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 session to resolve one of the conflicts that has paralyzed the General Council of the Judiciary (CGPJ). The court must decide whether or not to endorse the reform of the Organic Law of the Judiciary to prevent the governing body of judges from making appointments within the judicial career while they are in office, which is generating a collapse in the Court Supreme. The positions of the twelve magistrates that make up the plenary session are found in two blocks, a clash that will be evident today in the meeting as a reflection of an unsolvable situation within the judicial branch.
Two and a half years ago, PSOE and Unidas Podemos promoted this reform as a response to the blockade that the PP had maintained since December 2018 to not renew the CGPJ, then and now with a conservative majority. The PP, initially with Pablo Casado and later with Alberto Núñez Feijóo, has repeatedly refused to comply with the constitutional mandate of renewing the CGPJ for the last five years, alleging that before changing the twenty members that comprise it, the election system must be modified so that it is the judges and not the Parliament that elect them.
For this reason, Pedro Sánchez promoted a reform of the law so that at least while the body was in office it could not continue making appointments of magistrates, with its sights set mainly on the Supreme Court. This reform was appealed before the Constitutional Court by the PP and Vox. The body has taken more than two years to resolve it. At first, with Pedro González Trevijano as president, he did not want to face resources with clearly political overtones at a turbulent time. With the arrival of Conde-Pumpido, elections have been chained, first the regional and municipal ones and then the general ones, which has delayed the study of the matter. The president has now chosen to set it between the failed investiture of Feijóo and the next one of Sánchez. In this way, in the face of a possible new socialist government, this issue is resolved for the new legislature. There are two presentations prepared 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 fits into article 122 of the Catra Magna: “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 establishes the functions of the body and therefore these can be modified or corrected legislatively, as court sources maintain.
The other presentation, by conservative César Tolosa, defends that the reform approved in April 2021 is clearly unconstitutional because the limitation on the appointment of magistrates is affecting the functioning of the courts and therefore violates the effective judicial protection of individuals included in the article 24 of the Constitution.
The approved reform had a critical point because it also affected the renewal of the TC magistrates, established in the Constitution itself. Its non-renewal could contravene the Magna Carta. However, given this obviousness, the Executive proposed a counter-reform to resolve this initial failure and avoid a “slap on the wrist” from the TC.
Court sources assume that Balaguer’s presentation will be the one that goes ahead, although some corrections will have to be made, which will be a boost for Sánchez. Sources from the progressive sector explain that it cannot be expected that the guarantee body will be the one to resolve the CGPJ blockade. The TC, they clarify, can only study the constitutionality of the reform without assessing the repercussions it may have due to a lack of agreement between PSOE and PP, with no signs of a resolution in the short term.
