Known as Spain’s legal watchdog, the CGPJ has 20 members – 12 judges or magistrates and eight lawyers or other jurists – who are elected by both chambers of the Cortes (parliament). The council’s mandate expired in December 2018, but Prime Minister Pedro Sanchez has failed to push through the appointments due to a lack of parliamentary support, particularly from the PP. Since then, the CGPJ has been operating on an interim basis, which has led to criticism from the European Union.
Spanish democracy has no precedent for an institutional paralysis like this that affects the judiciary in such a way. With the Supreme Court on the brink of collapse, the Constitutional Court cannot renew itself and the CGPJ (Consejo General del Poder Judicial: the governing body of the Spanish judiciary) was in office and blocked for three and a half years. Cause? The lack of a political agreement between the PSOE and the PP.
The Spanish newspaper Heraldo listed the keys that summarise this situation that has existed since 2018.
The blockade of the CGPJ as the origin
Three years, six months and twenty-six days. That is the time the General Council for the Judiciary has been in office, since December 4, 2018. A record in the history of the governing body of judges. Its current composition dates from the first term of office of Mariano Rajoy, almost nine years ago.
The consequences of this “constitutional anomaly” affect not only the normal functioning of the Council but also the Supreme Court and the Constitutional Court. These are two of the most important institutions that make up the Spanish democratic system.
The responsibility of the PSOE and the PP
Anyone with a legal career in Spain is aware of the cause of the blockade. The “lack of will” of the two main parliamentary forces to reach an agreement perpetuates the problem. PSOE and PP are attacking each other to take full responsibility for the thorny issue. That “party struggle,” as CGPJ chairman Carlos Lesmes says, is already gaining ground on acting by the law.
Failure to comply with the Constitution and the Law
From the outset, the CGPJ has, without any success, pushed for an end to this “non-compliance with the law”. Everyone involved acknowledges that they are breaking the rules. The last to do this is the leader of the PP, Alberto Núñez Feijoó.
Something else is the degree of responsibility that both parties admit in the said infringement. The Constitution stipulates a five-year mandate for the CGPJ and the Organic Law stipulates that the CGPJ will be renewed in its entirety once the five-year mandate has expired. The outgoing council will then remain in office until the new one takes office.
The parliamentary pressure from the government
The government of Pedro Sánchez has considered numerous parliamentary formulas to allow for the renewal of the Council. Below is the change of the election system of the judges in the council to an absolute majority. This was rejected due to doubts in Brussels and as a “gesture” to the PP.
Furthermore, the reform prohibits the appointment of the acting council. And now the government wants to partially repeal that same law to gain its majority in the Constitutional Court.
The ups and downs of the PP
As with all political negotiations, the PP put its terms on the table. Initially, the extension was refused as long as a “radical” party like Podemos had “any role” in it. The pardon by the Sánchez government of the Catalan politicians involved in the illegal declaration of independence and the agreements with the ERC or the Basque Bildu was further barriers. Later, the PP demanded a reform of the law that would allow the judges to elect the majority of the council’s members.
Now, after Sánchez’s latest manoeuvre, the bridges between the two sides have finally collapsed. The PP adds two new conditions for the dialogue to resume: that the PSOE withdraw the reform so that the CGPJ itself appoints the two magistrates to the constitutional court or that it extends it to extend the appointments to the Supreme Court.
In addition, the issue of the CGPJ goes into hibernation every time elections are approaching, not knowing when it will wake up. There was no agreement after the elections in Catalonia, Madrid and Castilla y León. And after the Andalucian elections, the panorama does not invite optimism, according to Heraldo.
The Collapse of the Supreme Court
The reform promoted by PSOE and Unidas Podemos to prevent appointments when the CGPJ is in power is not helping either. The Supreme Court suffers like no other from the veto. While warning of the “collapse” of the court months ago, the House of Representatives wrote to the Senate and Congress this week alerting the Senate and Congress to the “unsustainable” situation and the “extraordinary difficulties for its operation” resulting from the impossibility to fill the 14 vacancies. “It’s a situation that a state cannot afford,” Lesmes said.
This institutional paralysis has resonated in Europe, which is wary of what is happening in Spain. The requirements to renew and reform the CGPJ are constant. The latest was two weeks ago when European Commission Vice-President Vera Jourová visited Spain to argue for an “as neutral and independent as possible” and “unpoliticised” solution. Jourova pointed out that in almost all Member States it is the judges who elect this body and not the political parties, which is exactly the strategy advocated by the PP.
The adaptation of the PSOE to control the Constitutional Court
On June 12, the mandate of four magistrates of the Constitutional Court expired. Of these, two must be appointed by the government and the other two by the CGPJ, which cannot do this because it is not in the office. The PSOE launched the idea that the Constitutional Court could appoint its magistrates, but the Tribunal de Garantías (Court of Guarantees) cannot debate this because those appointments have to come from third parties.
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