2023-12-04 03:04:02
This December 4, the CGPJ celebrates five years in office. Actually, this interim situation is not good for its normal functioning. The Constitution wanted to establish a true division of powers by establishing in article 117.1 that Justice emanates from the people and is administered in the name of the King by judges and magistrates who are members of the Judicial Power, independent, immovable, responsible and subject only to the rule of law. .
During these five years, all the proposals for legislative reforms regarding the Judiciary that have been promoted by the Government have been aimed at attacking judicial independence, causing a dangerous imbalance between the powers of the State and a worrying interference by the Government in Justice. The CGPJ is an essential body in the functioning of the “Democratic State of Law”, so the reinforcement of its institutional character necessarily results in the better fulfillment of that mission that the Constitution attributes to it.
During these five years, the governing body of the Judiciary has been the object of various attacks by those who do not believe in its function of guaranteeing the independence of judges and magistrates.
The first of them was the limitation of its powers in matters of appointments that has prevented the CGPJ from guaranteeing the normal functioning of Justice. We must not forget that the judicial leadership has 87 unfilled positions due to the reform carried out by the government 30 months ago, in March 2021. Today, 30% of the Supreme Court positions are vacant, causing a very worrying situation. This reform of the LOPJ, although it has been declared constitutional, sought without any doubt to break the governing body of judges by starvation.
The second assault against the Judiciary in these five years, in this case frustrated, was the legislative reform project to reduce the majority necessary for the election of Council members who are of judicial extraction. At the time, the European Commission was concerned about the reform and asked for it to be stopped, which led the government to back down.
Triminister Bolaños has stated that this reform is not in his forecasts, but evidently denying it today is no guarantee that he will not change his mind tomorrow. There is always the threat that in the secret pacts between the PSOE and its investiture partners it has been agreed to restart this reform to achieve full occupation of this constitutional body.
The third attack has occurred recently and is the “lawfare” or acceptance of the thesis of the existence in Spain of a prevaricating justice system, contained in the PSOE-Junts agreement and recognized by Minister Óscar Puente. This assault, unlike the previous ones that focused on the governing body, is directed directly at the judges and magistrates, which has provoked the immediate reaction of the associations of judges and prosecutors, governing bodies of courts and tribunals, as well as of the vast majority of Justice professionals.
These five years of interim CGPJ must make us reach the conclusion that it is more necessary than ever to ensure that Justice is out of the political debate and that it is a democratic obligation to settle the perception of its politicization, modifying the system of designation of the members of the CGPJ and return it to their election for the judicial career.
That is the recommendation of the GRECO report (group of States against corruption dependent on the Council of Europe) in which Spain is warned of the lack of judicial independence if the system of election of members is not modified, going so far as to denounce the legislative framework and its effects on the real and perceived independence of this body.
Today, what is at stake is the independence of the judicial power, and therefore it is necessary to return to the original spirit of article 122.3 of the Constitution, so that the twelve members of judicial origin are elected directly by the judges and magistrates, as was already made clear in the ruling of the Constitutional Court 108/1986, which affirms the existence of a certain risk of frustrating the independence of said body if the appointment of members serves only the division of political forces.
To avoid repeating the situation of a CGPJ in office, the formula is simple: independence of Justice, separation of powers and institutional strengthening. Quite the opposite of what was pursued in the pacts signed for the investiture of the current government, which have the Judiciary and its governing body as the main protagonist.
Fernando de Rosa is a deputy and former vice president of the General Council of the Judiciary (CGPJ)
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