The crisis of the judicial power lands this week in the Constitutional Court. The president of the body, Cándido Conde-Pumpido, has proposed a monographic plenary to give an outlet to one of the conflicts that the General Council of the Judiciary (CGPJ) has paralyzed. The court must decide whether or not to approve the reform of the law that prevents the appointment of magistrates by a CGPJ in office, which is generating a collapse in the Supreme Court. The positions of the twelve magistrates who make up the plenary are opposed in two blocs, a clash that will be evident at the meeting today as a reflection of an irresolvable situation within the judiciary.
Two and a half years ago, PSOE and Unides Podemos promoted a reform of the Organic Law of the Judiciary (LOPJ) to prevent the governing body of judges from making appointments within the judicial career while in office. This amendment to the law was a response to the blockade that the PP maintained since December 2018 for not renewing the CGPJ, then and still now with a conservative majority. The PP, initially with Pablo Casado and then with Alberto Núñez Feijóo, has repeatedly refused to fulfill the constitutional mandate to renew the CGPJ in recent years, claiming that before changing the twenty members that make it up, the election system so that it is the judges and not the Parliament who elect them.
For this reason, Pedro Sánchez pushed for a reform of the law so that, at least while the body was in office, it could not continue to make appointments of magistrates, with its eyes set mainly on the Supreme Court. This reform was appealed to the Constitutional Court by the PP and Vox. It took more than two years for the body to resolve it. At the beginning, with Pedro González Trevijano as president, he did not want to face resources with clearly political aspects in a turbulent moment. With the arrival of Conde-Pumpido, elections have been chained together, first the regional and municipal ones and then the general ones, which has delayed the study of the issue. The president has now chosen to fix it between the failed investiture of Feijóo and the foreseeable one of Sánchez. In this way, in view of a possible new socialist government, this matter is resolved for the new legislature. There are two reports drawn up by two different magistrates to resolve each of the appeals. They are two presentations with two absolutely opposite criteria. That of the progressive María Luisa Balaguer defends the constitutionality of the reform because she understands that it is in line with Article 122 of the Magna Carta: "The organic law (of the CGPJ) will establish its statute and the regime of incompatibilities of its members and their functions, in particular, in matters of appointments, promotions, inspection and disciplinary regime”. For the speaker, the law is what defines the functions of the body and therefore these can be modified or corrected legislatively, as maintained by sources in the court.
The other paper, by the conservative César Tolosa, defends that the reform approved in April 2021 is clearly unconstitutional because the limitation in the appointment of magistrates is affecting the functioning of the courts and therefore violates the effective judicial protection of people who can be judged, collected in article 24 of the Constitution.
The approved reform had a critical point because it also affected the renewal of TC magistrates, fixed in the Constitution itself. The fact that they were not renewed could indeed contravene the Magna Carta. However, in view of this obviousness, the Executive proposed a counter-reform to solve this initial error and avoid a "pulling of the ears" of the TC.
Court sources assume that Balaguer's presentation will be the one that will go ahead, even if some corrections need to be made, which will mean support for Sánchez. Sources in the progressive sector explain that the guarantees body cannot be expected to resolve the blockage of the CGPJ. The TC, they clarify, can only study the constitutionality of the reform without going into assessing the repercussions it could have due to a lack of agreement between PSOE and PP, with no appearance of resolution in the short term.
