Appointments of judges: the “crack” in Spain causes an unprecedented institutional crisis

The deepening rift between the two main political parties in Spain, the PSOE and the PP, increases the institutional crisis to such a degree that the Spaniards they had never lived in a democracy: for lack of political agreement, the Constitutional Court has just suspended a judicial reform of the coalition government of Pedro Sánchez through which it was intended unlock the renewal by members of that court.

This episode adds to the blockade that jeopardizes another renewal, that of the Council of Justice.

He’s the one watching the independence of judges and, due to the disputes between PSOE and PP, it has expired for four years.

“It is an unprecedented decision in 44 years of democracy,” President Sánchez said on Tuesday, referring to the decision of the Constitutional Court. He did it in an institutional statement that he made from the Palacio de la Moncloa.

“What he did with his decision was paralyze the action of the Cortes Generales in a matter which, moreover, involves the renewal of the Constitutional Court itself, according to what is established by the Magna Carta”, he added.

What was discontinued?

The Constitutional suspended the parliamentary process of the reform that changed the election of two candidates to that court whose mandate expired in September.

With your decision, admitted the precautionary measures presented by the PP and for the far-right party vox against the amendments proposed by the PSOE-Podemos coalition government, which were approved last week by the Congress of Deputies. On the other hand, its elaboration in the Senate was missing.

It is first time that the constitutional order urgently suspends a parliamentary debate and Sánchez assigned it to the conservative majority among the magistrates who make up that court.

“This situation originates in the decision that the main opposition party, the People’s Party (PP), took when it lost the elections and decided to violate the constitutional mandate. With this, since then we have witnessed an unprecedented situation in the history of our democracy, with blocking the renewal of the government of magistrates, of the General Council of the Judiciary, as well as of the Constitutional Court. A lock whose only purpose is to keep an earlier and more favorable composition for your guidance, ”the prime minister said on Tuesday.

In the case of the General Council of the Judiciary (CGPJ), which as the governing body of judges is responsible for appointing, supervising the functioning of the courts and demanding disciplinary accountability of all members of the judiciary, it is composed of 20 members and a president, who is elected by the full CGPJ and in turn presides over the Supreme Court.

In the election of the 20 members, half are proposed by the Congress and the other ten by the Senate, hence the need to agree on the renewal between the main political parties with parliamentary representation.

“We respect the resolution”

Sánchez assured that “although we do not share the decision, we respect the resolution adopted yesterday (Monday) by the current conservative majority of the Constitutional Court”.

But he announced that he will take “all necessary measures” to unblock the blockage in which the judiciary has been stuck for four years.

PP: “Strengthened democracy”

“Today (Monday) our democracy is strengthened”, said the leader of the PP, Alberto Núñez Feijóo. In a rule of law, all powers are subject to the law. In the face of noise and pressure, we will continue to defend Spain and the institutions without fear or concessions, from moderation and reason.”

President Sanchez he wanted to reassure the Spaniards: “In times of uncertainty you need serenity and even firmness,” he said on Tuesday. Serenity in strict compliance with the law; and firmness to make respect for the Constitution and the popular will freely expressed in the elections prevail”.

“Democracy demands respect for the law, respect for the will of the people, from which derives the legitimacy of all powers, including the judiciary. And for this I want to assure you that the Spanish government will guarantee strict compliance with the law, with the Constitution and absolute respect for the popular will and, consequently, for the constitutional mandate,” he concluded.

A few weeks ago and before this last decision of the Constitutional Court, clarion spoke with former judge of the Spanish National Court Baltasar Garzón about the critical situation that Spain is experiencing regarding the renewal of the Judiciary.

-How independent can Justice be if it is the political power that chooses the judges?

-Not exactly. But even if this were the case, there is a fundamental principle: in a democracy the judges have all the elements to be independent. If they aren’t, it’s because they don’t want to be. Or because they are afraid. Or because they submit to a political orientation. But they can be independent. They have an obligation to be. There are technical systems of appointing judges, such as appointment through a Council of the Judiciary, as in Spain. Also in Argentina the Superior Council of the Judiciary and the Supreme Court have even more power. They are extremely powerful, although they can be subjected to impeachment which can almost always be blocked in the Senate. Another thing is that this becomes a share distribution.

– Isn’t that what happens?

But this is the responsibility of politicians. Bad politicians. And to prostitute politics. Politics is a public service. It is not for personal use. The judiciary, in Spain and almost everywhere, has a tendency to be sharply conservative, very conservative or overly conservative. But it does not respond to the balance that exists in society. In Spain, if we look at the political composition, we have 51, 52 percent progressives, which is why the left coalition governs. And 49 percent, conservatives. If that reverses in the next election, the percentage won’t vary too much. So why are 85% of judges and prosecutors conservative? Something happens. Justice does not answer to the citizens it has to serve.

-Everywhere there is a certain weakness for the management of the Supreme Court.

It’s not a weakness. It is a clear intention of the executive: to have control of the judiciary. But even this is almost natural, because whoever exercises political power has an executive capacity that judges do not have. Check and balance mechanisms need to be established. When it comes to the total separation of powers, I do not agree. That is, yes to the division of powers. But division is not the same as separation. What needs to be there is a counterweight between the different powers of the state. But all form the state. Those checks and balances are what needs to work. Of course, when one advances over the other, problems arise, but these frictions must also be factored into the formula for resolving these conflicts. Today, in the world we live in and in the responsibility judges have to protect human rights, the interpretation of the law must necessarily be progressive.

Madrid. Corresponding

ap​