The frenetic night, this Monday, in which the Constitutional Court decided by one vote difference (the conservative bloc has six votes and the progressive one, five) to prevent a parliamentary vote that was going to favor the renewal of the court itself, will be remembered for the arguments of “little legal rigor” used by the speaker, Enrique Arnaldo, and that supported his conservative co-religionists.
Arnaldo defended at all costs admitting the extremely precautionary measure requested by Núñez Feijóo’s party: to paralyze the legislative process, currently in the Senate, once it received the endorsement of Congress, to unblock the renewal of the constitutional Courtwhich would give a progressive majority in the guarantee court, according to the current composition of the Parliament.
However, the arguments used both in the presentation and in the course of the extraordinary plenary session by the conservative bloc, headed by the president, Pedro González-Trevijano, did not shine precisely due to the doctrinal and legal height of the very transcendental issue that was being resolved. . On the contrary, to the point that sources from the progressive bloc of the TC tell Public that “there was not legal coverage nor were there precedents for making this decision. It is a legal aberration“.
In a soccer simile, it could be said that the progressive magistrates had 90% possession of the ball against the conservatives, and they were providing weighty legal arguments to oppose the precautionary suspension for the first time in the history of democracy of a legislative process in the Spanish Parliament . “There is no legal provision that allows doing that,” warn these sources.
The five progressive magistrates will each issue a private vote in the coming days, in which, as they have learned Publicwill coincide in highlighting the seriousness of the fact that the TC did not listen to the authority of Congress before taking such a drastic measure as provisionally suspending the parliamentary process and they point out that the Senate has been punished for an appeal addressed to the Lower House.
No legal coverage
The same progressive sources of the Constitutional They point out to this newspaper that there is no legal provision that protects the precautionary measure ordered, and they rely on the report of the main lawyer of the TC, who assured it so. The report highlights that it is not among the functions of the TC as guarantor of compliance with the Constitution invade the autonomy of the Chambers enshrined in the constitutional text. Therefore, the Constitutional Court could not, based on its own Organic Lawsuspend a legislative procedure that has not yet concluded with the excuse that said procedure is violating at first sight the right to political participation of the PP deputies, argue these sources.
The order of the TC, whose operative part was brought forward on Monday night, indicates that “according to the constitutional doctrine on the exercise of the right of amendment and the relationship of homogeneity that must exist between the amendments
and the legislative initiative that is intended to be modified” it is appreciated that “the alleged violation of fundamental rights is not without prima facie [a primera vista] of credibility”. In other words, without an in-depth study of the situation, the majority of the Constitutional Court chooses to grant an unprecedented and extreme measure to the PP, which involves interference in the functioning of Parliament.
But these sources also point out that this suspension measure has been approved “without precedents” and this is an important element, because although it is true that the doctrine of the court itself requires a connection of matters between the amendments and the legislative reform, It is also true that the TC studies its own precedents when approaching a major decision. When there are no precedents -in this case, since the TC had never been asked to suspend a legislative reform in Parliament-, an in-depth study of the issue is even more necessary, because it is the first time that something like this has been addressed and it will mark the position of the Constitutional Court, say the sources.
The “arguce” of rejecting the challenges
The key moment of the extraordinary plenary session this Monday, which lasted twelve hours, was the rejection of the challenges of the magistrates Pedro Gonzalez-Trevijano and of Antonio Narvaezboth appointed by the Government of Mariano Rajoy in 2013. The six conservative votes to five progressives and those challenged also voted against their challenge.
According to sources from the progressive bloc, the procedure established by law was not followed, which requires the removal of the judge immediately after the presentation of the challenge until the incident is resolved. These sources speak of a “ruse” on the part of the conservative magistrates to resolve the challenges. Once the appeal of the PP was admitted for processing, the parliamentarians of United We Can and of the PSOE who had raised the recusal of the two conservative magistrates.
However, despite being present, the challenges have not been admitted since the majority of the TC consider that they are not entitled at this time to challenge; something that progressive sources call a “legal aberration” and violation of the right to an independent judge.
The president of the TC, Pedro González-Trevijano, and magistrate Antonio Narváez have had their mandate expired for six months. Upon being challenged, the progressive magistrates of the TC understood that there were well-founded reasons for them to leave voluntarily, because they have a direct interest in the lawsuit, since what was being resolved was to stop a reform that is going to force them to leave the TC. But they did not refrain.
Reasons for abstention
President González-Trevijano urged a vote on the recusals, knowing full well what the result would be, since neither he nor Narváez thought of inhibiting themselves.
At one point in the plenary session, from the conservative sector an observation was made regarding the debate on the recusals should go further and include the Vice President, Juan Antonio Xiol (progressive) and the conservative magistrate Santiago Martinez-Vares. Both were appointed by the CGPJ in 2013 and their mandates have also expired since last June.
But the progressives put an important nuance on the table: in the case of González-Trevijano and Narváez, they already have substitutes because the Government has designated its two candidates: the former minister Juan Carlos Field and the professor Laura Diez. However, the CGPJ has not yet appointed its two magistrates for the TC and it is expected that it will continue without doing so, for the moment, due to the permanent blockade of the conservative vowels.