The Popular Party wins the game. The Government of Pedro Sánchez will not appoint before the renewal of the General Council of the Judiciary (CGPJ) -no date yet- the substitutes of the two magistrates appointed by the government of Mariano Rajoy -the current president Pedro González-Trevijano and Antonio Narváez- whose mandates expire, after nine years, next Sunday, June 12.
It is not a peaceful solution. Sánchez’s executive has captured the PP’s message and of the conservative majority of the court of guarantees: the two appointed by the Government would not receive the mandatory placet of the TC, which must examine the appointments, because the two magistrates would need to be appointed by the expired CGPJ which, according to the current organic law of 2021, you cannot make appointments. If the list is not renewed, that is, the four, the two from the Government and the two from the CGPJ, nothing.
González-Trevijano and Narváez, the two expired mandates, are part of the conservative majority, and if they abstain from deciding on the magistrates that the Government would appoint, the progressive majority (Juan Antonio Xiol, Maria Luisa Balaguer, Cándido Conde -Pumpido, Ramón Sáez and Inmaculada Montalbán) could impose his inauguration against the conservative minority (Santiago Martínez-Vares, Enrique Arnaldo and Concepción Espejel)
But neither González-Trevijano nor Narváez, according to sources consulted by EL PERIÓDICO, are called to andana. Y have made it clear that they do not plan to abstain. If the Government presents its candidates -here is the message- those two votes would allow “resist & rdquor; their own substitution, with which they would prolong the exercise of their functions beyond their expiration date, on Sunday, June 12.
the Andalusian key
And, above all, it would create a confrontation between the Government and the majority of the TC, backed by the PP and Voxin the midst of the Andalusian regional election campaign, which already predicts a favorable outcome for the right and extreme right, while a new defeat for the PSOE after Castilla y León, with a new constitutional crisis cleverly presented by the media of the right – alas for Sánchez’s inability to govern without causing trouble! – the situation could get worse.
Therefore, the Government understands, according to sources consulted, that this is not the time to fight appointing through the Council of Ministers, let’s say, this Tuesday, June 7, for example, the two magistrates to replace the two who are going to expire on Sunday, June 12. Nor until after the renewal of the CGPJ which, in any case, if it occurs, will be after the elections in Andalusia. The PP does not want to open a flank in the campaign so that Vox attacks it for negotiating with Sánchez. Go retro! Meeting the deadlines set by the Constitution is not among his priorities.
The TC, then, would remain pending the renewal of the CGPJ and this will depend first on the result of the Andalusian electionsalthough government sources estimate that Alberto Núñez Feijóo will sign that renewal a posteriori.
The conservatives, without complexes
The conservative majority of the TC feels strong. And without complexes. After a parenthesis of almost seven months, that majority, led by the president of the Constitutional Court, Pedro González-Trevijano, has returned -after knocking down the two states of alarm- due to its privileges of blows to the Government, considering unconstitutional the legal reform (law / 3/2020) that gave the Superior Courts of Justice the power to authorize or veto the measures against covid-19 adopted by the Autonomous Communities -approved by an overwhelming majority, with the support of the Popular Party, in the Congress and Senate- thus completing the demolition of the legal scaffolding applied in the face of the pandemic.
The TC changed composition last October with two new conservative members -Concepción Espejel and Enrique Arnaldo-, but voting discipline has remained untouched. Even some conservative members who, when examining the first draft of the sentence by the then rapporteur, Andrés Ollero, had expressed their disagreement, now, before Enrique Arnaldo’s presentation, they have considered it more complete, changing their initial criteria.
The majority believes that the PP is right in criticizing the Government’s measures and legislation against covid-19. In short: that he should have promoted a new law, the pandemic law, instead of applying the state of alarm law. And this idea is what is behind the unconstitutionality of states of alarm and confinement and the requirement that the Government should have declared a state of exception.
The progressive minority of the TC has already announced a particular vote. It is interesting to point out that, according to the judges Conde-Pumpido, Balaguer, Montalbán, and Sáez, it was the Government of José María Aznar, in 2000, that attributed control of the measures limiting fundamental rights to the contentious-administrative jurisdiction. In this regulation, jurisdiction was assigned to the courts, while in the one approved in 2020, a distribution was made between courts and High Courts of Justice, depending on the individual or general nature of the measures.
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According to the magistrates who will cast the particular vote “The annulled regulation is perfectly constitutional because it has express coverage in article 117.4 of the Constitution and it does not affect at all the separation of powers or judicial independence & rdquor ;. Precisely the article states that “the courts and tribunals may not exercise functions other than jurisdictional power, except those that are expressly attributed to them by law in guarantee of any right & rdquor ;.
But the roller is the roller. And on this occasion, the conservative majority has felt, if possible, stronger despite having a magistrate who suffers from a long illness, Alfredo Montoya, because he has obtained the support of a contentious-administrative magistrate of the stature of Juan Antonio Xiol, from the so-called progressive sector.