The Constitutional Court has once again staged the two blocs endorsing the reform of the law that prevents the General Council of the Judiciary (CGPJ) from making appointments while in office, in a judgment supported by seven votes in favor and four against. This reform was approved in April 2021 by the impetus of the PSOE and Podemos after the PP refused to renew the body of judges, in office since December 2018.
The two parties that formed the Government sought in this way to force the main opposition party to renew the body of judges after the end of its mandate. The idea was that the PP would find itself between a rock and a hard place if the Council, with a conservative majority, could no longer continue appointing magistrates to the high courts.
Both the PP and Vox appealed the law, claims that have now been dismissed. The presentation that has been carried forward has been written by María Luisa Balaguer, who defends the constitutionality of the reform. For the speaker, the law is what defines the functions of the body and therefore these functions can be modified or corrected legislatively.
The sentence affirms that the Constitution only determines, in a "clear and unequivocal" way, that the duration of the mandate of the members of the CGPJ is five years, a period in which they are in full exercise of their powers, and that it cannot be deduced of this provision the prohibition that the legislator limits the functions of the Council when the five-year term is exceeded.
The resolution explains that the "institutional anomaly" in which the Council lives, which has not been renewed for almost five years, cannot compromise the discretionary decisions that the body has to take.
On the other hand, the sentence rules out that there was any fraud in the law because the reform was proposed through a parliamentary initiative by the PSOE and Podemos and was not proposed as a draft by the Government. According to the resolution, the Constitution provides for this tool.
Judges Ricardo Enríquez, Enrique Arnaldo and César Tolosa and magistrate Concepción Espejel have announced a private vote on the sentence; all of them are considered from the conservative sector. They understand that this reform violates the "essential powers" for the fulfillment of the constitutional commitment of the CGPJ.
Tolosa had drawn up a second report in which he agreed on the unconstitutionality of the reform, a text that has not been approved and which Balaguer is now collecting for modification, in accordance with his, voted by the majority. Those who disagree consider that respect for the constitutional principle of division of powers requires that the development by the legislator "not denature the constitutional configuration of the CGPJ as an autonomous body created for the defense of judicial independence".
The individual votes express that the "drastic reduction of powers" to which the reform subjects the body of judges when its members have not been renewed "cannot be understood as respecting" article 122.2 of the Constitution"
