“The Government is going to comply with the Constitution and will appoint its two magistrates in the Constitutional Court,” Pedro Sánchez announced last week. After a five-month delay, in Moncloa they had been waiting for long weeks for the General Council of the Judiciary (CGPJ) to take the initiative and agree on the other two magistrates of the Constitutional Court (TC) that it is responsible for appointing. But the confirmation that the conservative sector of the CGPJ was going to continue blocking these appointments, perhaps indefinitely despite the pressure from the progressive wing of the governing body of the judges and from the Executive itself, has led Sánchez to strike a blow on the table : The Council of Ministers has approved this Tuesday, as confirmed to La Vanguardia in Moncloa, the appointment of its two magistrates for the TC, without waiting any longer for the CGPJ.
Sánchez, in addition, has chosen to launch an ordeal, by appointing his Justice Minister, Juan Carlos Campo, as magistrate of the TC until July of last year. It is the same strategy that the Chief Executive already undertook when he appointed Campo’s predecessor in the Ministry of Justice, Dolores Delgado, as State Attorney General in February 2020. That decision was already understood as a “declaration of war” by part of the Popular Party, then led by Pablo Casado, and by the conservative sector of the judiciary. Campo, head of the Justice portfolio when the Government granted pardons to the independence leaders of the process, was a member of the Judiciary between 2001 and 2008, and later Secretary of State for Justice between 2009 and 2011, in the Executive by Jose Luis Rodriguez Zapatero. Between 2016 and 2020, he was a PSOE deputy in Congress.
The institutional crisis caused by the blockade of the PP to the renewal of the CGPJ, whose mandate expired almost four years ago – the agreement that was finalized with the Government was dynamited by Alberto Núñez Feijóo last October, due to Sánchez’s decision to reform the crime of sedition of the Criminal Code-, was also transferred to the Constitutional Court, due to the delay of the conservative sector of the governing body of judges to designate its two magistrates for the court of constitutional guarantees. And, six months after municipal and regional elections in May that will be decisive for the next general elections, there is only a glimpse of the worsening of this institutional and constitutional crisis.
The Council of Ministers has approved this Tuesday the appointment to the Constitutional Court of the former Minister of Justice Juan Carlos Campo and also that of the Catalan Laura Díez Bueso, until a few months ago general director of Constitutional Affairs and Legal Coordination of the Ministry of the Presidency of Félix Bolaños, and now vice-president of the Consell de Garanties Estatutàries de Catalunya.
In this way, the Executive makes effective its threat to designate its two members that it is responsible for appointing, without waiting, as prescribed by the Constitution, to do so in block with the General Council of General Power (CGPJ), where the conservative sector is blocking for almost three months the designation of the other two. The renewal of the four magistrates who finished their mandate last June would lead to a change of majorities in the TC, where the conservative sector would no longer be the majority.
The PP has already raised objections to these two appointments, considering that they are “not suitable” when considering the candidates “sent by the Government” to “colonize” the TC and “safeguard the legislation of the Government itself.”
On this occasion, an unusual situation is generated, since the Constitutional Court itself, with a conservative majority, will have to decide whether to allow Campo and Díez to take office without there being any decision on the two magistrates chosen by the governing body of the judges, a process that is blocked because, although the progressive sector of the Judiciary has already opted for José Manuel Bandrés, a group of eight conservative members elected by the PP refuses to give a name. At least until the plenary session on December 22 there will be no agreement in this regard.
The Constitution establishes that renewal is done by thirds, so the four elected by the Government and the CGPJ should take office at the same time, although there are disparate legal interpretations on this matter. Of the eight remaining magistrates – there are 12 in total – four are appointed by Congress and another four by the Senate.
Given the blockade exercised by the conservative sector of the CGPJ, the Executive had already stated on numerous occasions its intention to name the two candidates for the TC that corresponds to it by quota without waiting for the CGPJ to designate the other two that complete the third of four magistrates pending renewal.
In these months, the Executive has fluctuated from positions that, at first, contemplated appointing its two candidates for the TC, although the CGPJ could not do the same because then the Organic Law of the Judiciary (LOPJ) prevented it, to others in which he advocated giving the governing body of judges a reasonable time so that, once the legal capacity to do so had been recovered, it nominated his pair for the TC.
Now that Sánchez has chosen to advance without the CGPJ, the TC plenary must clear up the mystery, since it is the one who must give the pleasure to those selected. In principle, it would be a procedure to certify the suitability of the candidates, but it could raise the unconstitutionality of an appointment that would not be complete as the magistrates appointed by the CGPJ are missing.
Initially, sources from the court of guarantees saw it difficult for the two candidates for the Executive Branch to overcome the plenary session filter without the two from the CGPJ, because, they explained, the Council could not fulfill its constitutional function due to the reform of the LOPJ operated in March 2021 that prohibits the body from making discretionary appointments in the judicial leadership while it has expired, a situation in which it has been going for almost four years.
However, the same sources now emphasize that the scenario changed last July, when PSOE and Unidas Podemos promoted the approval of a second reform so that the Council would recover its power to fill vacancies in the high courts, although only for the Constitutional one.
Juan Carlos Campo and Laura Díez would replace the current president, Pedro González Trevijano and Antonio Narváez, both appointed by the Executive of Mariano Rajoy in 2013 and who finished their nine-year term last June.
Campo, born in the Seville town of Osuna on October 17, 1961, was appointed Minister of Justice by Sánchez in January 2020, once a government was formed after the last general elections, replacing Dolores Delgado. From the department he had to process the partial pardons of those convicted by the process, finally granted at the end of June 2021, and shortly after he was replaced by Pilar Llop and returned to his position in the National Court that he had never held because he was a socialist deputy for Cadiz.
Graduated in Law in 1984 from the University of Cádiz, he entered the judicial career in 1987. He became a magistrate in 1989. Since 1997 he has been a Doctor of Law from the University of Cádiz. In the government of José Luis Rodríguez Zapatero he held the position of Secretary of State for Justice and previously was a member of the CGPJ for seven years; He previously passed through the Junta de Andalucía as general director of relations with the administration of justice, appointed in 1997.
For her part, Laura Díez Bueso (53 years old) from Barcelona is a professor of Criminal Law and a jurist with extensive academic experience but by no means unrelated to politics. Since last May she has been vice-president of the Consell de Garanties Estatutàries de Catalunya, elected by Parliament. Her choice was the result of a three-party agreement between the PSC-Units, ERC and JxCat, who agreed on the names of the six members of this body that it is their responsibility to propose to the Parliament, compared to the three that are chosen at the proposal of the Government .
Between 2002 and 2004 she was already an advisor to the Generalitat for the reform of the Statute in the last government of Jordi Pujol and later she was attached to the Ombudsman (2004-2010) in the first part of Rafael Ribó’s mandate, a position that in 2009 She combined that with that of adviser to the Organization for Security and Cooperation in Europe (OSCE) and, from 2010, as an expert in various projects of the European Commission.
In 2016, he joined the United Nations crisis response unit as a specialist in human rights, an area that has focused a large part of his teaching career, developed at the University of Barcelona (UB). She received a PhD in Law from the UB in 1997, she has been a professor of Constitutional Law since 2001 and since January 2020 she is a professor of that discipline.
Díez was delegated to the rector of the UB for regulatory planning (2011-2013) and has also directed several departments of this university: Political Science, Constitutional Law and Philosophy of Law (2016-2018), the Postgraduate Diploma in Law Public (2015-2017) and the Master in Advanced Legal Studies (2014-2015).
The main research projects in which he has worked revolve around decentralized states, freedom of expression and the right to information, constitutional institutions that guarantee rights or foreigners.
In the Government of Spain, Díez was director of the Cabinet of the Secretary of State for Relations with the Courts of the Ministry of the Presidency, Relations with the Courts and Equality (2018-2020), and general director of Constitutional Affairs and Legal Coordination of the Ministry of the Presidency, Relations with the Courts and Democratic Memory (2020-2022).
The institutional deputy general secretary of the PP, Esteban González Pons, has considered that Campo and Díez “are not suitable” to be part of the TC because he considers them “two members of the Government entering to fulfill a mission in the Constitutional Court, which is to safeguard the legislation of the government itself.” For this reason, Pons believes that the European Union “is going to react” and has warned that if they are appointed “both will have to abstain” in the deliberations of the TC that concern the decisions of the Government.
Pons has said that the Government sends the Constitutionalist to Campo to be a “sheriff”, which, in his opinion, goes against the separation of powers, because, he has also said, it sends him “as an explorer to colonize”. the court, “making entryism in another power of the State”.
