The laws and other accumulated resources on which a TC, now progressive, must decide

If, as is foreseeable, the plenary session of the Constitutional Court this week or at the beginning of next week gives the go-ahead to the new four magistrates appointed by the Government and by the General Council of the Judiciary (CGPJ), the guarantee court will have a majority progressive after almost a decade of a conservative majority, something that will have consequences on laws promoted by the left, the majority of this same legislature, and appealed by the right for years.

28 December 2022 Wednesday 03:31
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The laws and other accumulated resources on which a TC, now progressive, must decide

If, as is foreseeable, the plenary session of the Constitutional Court this week or at the beginning of next week gives the go-ahead to the new four magistrates appointed by the Government and by the General Council of the Judiciary (CGPJ), the guarantee court will have a majority progressive after almost a decade of a conservative majority, something that will have consequences on laws promoted by the left, the majority of this same legislature, and appealed by the right for years.

No one is unaware that one year after general elections, the difference between seeing part of the Government's legislative agenda endorsed or knocked down can have significant electoral effects for the Executive branch and for the opposition.

There they are waiting for the verdict of the TC, the Abortion Law of José Luis Rodríguez Zapatero or star laws of Pedro Sánchez such as the Euthanasia Law, the Education Law, the Child Protection Law, the Rider Law, the controversial reform vote labor law or the Parliamentary law that regulates Catalan at school. The plenary of the TC also has pending deliberation on two reforms of the CGPJ promoted by the Government to try to force its renewal.

The president of the court, Pedro González-Trevijano, and Antonio Narváez (conservatives), appointed in their day by the Executive of Mariano Rajoy; and Juan Antonio Xiol (progressive) and Santiago Martínez-Vares (conservative), then appointed by the CGPJ, will be replaced shortly by Juan Carlos Campo and Laura Díez, by the Sánchez Executive, and by María Luis Segoviano (the three progressives). and César Tolosa (conservative), on behalf of the governing body of judges.

These are the most important resources that a Constitutional Court will have to resolve, which in the coming days will go from having six conservative and five progressive magistrates to seven progressives for four conservatives.

The Constitutional Court has pending resolution of several appeals on two reforms promoted by the Government on the Organic Law of the Judiciary to try to force the renewal of the governing body of judges. The first, approved in March 2021, to prohibit an expired CGPJ -like the current one that has had more than four expired mandates- from making discretionary appointments in the high courts, a limitation that has led to several chambers of the Supreme Court ( TS) on the verge of collapse due to the impossibility of filling the vacancies that have arisen since then. The second, approved last July, which returned to the acting body its power to designate the two magistrates that corresponds to it in the Constitutional itself, in order to carry out its renewal that crystallized yesterday.

In November, the plenary session of the TC agreed to study the merits of a PP appeal against this second reform and appointed the vice president, Juan Antonio Xiol (progressive), as rapporteur. He will leave the position when the renewal is effective. Previously, the TC admitted two appeals from the PP and Vox for the first reform and appointed Xiol himself and the progressive María Luisa Balaguer as speakers.

The TC should also rule on the appeals of PP and Vox to the last express reform of the law on the Judiciary via amendments to the reform of the Penal Code whose processing the court itself paralyzed when it was to be debated in the Senate, in the most controversial decision of this body in this crisis of justice. This reform sponsored by PSOE and Unidas Podemos was intended to pave the way for the renewal of the Constitutional Court and now it loses a good part of its purpose once the body is renewed.

The appeal presented by the PP, in June 2010, against the Abortion Law approved that same year by the socialist government of José Luis Rodríguez Zapatero, has been in a drawer for more than twelve years. The lack of consensus among the magistrates has been the main reason for the delay, since several drafts have been drawn up but the matter has never reached the plenary session.

The appeal presented by the PP focused on attacking the main novelty of the 2010 law: the consideration of abortion as a right of women in the first 14 weeks of pregnancy, and not as a decriminalized crime in certain cases as established by law of 1985. In addition, the appeal requested to suppress the possibility of 16 and 17-year-old girls terminating their pregnancy without the consent of a parent or legal representative, although they had the obligation to inform, and exceptions were contemplated.

The designated speaker will be the controversial conservative magistrate Enrique Arnaldo, who inherited the pending cases of magistrate Andrés Ollero.

Another of the laws that the full TC has avoided evaluating due to lack of consensus is the one that regulates the right to euthanasia, approved in March 2021 with the votes against the PP and Vox. In June of that year, Vox filed an unconstitutionality appeal against the law, which was admitted by the TC, although the formation of Santiago Abascal was denied the precautionary measure so that the rule would not enter into force, as happened that same month. of June. In September, the TC admitted another appeal, this one from the PP, against the norm, in which the alleged violation of various precepts of the Constitution was alleged, among which it mentioned the right to life, the right to dignity of the person and the principle of legal certainty. The designated speaker was the progressive magistrate Cándido Conde-Pumpido, who now sounds like a candidate for president of the guarantee court.

The law establishes that euthanasia may be carried out on patients who request it and who are in a context of "serious, chronic and disabling illness or serious and incurable illness, causing intolerable suffering".

Also pending is the eighth Law on Democracy Education, the Lomloe, also known as the Celáa law -by the minister who promoted the reform-, approved in December 2020 with the vote against the PP, Vox and Cs. In April 2021, the TC admitted two appeals from the Popular Party and Vox for processing, for which it appointed judges Antonio Narváez and Ricardo Enríquez, respectively (both conservatives), as rapporteurs. The appeal of the PP alleges that the law violates the freedom of parents to choose a center for their children and that it breaches the obligation of the State to recognize the vehicular character of Castilian as the official language. Vox requested in its appeal to the guarantee court that it annul the sections of the law referring to subsidized education, special education and the Spanish language.

The comprehensive law for the protection of children and adolescents, approved in May 2021 with a very large majority -except for votes against by Vox and the PNV-, entered into force a month later. It is another of the star laws of the legislature, challenged by Vox before the Constitutional Court. This is the first state law that protects minors against different forms of violence, including sexual abuse, a crime whose statute of limitations does not begin until the victim turns 35. It is known as the Rhodes law, due to the work of British pianist James Rhodes in raising awareness about these abuses, which he himself suffered as a child.

The TC admitted in October 2021 Vox's appeal, which alleges that the Rhodes law could violate, among other constitutional precepts, ideological and religious freedom, the right of parents to have their children receive the religious and moral training that is in accordance with accordance with their own convictions, the right to privacy and the right to effective judicial protection. Judge Arnaldo will be the rapporteur of the sentence that is handed down in his day.

The Constitutional Court has also not responded to the appeals of the PP and Vox, which it admitted for processing in September 2021, against the decree law regarding digital platform distributors, known as the Rider law and approved in May, which obliges delivery companies to hire their workers as employees. The Rider law went ahead after the government, employers and unions reached an agreement after months of negotiation. Previously, and after a long judicial battle, the Supreme Court recognized the riders as false self-employed when resolving a case of a Glovo delivery man from the Community of Madrid.

The TC also has yet to decide on the controversial vote in the Congress of Deputies for which the labor reform was approved in February of this year. The royal decree-law on urgent measures for labor reform, the guarantee of employment stability and the transformation of the labor market was approved by 175 votes in favor and 174 against, after the deputy of the PP Alberto Casero wrong and voted in favor. The president of Congress, Meritxell Batet, approved the vote, which allowed the coalition government to carry out the reform in extremis after losing the support it believed was tied to the two deputies from Navarra Suma. Both the deputy Casero and the Popular Parliamentary Group filed an appeal before the Constitutional Court, which admitted them for processing. The speaker will be the magistrate Juan Ramón Sáez.

Another of the issues that the plenary session must address is whether it protects the PP and Citizens against the Catalan law on the use of languages ​​at school and the decree on language projects approved in the Parliament of Catalonia, which prevent the application of the ruling of the Superior Court of Justícia de Catalunya (TSJC) that forced 25% of the classes to be in Spanish. In September of this year, the TC admitted the appeals presented by deputies of the PP and Ciudadanos in the Parliament against several articles of the Catalan law, considering that it violates the Constitution in several precepts related to the autonomy of the centers guaranteed by the regulations basic authority of the State and with high inspection as its exclusive competence, in addition to the competence of the State to regulate the use of Spanish.

Parliament approved in June this year the law on the use and learning of official languages ​​in non-university education, which recognizes the "curricular and educational use" of Spanish and reaffirms Catalan as the vehicular language, without setting linguistic percentages. A month later, the TSJC decided to raise a question of unconstitutionality against this regulation "for violation of Article 3 of the Constitution", which establishes that Spanish is the official language of the State, and also for considering that it violates the fundamental right to education and the Statute of Autonomy. Both the Prosecutor's Office and the State Attorney's Office reported in favor of raising this question of unconstitutionality and so did the Generalitat, alleging that if the TSJC has doubts about the new language regulations, it must refer it to the Constitutional Court so that the Government can defend it before that judicial instance. .

The Constitutional Court has not given an answer to the former deputy of Unidas Podemos Alberto Rodríguez either. In May of this year, the guarantee court admitted for processing two appeals presented by Rodríguez against the decision to withdraw his seat in Congress as a result of the sentence for which he was sentenced to a crime of attack on authority. The TC announced that the plenary session will rule on the order of the Supreme Court by which the execution of the sentence was ordered, as well as on the agreement of the president of Congress, Meritxell Batet, by which the deputy was informed of the withdrawal of his minutes, in October 2021. In July of this year, the TC Prosecutor's Office was in favor of protecting Alberto Rodríguez for the withdrawal of the seat, but not for the sentence that the TS imposed on him to one month and 15 days in prison for a crime of assault on authority, with the additional penalty of special disqualification for passive suffrage. The full court has yet to address the matter.

Another of the issues on which the Constitutional Court must rule is whether it endorses the original formulas for abiding by the Constitution that various nationalist and left-wing deputies have used when assuming their seat. "With loyalty to the democratic mandate of October 1 and to the Catalan people", "for the freedom of political prisoners and political exiles", "I promise until the creation of a Basque Republic", "for the Catalan Republic" are some of the formulas used to abide by the Constitution by deputies from Unidas Podemos, ERC, JxCat and Bildu in the inaugural session of the previous legislature.

PP and Vox appealed for amparo before the Constitutional Court, which in April 2021 agreed to study the agreements adopted by the presidents of Congress and the Senate on December 3, 2019, and the resolutions of the Board of Congress and the Senate of December 13. December 2019 and January 23, 2020, respectively, which validated the different oath formulas or promises of office of the deputies and senators who took office for the XIV legislature.

The doctrine of the Constitutional Court establishes that what is decisive is that compliance with the Constitution is complete. In 1990, the court ruled that, as long as compliance is clear, there is no problem in adding sentences. The pronouncement of the court of guarantees referred to the tagline "by legal imperative" with which three deputies of Herri Batasuna in Congress complied with the Magna Carta in 1989, who by the way were expelled from the chamber for adding this phrase and were denied the full status of deputies.

The controversy ended in the Constitutional Court, which in a 1990 ruling opted to avoid rigidity in the compliance formula. The court, presided over at that time by Francisco Tomás y Valiente, went into the substance of the matter when it came to reasoning its decision: "In a democratic State that relativizes beliefs and protects ideological freedom; which enthrones as one of its highest values political pluralism, which imposes respect on the representatives elected by universal suffrage as powers emanating from the popular will, an interpretation of the obligation to comply with the Constitution that puts a rigid formalism before all other considerations is not consistent, because In this way, the very Constitution whose observance is in question is violated".



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