The Government leaves the door open to appoint its magistrates in the TC

Pedro Sánchez has not yet revealed his letters, but in Moncloa they warn that they are not going to throw in the towel in the face of what they consider to be the greatest institutional and constitutional crisis of democracy, and which they attribute exclusively to the Popular Party.

Thomas Osborne
Thomas Osborne
01 November 2022 Tuesday 00:33
6 Reads
The Government leaves the door open to appoint its magistrates in the TC

Pedro Sánchez has not yet revealed his letters, but in Moncloa they warn that they are not going to throw in the towel in the face of what they consider to be the greatest institutional and constitutional crisis of democracy, and which they attribute exclusively to the Popular Party. “We are not going to sit idly by,” they say.

For now, however, the strategy of the Government and the PSOE is to put all the spotlight on the responsibility they attribute to Alberto Núñez Feijóo in the "unilateral rupture" of the negotiations to renew the General Council of the Judiciary (CGPJ), which accumulates almost four years with the mandate expired. A crisis further aggravated by the resignation of the president of the governing body of the judges, and of the Supreme Court (TS), Carlos Lesmes, just over twenty days ago.

Without wanting to anticipate events, however, the minister spokesperson, Isabel Rodríguez, did warn yesterday that the Government's obligation is to comply with the Constitution and guarantee the functioning of the constitutional bodies. And among the options that the Government now has on the table as an alternative plan B, it does not close the door on appointing the two pending magistrates that correspond to it in the Constitutional Court (TC).

Although in Moncloa they insist that the CGPJ itself should also appoint the other two magistrates who in turn correspond to the court of constitutional guarantees, since it is still authorized to do so with the last approved legislative reform.

In Moncloa, however, they still do not want to anticipate what will be the alternative that they will propose before the new judicial mess, because first they will thoroughly squeeze a political framework that they assure is "a winner."

They thus warn, on the one hand, that "compliance with the Constitution does not admit blackmail", which is in their opinion what Feijóo wanted to impose on Sánchez by refusing to seal the judicial pact if he did not withdraw a reform of the Penal Code from his legislative agenda to lower the crime of sedition, in accordance with the ongoing negotiations at the dialogue table with the Generalitat to advance in the dejudicialization of the political conflict in Catalonia.

On the other hand, in the Government and the PSOE they will insist on highlighting the lack of autonomy and the absence of leadership of Feijóo, who they see as "tutored" by the toughest wing of the PP that Isabel Díaz Ayuso would represent. "But who really commands the PP?" They stress. This will be the strategy that they will maintain for now, because they assure that "non-compliance with the Constitution cannot be naturalized and normalized." And because they are convinced that it "wears down and weakens" Feijóo.

The uncertain scenario that opens after Feijóo's sit-in at the last moment, however, forces the Government to rethink what to do with the two positions of magistrates that it must appoint for the TC.

For the Executive, these two appointments are key to the validation of its main decisions. There is currently a conservative majority, which caused, for example, the overturning of the decree that established confinement due to the state of alarm during the pandemic.

The unconstitutionality of the decree was then determined with a very tight majority, and Executive sources are aware that, with other majorities in the body, the decision could have been totally different.

Sánchez promoted many of his decisions through royal decrees and knows that the TC is studying whether the way of approving certain measures under the umbrella of urgency is really justified.

In an attempt to avoid delaying its plans, the PSOE approved in July a reform of the organic law of the Judiciary to require the CGPJ to appoint its two magistrates to the TC before September 13. The explanation is that the Constitution establishes the renewal of the TC by thirds, which means that the magistrates must be elected four by four every three years, so that they fulfill a total mandate of nine years.

The internal debate opened in recent months, and which is now coming to the fore, is whether the Government can appoint its two magistrates without counting on those of the CGPJ, because the renewal then would no longer be done by thirds.

Within the TC, especially from the conservative wing, it is maintained that undertaking these appointments in this way could run the risk of being considered unconstitutional. Some magistrates even threaten to deny the placet to these two appointments, if the Executive ultimately goes it alone.

The other side maintains that the Government could proceed with these appointments without waiting for those of the CGPJ, especially after the body of judges is already a month and a half late. The conservative bloc of the CGPJ is blocking their appointments as a sign of their disagreement with the reform of the Socialists to set a term for them. Especially, after the previous reform in which they were prohibited from making appointments of TS magistrates, superior courts of justice and provincial hearings, while they are in office.

Ministerial sources defend that there is jurisprudence of the TC itself that would endorse the appointments without having to be exactly by thirds, but the reality is that the Executive was waiting to be able to make the four appointments at the same time, and thus avoid any future problems.

Within the Government, they defend that the delay is due to an attempt not to prejudice the renewal of the CGPJ, which is already on its way to being extended for four years, and in the hope that the body of judges will finally reach an agreement to put its two names – one progressive and one conservative – on the table.

Currently, in the TC there are six magistrates considered conservative and five progressive. With the names provided by the Government, they would become four to seven. The Conservatives should have one more magistrate, but the resignation of Alfredo Montoya due to illness left them with one less. This magistrate should be replaced by another approved by the Senate, but without an agreement between the PP and PSOE it will not go ahead.