Spain’s left-wing government has proposed changes for electing judges to the country’s constitutional court. The changes will weaken the court’s political independence and force a change to a progressive majority.
The new norms are likely to become law by the end of the year, slipped in as amendments to other proposed changes to the penal code that would eliminate the crime of sedition and lower the legal consequences for misappropriating public funds.
“This is an institutional coup. Never in 42 years has there been a performance like this,” members of the Constitutional Court told the Spanish media site Voz Populi.
“This is legislating with a hammer. There is a clear desire for the collapse of the Judiciary because it seems that they are interested in weakening it,” they explained, adding: “Non-political institutions are bleeding, they are on their way to becoming subordinate powers to the politician.”
The appointments of four members of the twelve-member constitutional court came up for renewal in June, as the magistrates are reappointed in thirds. This block of four judges is jointly appointed by the General Council, the organ that provides administrative oversight of the judicial system, and the reigning executive of the government, each body choosing two judges. The General Council has been slow in making its appointments, much to the annoyance of President Pedro Sánchez and his government. In July, the government pushed through a law that introduced a September 13th deadline for the General Council to appoint their judges, which the conservative sector purposely defied.
The government hopes its latest proposed changes to the court system will force the General Council’s hand.
The first proposed amendment suppresses the requirement of a three-fifths majority of votes from the General Council for each appointee. It also establishes a strict and limited time frame for the council to elect their appointees. Under the proposed reform, it would have five business days to name candidates, with each voting member proposing one candidate. It would then have to convene a plenary session for the election of the candidates within three working days. In the election, each voting member of the General Council can vote for one candidate, the candidates winning by a pure simple majority instead of the currently necessary three-fifths majority.
The changes also threaten the General Council of the Judiciary (CGPJ) with consequences “of all kinds, including criminal,” for not following the new election process.
Furthermore, the reform eliminates the evaluation process for the government’s candidates, done by the CGPJ to assess the candidates’ suitability.
Alberto Núñez Feijóo, president of the main opposition party, the Partido Popular, said in a speech delivered over the weekend that Sánchez had proven himself the “most authoritarian president of Spanish democracy.”
VOX and Ciudadanos, the two smaller opposition parties, are calling for a vote of no confidence, which the Partido Popular (PP) has said it will not support as it would likely fail and only reinforce Sánchez and his government. Instead, the PP has called for snap elections.
The drama surrounding the appointments to the Constitutional Court is part of a wider political blockage of the renewal of the General Council and the Spanish court system it governs.
The General Council, the administrative arm of Spain’s judicial system, consists of 20 members, 12 judges, and 8 other legal experts. The body 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.
No such agreement has transpired in years. The General Council mandate expired in 2018, but the governing socialist party, Partido Socialist Obrero Español (PSOE), and the centre-right Partido Popular (PP) have been unable to reach a consensus on appointees. Each recriminates the other for refusing to compromise.
Luckily, Spanish law has allowed the General Council to simply keep functioning should politicians allow it to go over its mandate. But in March 2021, the socialist-led government passed a law prohibiting the General Council from appointing judges after its mandate had expired, except for the constitutional court. But the government is using that exception and the present proposed reform to force through a shift to a progressive majority on the constitutional tribunal to both appease the nationalist-independentist parties that support it and to protect its liberal agenda.
Several of this government’s recent laws—from a sweeping education law to the law that decriminalized euthanasia—are facing changes to their constitutionality.
The political manipulation of the court and the loss of functional power is also being felt in the country’s courts, many of which are now barely able to operate, as judges retire or their appointments expire and new appointments can’t be made.
At the same time, the European Union has been warning Spain for years that it needs to reform its judicial system so that judges are appointed by their peers, not politicians. Both the European Court of Human Rights and the European Commission have also warned the government that it risks falling outside of EU democratic standards given the current situation. The European Commissioner for Justice, Didier Reynders, was in Madrid the last week of September to investigate the situation and gently warned Spain that the next step would involve fines, such as those issued to Poland for its judicial reforms.
Sánchez, though, appears to remain committed to his chosen path of judicial control.
