The President of the Constitutional Court, Pedro Gonzalez-Trevijanowhose nine-year term began on June 12, 2013 has expired last Sunday, was part of the plenary session of the TC that in 2016 dismissed a appeal of unconstitutionality which, among other legal regulations, challenged the partial appointment by only one of the Chambers (the Senate) of members to renew the General Council of the Judiciary (CGPJ) with the argument that it should be joint with the other (Congress).
González-Trevijano is now reluctant to leave his post with the opposite argument: only if he appoints the four magistrates whose terms have just expired (Gonzalez-Trevijanothe vice president Juan Antonio Xiol, Antonio Narvaez Y Santiago Martinez-Vares), will agree to give way to the new composition of the court.
In a judgment of December 2016 –Gonzalez-Trevijano He had already been in the TC for three years since his appointment in 2013 by the Government of Mariano Rajoy-, the court of guarantees ruled that the joint renewal of a constitutional institution -in that case, the CGPJ- was typical of a situation of “normality & rdquor;. But if two Chambers of different powers have to make the appointment, and one of them cannot, for whatever reason, the other is obliged to make its own appointments, without violating the Constitution, because in such a case the renewal is a simultaneous act. In other words: the impossibility of one of the powers does not transfer to the other.
No constitutional objection
The contested legislation had been introduced in 2013 by the PP, which enjoyed a majority in the Senate, but not in Congress.
In the appeal of unconstitutionality -presented by the parliamentarians of the PSOE-, the magistrate of the so-called progressive sector played the presentation Fernando Valdes Dal-Re. The ruling stated that the “new regulation seeks, in other words, that the Chamber that is in a position to fulfill its task of proposal carries it out effectively, even aloneand that the subsequent appointment by the Chamber that was not able to propose in time does not determine for successive renewals, already indefinitely, the full renovation impossible of the organ”. As he said, “the renewal in its entirety of the CGPJ [con la propuesta simultánea de Congreso y Senado] is a legitimate option of the organic legislator. Two consequences follow from it, in situations of institutional normality. The first, that both Houses have to proceed with their proposals, if not necessarily on the same date or, as the lawsuit erroneously says, in “unity of act”yes, as simultaneously as possible and always within the deadline…”.
And, be careful, he warned about the second consequence: “But the normative provisions do not guarantee, with their only binding statement, the full effectiveness of what is set forth in them, so that none constitutional objection it is possible to oppose that the legislator establishes subsidiary precautions for the hypothesis that, both Houses having to concur, separately, to the designation of the members whose proposal corresponds to them, only one of them, for whatever reasons, is in a position to fulfill its mission & rdquor ;.
a must power
In that case, he points out that each Chamber has power and responsibility consequent to designate, within the legally prescribed time, the members of their choice.
But here is the essential: “The proposal or designation that we are dealing with is, for each of the Chambers, a genuine power-duty. A power, without a doubt, but also, at the same time, a duty ‘ex Constitutione’, [desde la Constitución] with transferable terms here regarding legal provisions related to the renewal of this same Constitutional Court & rdquor ;.
That is to say, that the renewal of the four magistrates whose mandate has expired last Sunday, June 12, is, in terms of the sentence, a “duty power”, according to the Constitution.
Two of them (Pedro Gonzalez-Trevijano Y Antonio Narvaez, appointed by the Government of Rajoy) correspond to the Government; the others, to the CGPJ. The first, the Government, is in a position to make the appointments; the second cannot do so due to a law that prohibits the CGPJ, which expired in 2018 and is in its ninth year, since its constitution in December 2013, from making appointments.
four month margin
According to the law, the president of the TC has to direct four months before expiration of the mandates -in this case, the four of last Sunday, June 12- a communication, separately, to the President of the Government and the President of the Supreme Court and the CGPJ in which he must request the opening of the appointments process to make them on date.
The Government, which must and can appoint, has not appointed the two magistrates. Neither last Tuesday, June 7, nor yesterday, Tuesday 14. Because he hopes to reach a endless deal -now for after Andalusian elections-, but not for reasons of legal impossibility, as the message that has managed to “sell & rdquor; with media success the PP. Especially since he was fleeing from a confrontation in the TC in the middle of the electoral campaign.
because the president Gonzalez-Trevijano He made it known to the government environment, some time ago, that two possibilities were open.
If the magistrates corresponding to the Government were appointed, he as president has to convene a plenary session to verify compliance with the requirements of those appointed. In that case, he could refrain from summoning him because the other two from the CGPJ were not there and the issue remained up in the air. The other possibility: he summoned the plenary session, instead of abstaining he would participate together with the other magistrate, Antonio Narvaezand with the conservative majority the taking of possession of those appointed by the Government would be prevented.
Trevijano’s version
In the 2016 plenary session, González-Trevijano supported the partial renewal of the CGPJ. Perhaps because it was about dismissing an appeal from the PSOE.
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Fernando Valdesfrom the progressive sector, was the speaker, and did not hesitate to defend the partial renewal despite the fact that the appellants were from the PSOE.
Yesterday, consulted by this newspaper about the relationship between one situation and the other, he stated: “As far as I remember, there was no problem defending the partial renovation because it is what in a exceptional situation It is required. And that idea is precisely the one that can be applied to the current situation. The appointment is an obligation when it can be done & rdquor ;.