In search of a Constitutional Court with a sense of State

The institutional sense finally prevailed in the judiciary and put a stop to a crisis that was advancing without brakes.

Thomas Osborne
Thomas Osborne
30 December 2022 Friday 21:32
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In search of a Constitutional Court with a sense of State

The institutional sense finally prevailed in the judiciary and put a stop to a crisis that was advancing without brakes. The crossover of accusations in recent weeks, between parties, institutions and powers made even King Felipe VI warn of the seriousness of what was happening in his Christmas Eve speech, as he already had to do at the height of the process.

Last Wednesday, the progressive sector of the General Council of the Judiciary (CGPJ) gave its arm to twist, assumed the conditions of the conservatives and put an end to one of the legs of this crisis. Since this week, the Court has a progressive majority of seven magistrates against four conservatives. The blockade in the judiciary continues due to the PP's refusal to renew the governing body of judges, but not in the Constitutional Court.

Who wins? Who loses? Who benefits from all this and who loses? These are the questions that have been around in recent days to try to understand this gibberish of the utmost importance for the rule of law and extraordinarily complex in all its aspects.

It is evident that the Government urgently needed a change of trend within the Constitutional Court. The setback of the court of guarantees to the management of Pedro Sánchez, like the one that derived from the declaration of unconstitutionality of the state of alarm during the pandemic, marked the path of what could come.

Hence the importance of the Constitutional Court having from now on a progressive majority of which, from now on, two like-minded magistrates are part, the former Minister of Justice, Juan Carlos Campo and the former Director General of the Presidency, Laura Díez.

But the key was in a third magistrate who would ensure a progressive majority even in the entirely probable case that Campo and Díez -given their previous links to the executive- are challenged in all matters addressed by the Constitutional and affect the Government .

That magistrate was to be appointed by a General Council of the Judiciary controlled by the conservatives which, in accordance with the Constitution, was to appoint two candidates, one progressive and the other conservative.

The progressive sector within the CGPJ clung to the fact that the designated person was José Manuel Bandrés, a Supreme Court magistrate who was opposed by the conservative sector of the governing body of judges from the outset.

For five months this sector has played the mistake of refusing to elect Bandrés and thus avoiding a reversal in the TC, despite the fact that the mandate had already expired and a law forced them to do so since last September 13.

However, when at the beginning of this month they saw that the Government was going to change the law again to force these appointments, the strategy of the conservative sector turned upside down and they proposed two candidates: one of their political sensitivity and the other progressive, although they remained the veto to Bandrés.

On their first try, the progressives refused to accept the deal offered by their colleagues. However, then something happened that no one expected. The decision of the conservative majority of the Constitutional Court to accept, on the 19th, the very precautionary measures requested by the PP to stop the law with which the parliamentary majority tried to force the renewal of the Constitutional Court itself led the Government and the progressives of the General Council of the Judiciary to drop Bandrés, as a lesser evil, and accept the candidacy proposed by the conservatives. It included a progressive magistrate, María Luisa Segoviano, the first woman to become president of one of the Supreme Court chambers.

Segoviano will be a key piece in the balance that measures the trend of the Constitutional Court. To begin with, his vote will be essential to decide who will be the new president, either Cándido Conde-Pumpido or the also progressive María Luisa Balaguer. If the four conservatives supported the latter – to the detriment of the former State Attorney General – Segoviano would have the deciding vote.

The president who is designated in the next plenary session, already with the new composition, will have the job of trying to return to the consensus recovered in 2014, four years after leading the biggest clash ever known, the one that caused the sentence of the Statute and that It constitutes the most serious precedent until what happened these weeks.

As of 2014, the court managed to weave unanimous consensus on the key issues. The magistrates, both conservative and progressive, made an effort for years to reach pacts in the face of the most important challenge that democracy had suffered, such as the process.

Thus, the court recovered unanimity to declare unconstitutional the declaration of sovereignty approved by the Parliament and this sentence, through which Catalonia was prevented from unilaterally calling a referendum on self-determination, marked a line of unanimity within the court.

The consensus was preserved until the last few cracks appeared, also because of the Catalan question. Three magistrates with a progressive sensibility began to vote against the majority, especially with regard to the right to political participation of the pro-independence leaders, and once the process ended, tensions increased.

The direct clash between blocks was clearly reflected a few days ago on the occasion of the reform of the Judiciary, with accusations such as breaking the law for interfering in the legislative branch.