Spain’s two major parties have finally reached a provisional agreement for the renewal of the country’s judiciary system—a pending rule-of-law issue that went unresolved for six years.
Both the European Court of Human Rights and the European Commission have chided the country’s politicians for being unable to reach an agreement on renewing the General Council. The administrative arm of Spain’s judicial system, it consists of 20 members, 12 judges, and 8 other legal experts; it holds judges accountable and appoints magistrates. Under Spanish law, the body’s membership is completely renewed every five years by the parliament. The appointments require a three-fifths majority approval in both the congress of deputies and the senate: a practice that forces the two major parties to reach an agreement.
In the past, the two major parties, the Partido Popular (PP) and the Partido Socialista Obrero Español (PSOE), simply divided up the appointments and agreement was easily reached. But since prime minister Pedro Sánchez took power in 2018, no such agreement has transpired—despite his governance making the issue more important.
An unscrupulous politician who has leaned on the country’s radical left along with Basque and Catalan separatist to govern, Sánchez has been keen to shift the judiciary—particularly the constitutional court—to the left so that it will approve the policies destined for d judicial challenge, such as the amnesty law for Catalan separatists. He has already assaulted the independence of the judiciary in a wide range of other situations.
In an attempt to pressure the PP, in March 2021, the socialist-led government passed a law prohibiting the General Council from appointing judges after its mandate had expired. Under the previous law, the organ was able to simply keep functioning in the event politicians should fail in their duty to renew the body.
Indeed, the loss of functional power has put the country in an unsustainable situation. Many courts are now barely able to operate, as judges retire or their appointments expire. This included one of the country’s highest courts, the constitutional court. In another blatant display of politicization of the judiciary, the Sánchez government changed its policy (again), this time so that new appointments to the constitutional court could be made. Appointments to these courts are made jointly by the parliament and the General Council, meaning that Sánchez did indeed succeed in tipping this court more in his favor.
Under the political agreement, the General Council will first be renewed in the usual way through parliament with the PP and the PSOE selecting 10 new members each, which is expected to be completed as early as July. Then the PSOE has committed to a reform of the law to avoid future political blockades and strengthen judicial independence.
Some welcome the fact that, according to the newly reached political agreement, appointments to the General Council will be taken largely out of the hands of politicians. The two parties have agreed to reform the law so that the majority of members of the General Council are appointed by the outgoing council, not parliament, though parliament will still have some oversight of the judge’s choices. That judges are appointed by judges and not politicians is considered by the EU the gold standard of judicial independence and rule of law.
Such a reform has been recommended by the EU Commission. The agreement also stipulates that former politicians cannot be appointed to the General Council or judgeships.
In fact, the PP and PSOE reached an agreement as the result of meetings mediated by Didier Reynders, the outgoing EU judicial commissioner. The PP had called for EU mediation on the matter and its strategy has proven successful, at least initially.
However, many steps remain to both complete the reform of the law and the actual appointment of a new General Council. At any point Sánchez could either directly go back on what his party agreed to or attempt to twist the reform in his favor. At the very least, he will face headwinds from the opposition of the radical left and separatists whose support he needs to remain in power.
VOX has stated that the judiciary is still politically controlled by the two major parties.
“But how can you have the nerve to say that the PP and the PSOE are not going to control the government of the judges…the day after agreeing on the distribution between the PP and PSOE of the government of the judges?” Santiago Abascal posted on Twitter. “To the scam on their voters they now add the insult to the intelligence of the Spanish people.”
