The blockade opens a gap between the Judicial and Constitutional Powers

The drift caused in the Judiciary by the lack of consensus between the PP and the PSOE is generating ever deeper cracks.

Thomas Osborne
Thomas Osborne
06 September 2022 Tuesday 23:33
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The blockade opens a gap between the Judicial and Constitutional Powers

The drift caused in the Judiciary by the lack of consensus between the PP and the PSOE is generating ever deeper cracks. This blockade, together with the legislative reforms promoted by the Government to force the main opposition party to reach an agreement, is leading to an unprecedented situation.

In this game of dominoes the last piece is the Constitutional Court. Part of the General Council of the Judiciary (CGPJ) blames the guarantee body for its situation by putting aside and avoiding resolving the appeals against the latest reforms that affect the Judiciary and that could have stopped a situation that the President of the Council himself has rated "unfortunate".

Carlos Lesmes has publicly reproached the TC for having as a priority to resolve "an issue that affects the core of the State" and should have debated the appeal promoted by the PSOE and United We Can, which approved a reform of the organic law of the Judiciary that limited the functions of the CGPJ while the mandate has expired.

The background of that modification was to pressure the PP to stop blocking the renewal of the Council, with a conservative majority. The socialists believed that the popular were holding back the renewal of the body of judges while the Council continued to make appointments of magistrates at its convenience.

This modification was appealed before the Constitutional Court. Sources from the court of guarantees assured then that if the PSOE and PP did not agree and the blockade continued when the TC itself took office due to the departure of four magistrates, they would go to the bottom of the matter.

The explanation is that if the TC declares the reform unconstitutional, the CGPJ could make appointments again, including the two Constitutional magistrates that it has, as ordered by the Constitution.

But then the majority of the Government turned the screw again and modified the reform to allow the body of judges to make appointments, but only those of the TC, maintaining the limitations for the magistrates of the Supreme Court, superior courts of justice and hearings provincial.

Some sources of the body explain that the court has not been able to take the matter to the full because the rapporteur of the appeal has not yet prepared it. But that explanation does not satisfy the Council, which blames them for part of the situation.

If it had ruled and given them back their powers, the situation of collapse would lessen because, as the Supreme Court has already denounced, the highest Spanish court is on the verge of not being able to form chambers due to the lack of magistrates.

For this reason, there is a group of members of the Council, from the conservative wing, who are not willing to give in to what they understand to be "blackmail" by the Government to facilitate the renewal of four Constitutional magistrates.

They understand that the Executive is "twisting" the law at its convenience for its own interest, as it is precisely to achieve a progressive TC.

The calculation is that the CGPJ has to appoint two magistrates, and it is expected that one will be conservative and the other progressive. And at the same time, the Government has to appoint two of its own, which would allow three progressive magistrates to enter, passing the court from a conservative majority to a progressive one.

With the current composition, there is more danger that the reforms promoted by the PSOE will be overthrown, such as that of the organic law of the Judicial Power, as has already happened with the decrees by which the state of alarm was established to stop the pandemic.

A block of at least seven members -out of a total of 20- of the body of judges, do not want to make it easy for the Executive, which in its last reform set the Council a period of three months to make the appointments of the TC, time that expires on the next 12th.

Another part of the conservatives, including Lesmes himself, believe that an effort should be made to achieve two consensus magistrates and comply with the law, even if it is not to their liking.

This Monday, the president warned that he refused acts of "rebellion" within the body of the judges, words described as "unfortunate" by some of the members. Tomorrow all of them will face each other in the extraordinary plenary session convened by Lesmes and then the real options of achieving a consensus to unblock the TC will be tested.