The Constitutional Court (TC) is expected to endorse today in a monographic plenary session the reform promoted by the PSOE and Podemos that since March 2021 prevents the General Council of the Judiciary (CGPJ) from making appointments while it remains in office. A measure with which the Government intended to force the PP to negotiate the renewal of the Council, which exhausted its mandate almost five years ago, but which, far from achieving its objective, has placed the judicial leadership – especially the Supreme Court, with 30 % of its staff unfilled, which will force it to issue more than a thousand fewer sentences this year – in an unprecedented situation due to the successive accumulation of vacancies.
On the table, the magistrates will have two draft sentences, to which LA RAZÓN has had access: the one prepared by the progressive magistrate María Luisa Balaguer, who rejects Vox’s appeal against the reform and endorses the constitutionality of the measure before the « “anomaly” of the unusual delay in its renewal; and that of the conservative magistrate César Tolosa, who does see it as contrary to the Magna Carta that the Council has been “stripped of its essential functions”, compromising judicial independence.
While waiting for this deliberation, sources from the TC assume that the progressive majority – seven judges compared to four conservative judges – will prevail again, thus endorsing the court of guarantees chaired by Cándido Conde-Pumpido that this reduction of powers to the CGPJ was in accordance with the Constitution.
“Safeguard judicial independence”
But far from that conclusion, Judge César Tolosa concludes in his presentation that “the reform, by significantly altering the nature of the Council, and by affecting the normal functioning of the Administration of Justice and the independence of the Judicial Branch, incurs a constitutional violation of article 122” of the Magna Carta, which expressly includes among the essential functions of the CGPJ that of appointments, now curtailed.
In a draft ruling with abundant reference to European jurisprudence, the former president of the Third Chamber of the Supreme Court – who suffered first-hand the consequences of the legal reform before joining the TC in the last renewal of the court – emphasizes that the The functions assumed by the Council “are essential to preserve the independence of the Judiciary” since the nature of the institution derived from the Constitution “is inexorably linked to its function of safeguarding the independence of the Judiciary.”
“Denature” the CGPJ
Hence, it considers that Organic Law 4/2021 “cannot be understood as respectful” of the Magna Carta “given that the Council has been stripped of its essential functions, that is, those that have external projection and affect the functioning of the Administration of Justice, which produces a denaturalization and an essential alteration of the function attributed to it by the Constitution of guaranteeing the independence of the Judiciary.
According to his criteria, with these limitations imposed since March 2021 “the functions that precisely justify the existence of the Council are substantially affected: on the one hand, intervening in the election and appointment of judges, as a necessary element to guarantee the independence of the judicial bodies.” ; and on the other hand, intervene in the exercise of judicial disciplinary power, in order to prevent it from becoming “an instrument of pressure on judicial activity or political control of said activity.”
Tolosa assumes that the non-renewal of the CGPJ “is an anomaly”, but makes it clear that this fact “does not entail a lack of legitimacy” of the same to fulfill its essential functions nor does it allow “to denature the governing body of the Judiciary.”
“With such a drastic reduction of powers – he denounces – the functioning of the Administration of Justice, its independence, and ultimately, the Rule of Law itself, is inevitably affected.” Not in vain, he considers that the reform has caused an alteration in the “normal functioning” of the courts and, above all, of the Supreme Court, which “has a direct impact” on its ordinary functioning to the point of “its efficiency being seriously affected, which inevitably has repercussions on the jurisdictional function and the demands for effective judicial protection” of citizens.
Criticism of the reform
For all these reasons, the presentation emphasizes that with these regulations “the rule of law and the principle of division of powers is affected” by depriving a State power “of those essential powers attributed to the development of the function that it has constitutionally attributed.” ».
According to the speaker, “the reasons that have led” to promote this reform “in no way legitimize this reduction of powers”, to the point that he describes it as “contradictory” that it is justified as “a means to promote renewal.” The powers of the Council – he specifies – “cannot be assimilated to those carried out” by the Government and Parliament (whose functioning situation is expressly provided for by the Constitution). The CGPJ, he emphasizes, “is characterized by being at the service of the independence of the Judiciary, and not belonging to the political sphere, nor does it share the representative nature that the Cortes enjoy.”
Tolosa does not overlook in his presentation “the way in which the approval of the reform has taken place, three years after the mandate of the members expired” and “processed urgently” and “without hearing the affected sectors principles » (although it does not raise constitutional objections in this regard), despite the importance of the effects that the norm was going to have on the organization of the Administration of Justice and the recommendations of the European institutions.
The magistrate also objects that by exercising “control” over the power of appointment of CGPJ, by denying its exercise, an appearance of lack of impartiality is inevitably generated in the criteria that govern these appointments that is poorly compatible with the principles of the State. of Law, the separation of powers and judicial independence.
Balaguer’s endorsement in the face of an “exceptional regime”
The presentation of the progressive magistrate María Luisa Balaguer – who rejects the appeal that Vox raised against the reform – does support (unlike her colleague César Tolosa) that the power to make appointments was withdrawn by law from the CGPJ due to the “anomaly” of the delay in its renewal, a measure that, according to the argument, does not put at risk judicial independence, which “is predicated on each and every one of the judges as they exercise the jurisdictional function.”
«Although there is no express constitutional provision for the regulation of the CGPJ in functions –he assures–, there is no legal-constitutional objection for the legislator to provide for an exceptional regime of operation of the Council in those cases in which the Chambers have not fulfilled their constitutional duty. to appoint the new members, after the five-year term that the Constitution provides for.
The Magna Carta, he emphasizes, “only determines, in a clear and univocal manner, that the duration of the mandate of the members of the CGPJ is five years, a period in which they are in the full exercise of their powers.” “What the constitutional text does not provide, in any case, is an indeterminate or indefinite extension of said mandate,” he adds.
With this argument, the “extraordinary situation of institutional anomaly derived from the lack of due renewal on time,” Balaguer justifies the limitation of the functions of the CGPJ.
The draft ruling confirms that it is the “function of appointment and management and governance of courts and tribunals that is essentially affected” by the reform, but clarifies that these functions “are linked to the normal development of the Council within the constitutional mandate of five years”.
For the magistrate, “this configuration of the acting CGPJ in no way affects its role as guarantor of judicial independence, nor does it place the governing body of the judiciary in a position of subordination with respect to the legislative power.” In fact, she emphasizes that “the ultimate goal of the regulation of the CGPJ in office is none other than to ensure that all the ordinary powers of the Council are exercised in their fullness by those to whom they correspond within the five-year constitutional mandate.”
The option that is expected to be supported by the progressive majority of the TC recognizes the legislator “the necessary regulatory power” to carry out the functions of the CGPJ “and even to establish an exceptional regime applicable temporarily once the mandate expires.”
For all these reasons, he concludes, the regulations “cannot be considered an attack on judicial independence, nor can they be considered regressive in that area, nor can it be understood that they violate” the Constitution.
The judge also rejects that the reform was a legal fraud since it was, as Vox maintained, a “disguised bill.” “The use of a bill, not an Executive project, in order to initiate the legislative procedure cannot be described as fraud of law,” he assures, because “this would mean deactivating the legislative initiative of the parliamentary groups belonging to the government majority or who give their support to the Executive”.
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