The Constitutional Court will deliberate this Monday about the reform of the Organic Law of the Judiciary which, since March 2021, prohibits the General Council of the Judiciary from making discretionary appointments while in office, a situation in which the governing body of judges will complete five years in December, the equivalent of a full term. This legal reform, which has put several chambers of the Supreme Court on the brink of collapse by preventing the replacement of retired judges, will foreseeably be endorsed thanks to the votes of the progressive sector of the Constitutional Court.
There are two ruling projects, completely opposite. The one with the greatest support – the seven votes of the aforementioned progressive bloc – considers it completely constitutional that the law limits the powers of the Council when it has remained in office, given the “anomaly” represented by its lack of renewal, which corresponds to the Cortes. The alternative text – supported by the four judges of the conservative group – considers that said limitation of functions represents a violation of the Constitution, because it curtails the powers of a State body and thereby puts the independence of the Judiciary at risk.
The draft ruling that supports the prohibition of the CGPJ from making discretionary appointments of Supreme Court justices or presidents of superior courts of justice and provincial hearings, among other positions, has been prepared by Judge María Luisa Balaguer, professor of Constitutional Law. The alternative presentation has been prepared by Judge César Tolosa, member of the Litigation Chamber of the Supreme Court. Balaguer responds with his text to the unconstitutionality appeal presented by Vox, while Tolosa responds to the challenge formalized by the PP. Both challenges from the right-wing parties agreed on the essentials: denying that a law can modify what the Constitution provided for, by depositing in the Council of the Judiciary the powers to appoint senior officials of the judicial apparatus.
The majority criterion, included in Balaguer’s presentation, is contrary to these theses of Vox and the PP. It endorses the law that prohibits discretionary appointments, considering that the Constitution determines “in a clear and univocal manner, that the duration of the mandate of the members of the CGPJ is five years, a period in which they are in the full exercise of their powers.” . However, he adds, what the constitutional text “does not provide, in any case, is an indeterminate or indefinite extension of said mandate”, which is why “after the five-year period has elapsed without due renewal having occurred, nothing “opposes the legislator (…) being able to establish the legal regime of the Council in office in the terms that it considers appropriate to an extraordinary situation or institutional abnormality.”
This anomalous situation has been occurring for five years, throughout which the PP has blocked the renewal of the council, despite having opened negotiations that were later interrupted with changing arguments. In the last case—already under the leadership of Alberto Núñez Feijóo—, for the suppression of the crime of sedition and the reduction of the criminal offense of embezzlement. As a result of the blockade, the situation is critical in different instances of justice, especially in the Supreme Court, where there are 23 vacant positions, a third of the staff in the court that constitutes the top in all jurisdictional orders. The president of the Supreme Court, Francisco Marín, defined this situation as a “desolate panorama” at the opening ceremony of the judicial year, “urgently” demanding an agreement to renew the Council.
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The draft ruling that endorses the prohibition of discretionary appointments – the regulated promotions of judges and magistrates by rank, continue to be among the powers of the CGPJ in office – is based precisely on the anomaly represented by the lack of renewal of the Council. In this sense, the text argues that “the acting CGPJ must be able to develop the powers that constitutionally correspond to it, but subject to strict limits, which prevent this body, in a situation of extension due to the concurrence of a circumstance of institutional anomaly, from compromising the future decision-making capacity of the government of the judiciary.” The resolution also warns of the risk of political control of the Council indirectly, if a majority of whatever sign is maintained indefinitely, but once the institutions that determined its composition have disappeared.
“The suspension of certain functions of the Council,” says the majority report, acts as a guarantee “of its independence” from the Chambers, since it deprives them of the interest that they could have in keeping the dismissed Council active, so that “This will continue to exercise appointment functions with enormous weight in the appointment of judges and magistrates in certain positions.” And he adds that to prevent such risks, “the ultimate goal of the regulation of the CGPJ in office is none other than to ensure that all the ordinary powers of the Council are exercised in their fullness by those to whom they correspond within the five-year constitutional mandate. ”.
For these reasons, the draft majority ruling emphasizes that “there is nothing to object, in legal-constitutional terms, to a legislative option that seeks to alleviate, with a view to transitoriness, the effects of a possible anomaly”, such as the renewal of the council arrives at an undetermined date after having concluded its mandate. The text of the ruling considers, in short, that there is no constitutional obstacle for an acting council to have its powers limited. And this is because “the ultimate goal of the regulation of the CGPJ” with the expired mandate “is none other than to ensure that all the ordinary powers of the Council are exercised in their fullness by those to whom they correspond within the constitutional mandate of five years.” ”.
On the other hand, the thesis of the conservative minority is that the limitation of powers means that “the functions that precisely justify the existence of the Council are substantially affected”, such as those of intervening in the election and appointment of judges, “as a necessary element for guarantee the independence of judicial bodies.” The conservative sector also criticizes that as the reason for the reform to prohibit appointments, the Government argued that it was about facilitating renewal, since the ineffectiveness of this solution had been proven. The resolution proposed by Judge César Tolosa maintains that renewing the Judicial Branch is a “genuine power-duty” established by the Constitution, so that it cannot be restricted because “it is incoercible.” The reduction of powers, in short, represents for the magistrates of the conservative bloc “a denaturalization and an essential alteration” of the function that the Constitution attributes to the Council of the Judiciary, which implies its non-compliance.
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