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The Constitution has already established that the appointment of judicial leadership is at the “legislative discretion” of the majority.

18 years and a few days ago, the socialist government of José Luis Rodríguez Zapatero introduced in Congress a major reform of the organic law of the judiciary. On that day, the majority arithmetic was changed so that the General Council of the Judiciary could appoint judicial leadership in the Supreme Court and territorial courts, moving from a simple majority (one-half plus one) to a qualified majority (three-fifths). Appointments. A reform brought by the People’s Party to the Constitutional Court and which won unanimous approval in the plenary session: “The majority required to continue the appointments is at the discretion of the organic legislator, without choosing one or the other. The majority is considered against the constitution”, the constitutionalist said then.

The majorities required for the CGPJ to appoint two magistrates to the Constitutional Court became relevant again this week. As exclusively reported, the government proposed a legal reform to allow the governing body of judges to choose two candidates for the Constitutional Court with a simple majority. So far, that update, key to achieving a progressive majority on the bail court, has been blocked by a group of eight Conservative members who have so far refused to vote on the appointment, months past the legal limit.

Resources for this and other government legislative initiatives have been announced by the Partido Popular and Vox in recent hours. But this is not the first time the PP has questioned the majority system for electing magistrates in the CGPJ. Already in 2005, he brought before the Court of Guarantee the reform approved a year earlier, questioning the new system that forced the CGPJ to elect senior officials with the approval of three-fifths of the plenary session. That day, PP MP Ignacio Astarloa said, a law was drafted that has “very serious” effects for democracy, which lived through the “black day” rule that was “dead”.

The PP’s appeal against the three-fifths majority to elect high-ranking officials, which it is defending today with new legal action, failed in the Constitutional Court. The appeal, which condemned various formal irregularities, but also, for example, because it introduced this new arithmetic of appointments, he considered at the time that “the minority blocks the decisions on the appointments of the CGPJ, which means that the distribution of appointments of judges responds to the balances. or political quotas”.

All his arguments were rejected by the decision of the Constitutional Court in January 2013 by a plenary session without cracks or separate votes, even by magistrate Andres Olero, a former deputy of the party. The magistrates, after dismissing all formal objections to the complaint, left in writing that the law does not require any kind of majority in the appointment of the CGPJ, as long as they respect the principles of “merit and ability” in selecting candidates. , in this case as the chairman of the Supreme Court or the High Court of Justice.

Regarding the three-fifths majority, which the PP criticized then and still defends today, the Constitutional Court stated that it would not adversely affect the protection of the independence of appointed judges and magistrates. And so long as these appointments respected the merit and ability of the applicants and the right to equal election, the three-fifths majority system was not unconstitutional. In fact, the Constitution recognized, Magna Carta did not interfere.

“No limit imposed on the organic legislature can be deduced from the text of the Constitution when the General Council of the Judiciary determines the adoption of decisions regarding the granting of discretionary positions, and this statement applies perfectly to the system. of the majority, which is required within the framework of the plenary session to continue the supply of those seats”, said the TC.

Magistrates noted that a new article promoted by the Sapatero government asserted that the CGPJ must ensure that the principles of merit and ability are upheld. “These principles formally guaranteed, in accordance with what we mentioned above, the majority required to continue the appointments at the discretion of the organic legislator, without one or the other majority unconstitutional option”, – the court. said.. He also welcomed the fact that a larger majority was sought than before, which “strengthens the legitimacy of the appointments”, it said at the time.

Therefore, almost ten years ago, the constitutionalist already supported the change of the majority necessary for the Council to appoint magistrates in a discretionary manner, although part of its arguments were dictated around the appointments of the highest judicial officials who enter the judicial power. to which the Constitutional Court does not belong. For example, the internal process of electing the president requires an absolute majority in the first ballot and a simple majority in the second. The constitution, in turn, stipulates that they must be “lawyers of recognized competence” with more than 15 years of practice.

Accordingly, the Constitutional Court did not see any problem with the legislature changing the majority system necessary for the CGPJ to make discretionary appointments to judicial leadership, moving from a simple majority to a qualified majority. CGPJ itself The report was published He considered the reform unconstitutional. The CGPJ, which included two heroes of the current situation at the time: Enrique López, adviser to Isabel Díaz Ayuso, who voted, and Juan Carlos Campo, former Minister of Justice and one of the government’s candidates to enter the constitutional elections. He formed a court personal voice.

When the PP denounced the “blockade” in the CGPJ.

The mandate of the current CGPJ has expired in four years. The members had to leave the Marqués de la Ensenada building in December 2018, but since then and until now the Popular Party has blocked its renovation, a situation that Pablo Casado inaugurated when he was the leader of the formation and which Alberto Núñez decided to prolong. Feiyo. The situation of the blockade, which eight of the members appointed by the proposal of the PP in the governing body of judges, prolongs the extension of the constitutional two members. A blocking minority.

In 2005, when Mariano Rajoy’s then-leader party challenged a previous reform on appointments, it was the PP that complained about the blockades. This is evidenced by this proposal, which, among other things, sets out the specific argument of the People’s Party to criticize the three-fifths majority and call for a return to the simple, because it introduced a “blocking minority in decisions on parliamentary appointments. CGPJ, which means that the distribution of judicial appointments responds to balances or political quotas.”

A lament shared in part by the Constitutional Court, however, rejects the same dire consequences as those proposed by the PP. For example, he acknowledged that greater consensus requirements lead to “minority gridlock,” which is “undesirable” because “it can lead to stagnation in decision-making.” But, in any case, it was not enough by itself “to consider it unconstitutional to introduce a qualified majority into the decision-making procedure of the General Council of the Court.”

Nor was there any danger of fostering clientelism between the judges and the political authorities if a mere minority were left out. “This implies the tortious use of the norm by the members of the Council, and we have already said in some cases that the possibility of only the tortious use of the norms will not be a sufficient reason to declare them unconstitutional,” the constitutional document states. almost ten years ago. According to him, patronage “exists or not, regardless of the majority required in the body to make certain decisions or to make certain appointments.”

Source: El Diario





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