Unpublished decision in Spain: the Constitutional ‘gags’ Parliament on its own reform

Spain is witnessing an event that is unprecedented in the country and neither in the European countries around it. The Constitutional Court (TC) has prevented the Senate from voting on and approving two amendments that would reform the procedure by which the magistrates of the Constitutional Court itself are renewed.

By six votes to five, the conservative bloc against the progressive bloc, the high court has decided for the first time in 44 years of democracy paralyze a pending law at the request of a parliamentary minority.

The Popular Party (PP), the main opposition party, filed an appeal with the TC against the processing of two reforms of the Judiciary promoted by the groups in the Government and endorsed by the parliamentary majority. In it, he asked how caution, until the appeal is resolved, that the voting in Congress and the Senate be paralyzed. The high court has admitted for processing the appeal and decreed the requested precautionary measure.

For its part, the Senate has decided to continue with the processing of the bill, which, among other things, includes the elimination of the crime of sedition, replacing it with another of aggravated public disorder, and the reform of the crime of embezzlement. It will do so by extracting the two amendments that have caused the controversy.

Recused magistrates

After the presentation of the appeal of the Popular Party, Unidas Podemos, the minority partner in the coalition government, presented a letter in which it requested to challenge two magistrates of the Constitutional Court: the president of the organization, Pedro González-Trevijano, and Antonio Narváez . Both are of conservative affiliation and are part of the magistrates that must be renewed.

They alleged that both are close to the PP and that they have a conflict of interest, since their mandate has expired since last July and would be affected by the reform, since they would be immediately replaced by the two candidates proposed by the Executive.

However, the Constitutional Court, with the vote of the two challenged members, has decided that this it is not the right procedural moment to take into consideration the recusals. If these two magistrates were separated from the deliberation, the balance between progressives and conservatives would change, making the former a majority.

What does the appeal argue?

The amparo appeal that was presented by the PP and admitted for processing by the Constitutional Court, which has decreed the precautionary measures that have paralyzed the vote in the Senate, is directed against a decision of the Board of Congress of the Deputies.

It is argued that the reform of the Judiciary had been proposed in the form of two amendments that had no relation to the purpose of the bill to which they had been attached.

The PP alleges that it is not the proper procedure to address a reform of this magnitude because the amendments are not discussed in Parliament, but are only approved or rejected, which steals the parliamentary debate on these issues.

What do the parties that support the reform argue?

The parties in favor of carrying out this reform add up to 183 deputies and bring together a majority of the parliamentary arc, including the two political formations that are part of the Government and that promoted the reform.

In this spectrum it is argued that it is implausible that the Constitutional Court interferes in the work of Parliament. They remember that their work focuses on ruling on the constitutionality or unconstitutionality of the norms emanating from the Cortes, which represent the sovereignty of the people.

It is denounced that the General Council of the Judiciary (CGPJ), whose members were appointed by the PP and whose mandate expired four years ago, has refused to renew the TC; and that now the TC, with several members also appointed by the PP and also with its mandate expired, prevents Parliament from exercising its functions and carrying out a reform that unblocks this situation.

Where does the problem come from?

The origin of the problem is located in December 2018. Then the mandate of part of the members of the CGPJ, the governing body of judges, expired. Since then the Popular Party has refused to negotiate its renewalwhich requires the agreement of two thirds of the parliamentarians, so its participation is essential.

In turn, the CGPJ must make the appointment of two of the four members of the Constitutional Court who saw their mandate expired six months ago. The Executive must propose the other two, as it did months ago. All four must take possession simultaneously.

The conservative members of the CGPJ have delayed until now the appointment of the two members that correspond to them, failing to comply with the term dictated by the Constitution, for which reason they also keep the appointments that depend on the Government paralyzed.

In this situation, the Government promoted the reform of the election system for the members of the Constitutional Court in order to unblock part of the judiciary. And he did it in the form of two amendments that he attached to the bill that reforms the Penal Code.

What is the paralyzed reform?

The reform that has caused the current controversy has four fundamental points:

  • The establishment of a deadline so that the members of the General Council of the Judiciary appoint the candidates for the renewal of the Constitutional Court, thus complying with the terms stipulated by the Constitution.
  • Criminally responsible to the members of the CGPJ who do not meet these deadlines.
  • Change the election system going from a three-fifths majority to the election of the two most voted candidates.
  • Eliminate the requirement that the Constitutional Court itself give the approval to the newly elected candidates to integrate it.

What will happen now with the reform?

Predictably, the reform will also go ahead, although with a certain delay in the deadlines that the Government headed by Pedro Sánchez intended.

Más País, a progressive minority formation represented in the Congress of Deputies, has already registered a bill in the Lower House to process this reform. The new legislation has the explicit support of the majority of the Chamber, so it is taken for granted that it will go ahead.

Why are deadlines important?

The deadlines are important because the Executive wanted to ensure that the renewal of the Constitutional Court would lead to a new progressive majoritywhich reflects the result of the polls, as mandated by the Constitution.

If the reform had gone ahead next Thursday in the Senate, when it was expected to have been voted on after the green light from Congress last week, the Government would have ensured the inauguration of its two candidates plus one progressive and one conservative appointed by the CGPJ.

For their part, the claim of the conservative members of the CGPJ, the majority due to the four-year blockade being carried out by the PP, was to appoint two conservative members, thus maintaining the current majority of the Constitutional Court.

This claim would be behind the delay in carrying out their appointments, which is seen as a measure of pressure to force the acceptance of their two candidates to unblock the situation.

Pedro Sánchez denounces “spurious media”

Pedro Sánchez, who has appeared this Tuesday to make an institutional statement, has described as an “unprecedented situation” the “blockade of the renewal of the judges of the CGPJ and the Constitutional Court” that has been maintained for more than four years.

The Chamber during the Plenary Session.

According to the Spanish president, the purpose of the Popular Party is to retain “for spurious media” a power that the citizens have not given them at the polls, which he has defined as a “serious fact”.

“For the first time, the legitimate representatives of the Spaniards are prevented from carrying out their work”, Sánchez stated about “facts that are unprecedented in democratic history” from the country.

The president explained that he understands the “outrage” of the Democrats at feeling “a basic principle has been violated” and the “concern” of the citizenry in the face of the serious institutional clash.

However, Sánchez has assured that the Government will abide by the resolution adopted by the Constitutional Court, despite not sharing it; but he has warned that his Executive “it will adopt whatever measures are necessary to put an end to the blockade” of the Judiciary.

Thus, he has maintained that they will carry out measures to respect the Constitution and the result of the 2019 elections, because “democracy requires respect for the law and the popular will from which all powers emanate, and also the Judiciary “.

The Congress, the Senate and the Executive participate in the election of the members of the CGPJ and the Constitutional Court. Neither of them are jurisdictional bodies, that is, they do not dispense justice. The first is in charge of governing the Judiciary and its main task is to appointment of senior officials, as members of higher courts; while the second must analyze the constitutionality of laws issued by the national Parliament or regional Parliaments.

It is a constitutional mandate, that is, the Spanish Constitution of 1978 states that Parliament, as the representative of the sovereignty that resides in the Spanish people, is in charge of proposing and approving the appointment of part of the members of the CGPJ with a a three-fifths majority, thus forcing parliamentary agreement.

Thus, compliance with the Constitution requires that the times it includes be respected and that the appointments of members of the Judiciary respect the sensitivity of society at all times, expressed through the ballot box.

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