist that I will not be the one to delay it when the main issue has been resolved. Quite the contrary. I always have a great interest in not delaying issues that can advance in parallel.
If the appeal against the sentence is going to be resolved first, the one in charge is Judge Santiago Martínez-Vares, one of those who is going to be replaced. Therefore, his successor will have to take over. And once resolved then the parliamentary appeal will be addressed. Come on, it will not be resolved until after the end of this legislature. And the president, shouldn’t he say this has to be resolved, the two resources together or separately, and give priority to the parliamentarian? How would the court recover from a disaster such as not resolving this resource in this legislature?
I wish the sentence was published and I could explain what I think about it, which is a lot, there would be other parallel reasoning. But there is one aspect that worries me about his intervention and that is that the president can distribute a paper, come on, this is what we are going to do. He will see, if I feel anything, if any principle is important in the jurisdiction, it is judicial independence. I have absolute decision on the matters that touch me, that come by an objectified turn. If the president could tell me let’s see what we do with this, this would be the biggest disaster of judicial independence. It is the judge who takes it to plenary. That said, you are partly right in what you say, we are facing a judicial system that is very improvable.
How would you like the TC to be at the end of your mandate if you are appointed president?
I think it had to show that it has undergone a renovation in the field of image, in which I include the relationship with the media. We have great intelligence, in the lawyers and in the media within our reach, all digitized, but we have an attitude problem, which takes us back to the 19th or 20th century. But not in the XXI. Justice at the end of my term -it would be my wish- should be partly modernized. I would like a constructivist law, that of the Italians like Luigi Ferrajoli, for example. Many resources must be admitted for processing regardless of what happens to them later. I am heterodox.
It is obligatory to ask about the reform of the Constitution even if it is the subject of the Greek Kalends. But now the Catalan government is proposing, for example, a Clarity Agreement to the national government in the style of the one that facilitated the self-determination referendum agreed in Quebec, Canada, in 1995. Can it have any fit?
It is true that the reform is a chimera, but we must continue to think about reformulating fundamental rights. I can’t talk about this about Catalonia right now. Yes, I can tell you that I took a dim view of how the court resolved the appeal for the unconstitutionality of the Statute voted in Catalonia. It was not the best sentence, although I respect it. Because he knew the one from Andalusia from within and they looked practically like two drops of water, the similarity is extraordinary. But the Catalan resorted and the Andalusian did not. It is a fact. And about what you are asking me about Canada, I have no idea.
How do you get along with the magistrates of the so-called progressive group, with Cándido Conde-Pumpido, for example, who arrived at the court at the same time as you?
Very well. He did not know Cándido Conde-Pumpido very well. I knew an uncle of his who was an Ombudsman in Andalusia. He is an extraordinarily prepared person. He has taught me a lot during these five years. I have tremendous affection for him.
And if he is the candidate of the progressive group, will you vote for him for president?
Of course if he has the votes I will be happy to vote for him. I have no personal interest. I want to pass through here with dignity.
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You would not dispense with sensitivities other than those of the so-called progressive group.
Light man. I would respect the tradition and it is that the people who are leaving, in their last three years in office -Ricardo Enríquez, Conde -Pumpido and I-, if an agreement were reached, I would respect it. And if my colleagues consider Conde-Pumpido the right person, for me it would be indisputable. It is that, in addition, the president does not really have any other capacity different from what the rest of us have, we are independent, it may be an institutional function, but not much more.