Keys to the unprecedented institutional clash in Spain between Congress and the Constitutional Court

Spain is experiencing an unprecedented institutional situation as a result of the blockade of the Judiciary and the attempt by the Executive to carry out various reforms in this area.

The Executive chaired by Pedro Sanchez presented a reform to change the system of election of the magistrates that make up the Constitutional Court, which was approved this Thursday by the Congress of Deputies, waiting for it to be approved next week also in the Senate.

For its part, the Popular Party (PP), the main opposition party, filed an appeal before the Constitutional Court to paralyzed in a precautionary manner the vote in Congress that would give the green light to his own reform.

The high court postponed its decision until next Monday. Although the vote in Congress has already been held, if he agreed to the request of the PP it would be the first time in history of Spanish democracy that a judicial decision suspends a procedure in Parliament.

Extraordinary and urgent plenary session

This Thursday morning, the plenary session of the Constitutional Court met in an extraordinary and urgent manner to analyze the appeal for amparo presented by the PP, after that same night, the president of the organization decided to urgently call the plenary session to analyze whether it was admitted to be processed and the very precautionary measures were decreed.

The day was marathon in the TC. The six conservative magistrates, of the 11 that make up the body, met in the president’s office before the plenary session and had decided to admit the appeal and the precautionary measures, according to El Confidencial.

In parallel, the five progressive magistrates argued that they needed more time to analyze the issue, after receiving three new letters, two from the Socialist Party and Unidas Podemos and one from the far-right Vox party.

Finally, the decision was postponed to Monday, since without the support of the progressives, a sufficient quorum of eight magistrates was not reached to make a decision.

What does the reform proposed by the Government consist of?

The reform proposed by the partners of the government coalition, the Socialist Party and Unidas Podemos, and approved for the moment in Congress, modifies several aspects of the operation of the Judiciary.

The fundamental points introduced by the reform are:

• The introduction of a deadline so that the members of the General Council of the Judiciary (CGPJ), the governing body of the judges, name the candidates for the renewal of the Constitutional Court, thus complying with the terms stipulated by the Constitution.
• Criminally responsible to the members of the CGPJ who do not meet these deadlines.
• Change the voting model for that election going from a three-fifths majority to the election of the two most voted candidates.
• Eliminate the requirement that the Constitutional Court itself give the approval to the new candidates elected to integrate it, two at the proposal of the Executive and two at the proposal of the CGPJ.

What is the situation that has led to here?

Four of the 12 members that make up the Constitutional Court were to have been renewed in June, something that has not yet happened. Two must be chosen by the Executive, which has made its candidates public for weeks, while the other two are chosen by the CGPJ.

The conservative members of the CGPJ, proposed by the Popular Party, have so far refused to carry out the renewal, claiming, among other excuses, that they still had no candidates to propose. This situation paralyzes the four appointmentssince they all have to be performed simultaneously.

It so happens that the CGPJ himself is in the same situation, with his mandate expired four years ago. In this case, the reason is the Popular Party’s refusal to negotiate the candidates with the Socialist Party, candidates that must have the support of three-fifths of Parliament.

The proposal of the Socialist Party and Unidas Podemos is framed within this scenario, which tries to carry out a reform that unlocks the renewal of the Constitutional Court, making it impossible to block it due to the position of a part of the members of the CGPJ.

New rush in the conservative bloc of judges

While the progressive block of the CGPJ presented a list of its candidates for the TC months ago, which has finally been reduced to a name, Supreme Court magistrate Jose Manuel Bandres, the conservative sector had refused to present its proposal.

However, just after the government’s planned reform became known, last Friday the conservative members changed their position and they intended to immediately name the candidates, to avoid the reform of the Executive.

To do this, these members requested an extraordinary plenary session to make the appointments that the president of the CGPJ, Rafael Mozo, denied, arguing that they had not presented the list with the candidates along with their curriculum.

On Wednesday of this week – the same day that the PP presented its appeal – the conservative members reiterated their request, this time attaching two proposals: the magistrates Cesar Tolosa and Pablo Lucas. In this way, the Plenary has been convened for Tuesday of next week.

The PP resource arrives

Also on Wednesday, the Popular Party filed an appeal for amparo that prompted the immediate convening of the urgent plenary session of the CGPJ. The resource is directed against the Justice Commission of Congress for having admitted the reforms of the Judiciary for processing.

These reforms have been integrated, as a amendmentsin the law by which the crime of sedition is going to be reformed, and the PP argues that organic laws cannot be modified through amendments to a bill that legislates on an issue that is not related.

It is a way of operating that has already been criticized previously from judicial bodies, but that has been used very frequently in Spanish politics by both the Socialist Party and the Popular Party, for example, through the accompanying law of the General State Budgets.

If the Constitutional side agrees with the PP and admits to decreeing precautionary measures, it would suspend the parliamentary processing of the amendments and the Senate would not be able to proceed to a vote next week, when it is scheduled. There is no precedent in the country for a situation of this type.

Unidas Podemos challenges two magistrates of the TC

For its part, Unidas Podemos asked this Thursday to challenge two Supreme Court magistrates who must decide on the Popular Party’s appeal: the organization’s own president, Pedro Gonzalez-Trevijano, and Antonio Narvaez, both of conservative affiliation and two of the magistrates that must be renewed.

In the letter, signed by the president of the United Podemos confederal group in Congress, Jaume Asens, the proximity of Gonzalez-Trevijano and Narvaez to the Popular Party and that both find their mandate expired. In addition, they maintain that they have a conflict of interest because, if the reform is approved, they would be replaced by the new magistrates appointed by the Government.

Asens stated that this is an “unprecedented” situation and that it is “the most serious since the 23F coup”in 1981, when a group of civil guards kidnapped all the deputies in Congress.

CGPJ meeting on Tuesday

For its part, the General Council of the Judiciary has decided to convene a meeting to vote on the proposals of the conservative and progressive blocs for next Tuesday.

If there is an agreement, it will be carried out before the reform promoted by the Government enters into force, since before it has to go through the process in the Senate and it would not be definitively approved until the end of the week.

If there is no agreement and the negotiations within the CGPJ are delayed, the appointment of the new members of the Constitutional Court would be made under new rules.

However, a day before, on Monday, the Constitutional Court will make its decision on the admission of the appeal of the PP and the very precautionary measures that it requests, which could paralyze the process of the reform, in that case, already in the Senate.

“Unheard”

The Popular Party’s position has been defended by its parliamentary spokesperson, Cuca Gamarra, who has denied that its appeal violate parliamentary sovereignty and has urged respect for the decision made by the Constitutional Court. His position has only been supported by the extreme right of Vox.

However, the unanimous reaction of the rest of the political forces with parliamentary representation has been to describe what is being experienced as “unheard of”. Even the conservative Ciudadanos party, normally aligned with popular theses and which has been very hard on judicial reform, has said that stopping the process would be something “unusual”, in the words of its spokesman Edmundo Bal.

Patxi Lopez, spokesman for the socialist group in Congress, has said in the corridors of the Lower House that “the drift of the right and of some conservative judges is frankly worrying, but this latest maneuver is a qualitative leap that what it comes to say is he radically undemocratic character what’s going on.”

The First Vice President and Minister of Economy, Nadia Calvino, has affirmed that “It cannot be that a court with an expired mandate rules over popular sovereignty”something similar to what was expressed by the spokesman for Mas Pais, Inigo Errejon: “I would never have imagined that this Congress, elected by popular vote, would be pending whether it can hold a plenary session because an organization with expired majorities intends to prohibit it to avoid its own renewal”, he said.

For the government spokesperson, Isabel Rodriguez, it is about “an unprecedented institutional outrage”while for the Minister of Finance, Maria Jesus Montero, it is of “most seriousness” that the Constitutional Court “is trying to meddle in the Legislative Power.”

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