The challenge of the conservative members leads the CGPJ to breach the law on the renewal of the TC

The unfortunate spectacle surrounding the renewal of the General Council of the Judiciary (CGPJ) and the Constitutional Court (TC) promises not to end in the coming weeks. At least, that’s how it seems after the plenary session this Thursday in the governing body of the judges in which the orderliness of the majority of the conservative sector has been made clear [10 vocales] not only to the Government but also to the Legislative Power.

Eight of those members –Ángeles Carmona, José Antonio Ballestero, Carmen Llombart, Nuria Díaz, Juan Manuel Fernández, José María Macías, Gerardo Martínez and Juan Martínez– have achieved their purpose: to initiate the negotiation of the name of the two candidates for the TC but without deadlines, at your own pace.

But the deadlines are set by law. Specifically, article 599 of the Organic Law of the Judiciary (LOPJ) that establishes the term of three months from the expiration of the mandate of the two magistrates appointed by the government of judges as the limit for their renewal. This article was modified, along with 570, last July in the reform of the LOPJ that Congress approved to unblock the renewal of the Constitutional Court.

This maximum term expires on September 13, since the mandates of the magistrates Juan Antonio XiolVice President of the Constitutional Court, and of Santiago Martinez Vares, came to an end on June 12, after nine years in the court of guarantees. Both were elected by the General Council of the Judiciary in 2013.

Sources from the CGPJ indicate to this medium that there are no signs that an agreement on the two candidates may take place before that date. In this Thursday’s plenary session it was decided that a new plenary session will not be convened until consensus is reached and, in view of the tension between the progressive and conservative sectors of the Council, these sources do not predict an imminent agreement.

Failure to comply with the provisions of the law would produce an unusual and unprecedented situation. The renewals by thirds of the twelve magistrates of the Constitutional Court are not usually easy and in fact they usually reverse the balance of forces when it is up to the Government to appoint their candidates.

The Executive must appoint two magistrates every nine years; just like the CGPJ. The Congress and the Senate must appoint four magistrates each of the chambers in that period. This is stipulated by the Constitution, which indicates that the renewal must be done by thirds, that is, every four magistrates.

A precedent in 2004

The renewal of the third corresponding to the CGPJ and the Government must occur at the same time. And here lies the stumbling block. Until the government of the judges does not designate its candidates, the Executive will not be able to name its own, although it can make them known.

That happened in 2004 when it was time to renew the third of the Government and the CGPJ. At that time, the deadline was delayed while waiting for the Government of José Luis Rodríguez Zapatero to take office after the general elections, but the CGPJ proceeded to elect its two candidates, one progressive and one conservative, as is the tradition. However, the appointment did not take place until the Executive appointed his own, achieving a progressive majority in the court of guarantees.

That majority vanished when the Rajoy government appointed its two magistrates, in 2013, and the CGPJ did the same; conservative majority that continues to this day in the Constitutional Court and that will be reversed in the next renewal.

Now the Government of Pedro Sánchez has to pronounce on whether to maintain its determination to appoint its two magistrates before the 13th, as indicated by law, or only make their names known, or wait for the full CGPJ to vote for their candidates, for which there is no date, in a clear violation of the LOPJ.


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