From independence, freedom and truth

Politics

Spain’s Judiciary intervened

Fernando del Pino Calvo Sotelo

July 2, 2024

The renewal of the CGPJ, the highest governing Council of the Judiciary in Spain, has brought to the forefront the great shortcoming of the Spanish Constitutional regime of 1978, that is, the lack of separation of powers. That a Council whose function is to “guarantee the independence of the judges” be elected by the same people who most threaten their independence is strange, and confirms that Spain is a dysfunctional political system where power is dangerously concentrated in the governing party and, in particular, in a single person, the prime minister, who heads an executive-legislative-judicial body.

The original sin, of course, comes from our Constitution, “a permanent improvisation”, as one of its seven “fathers” confessed to me years ago, surprised by its sudden process of canonization. Indeed, the Constitution established that the CGPJ should be made up of 20 members, 12 of whom should be judges and magistrates and the remaining 8 lawyers and jurists. The text was explicit in how these 8 were to be elected (in equal parts by the Congress and the Senate with 3/5 majorities), but not in how to elect the first 12, limiting itself to referring to an unknown future organic law and thus leaving Pandora’s box open.

Far from being an exceptional lapse on the part of the Constitutional drafters, this is yet another example of the style with which they avoided those pitfalls on which there were different visions that were hard to reconcile. Thus, on the altar of the god of political consensus (yet another imposture, as the passage of time has shown), the historic opportunity to create a first-rate Constitution that would confront the problems instead of postponing them through ambiguity, contradiction or procrastination (implied in the fact of delegating the solution to a subsequent organic law) was sacrificed. Naturally, each political party hoped to approve it to its liking by means of a simple absolute majority, that is, without the cumbersomeness of a constitutional reinforced majority.

An unconstitutional quota system

From 1978 to 1985 it was understood that the spirit of the Constitution and the safeguarding of the independence of the Judiciary demanded that the judges themselves should elect the 12 members of the CGPJ, and this was done until 1985, when the Spanish Socialist Party, which at that time enjoyed an overwhelming majority -never repeated- of 202 seats in Congress (out of 350), decided to pass an organic law so that they would be elected in the same way as the other 8, that is, by the Congress and Senate that they themselves controlled at that time.

The preamble of the law was very eloquent, since it contrasted “the liberal regime of separation of powers” with the current “Social and Democratic State of Law”, which it described, with empty and mellifluous verbiage, as a philanthropic and angelic system in which the separation of powers would be superfluous[1].  

The law was appealed before the Constitutional Court, which rejected the appeal, paradoxically admitting that “there was little doubt” that the purpose of the law “was more easily achieved by attributing to the judges and magistrates themselves the power to elect twelve of the members of the CGPJ”. But the most interesting thing is that the ruling itself warned against the possibility of distributing the positions among the different parties in proportion to their parliamentary strength, as it distorted the constitutional purpose of encouraging the independence of the members of the CGPJ. Prophetically, the ruling recognized that “the logic of the State of Parties leads to actions of this kind”, so it is worth asking why the Constitutional Court allowed a practice that it knew beforehand would lead to abuse.

Indeed, the mutual veto implicit in the 3/5 majority was intended to ensure that none of the members of the CGPJ had an excessively partisan profile, since they would have been vetoed. The quota system, on the contrary, achieved the opposite: each party chose its own candidates, practically guaranteeing that all members of the CGPJ would have an apparent or real political affinity, which ethically and aesthetically raised serious doubts about their impartiality. Although a perverse incentive system does not necessarily determine the behavior of the individual, it tends to do so in the absence of a degree of virtue that is statistically rare, and the parties have made sure to make it even more improbable by appointing jurists of lesser professional level or greater sectarianism. Thus, the “jurist of recognized prestige” has been substituted by the delegate of recognized obedience.

In short, the distribution of quotas of the CGPJ is doubly unconstitutional, since it not only encourages the political dependence of its members, but it is decided in secret meetings between parties and not in the heart of Parliament. This violation of the Constitution is not something that worries at all the two major parties, experts in violating it with total impunity.

Neither the PP nor the PSOE want an independent judiciary

The curtailment of the independence of the Judiciary has not been the exclusive responsibility of the Socialist Party (PSOE), but also of the Popular Party (PP). It is worth remembering that neither with PM Aznar’s absolute majority (2000-2004) nor with PM Rajoy’s (2012-2016) did the PP return to the judges the power to elect the members of their highest governing body. Rajoy’s case is doubly disgraceful, since, having promised it in his electoral program of 2011 (“we will promote the reform of the system of election of the members of the CGPJ so that, in accordance with the Constitution, 12 of its 20 members are elected from among and by judges and magistrates of all categories”[2]) he failed to do so with the same pathological dishonesty with which he would break so many promises made to his deceived constituents, from taxes to abortion.  

What are the reasons why neither the PP nor the PSOE want a CGPJ elected by the judges themselves? The first has to do with the will to power of both parties, which share the same ambition to control all institutions and the same fear that the judges of the Supreme Court (appointed by the CGPJ) legitimized eventually to judge them for their traditional corruption are not “friends”.

The second reason is ideological and affects only the PSOE, which has always been suspicious of a guild that tends to be conservative, not in vain the “progressive” association of judges only represents 8% of them.

Nor are the judges’ associations innocent

Indeed, according to the latest official data, 42% of judges are not members of any association, 26% are affiliated to the Professional Association of the Magistracy, 18% to the Francisco de Vitoria Judicial Association, 8% to Judges for Democracy and 6% to the Independent Judicial Forum[3]. However, the CGPJ agreed by PP and PSOE does not reflect this reality: 42% (and not the 26% that should correspond) belong to the Professional Association of the Magistracy and 25% (and not the 8% that should correspond) are affiliated to Judges for Democracy. Therefore, two associations are clearly overrepresented while the other two associations, which account for 24% of the judiciary, are not represented at all.  

These data indicate that there is an excessively intimate relationship between the PP and the Professional Association of the Magistracy and between the PSOE and Judges for Democracy, while the other two associations appear to be politically more independent and are punished for that.

As one of them says, there is a “clearly politicized profile of the associations, concerned exclusively with controlling the CGPJ and the discretionary appointments within its competence, assuming on many occasions more or less directly the role of transmission belt of the interests of the political parties that they consider to be close to them”[4].  

From all this it can be deduced that it is not only the political parties that are responsible for the lack of independence of the Judiciary, but also a minority but significant percentage of judges who may use the most politicized associations as a means of professional and personal promotion. The independence of the judiciary is a matter of two.

The deadlock and its outcome

In 2018, PP and PSOE reached an agreement to renew the CGPJ with 11 members appointed by the PSOE and 9 by the PP, but the agreement was suspended sine die when a scandalous message from the PP spokesman in the Senate was leaked in which he boasted that they were going to control the Second Chamber of the Supreme Court “from behind”. Do not forget that the most relevant power of the CGPJ is the appointment of judges to the Supreme Court, the highest court in all matters, except in constitutional ones.

In successive years, the blockade continued to be justified by the risk of autocratic involution, since, despite the gradual weakening of the subversive Leninist ultra-left party Podemos, Sánchez was showing an equally subversive character, with his ideological radicalism, his psychopathic traits and his clear desire for the supreme law to be the will of a single person, himself, without any legal, moral or political limit whatsoever.

The experience of an openly politicized and discredited Constitutional Court, in which a left-wing majority led by a de facto political commissar applies the roller and constantly borders on prevarication, predicted what would happen should Sánchez also control the Supreme Court. By the way, the absolute discredit of the Constitutional Court, which given that we have the Congress is a redundant organization, confirms that the Constitution could well have dispensed with its figure. In fact, it is hard to find examples of political independence in its 46 years of its rather useless life.

Having said all this, the paralysis of the appointment of judges, the untenable constitutional and aesthetic anomaly of the lack of renewal of the CGPJ and the EU insistence were pressure points that made a dent in the non-opposition party PP and, to a lesser extent, in the maximalist pretensions of would-be dictator Sánchez, which ended up leading to an agreement.

How to judge such agreement? On the one hand, thanks to the even composition and the requirement of qualified majorities, Sánchez will not be able to control the Supreme Court with the same ease with which he has controlled the Constitutional Court. It remains to be seen who will be chairman, who has a casting vote. On the other hand, it will be much more difficult for the non-opposition Popular Party to criticize the autocratic drift, the dismantling of the Rule of Law and the systematic institutional destruction that this Socialist government is carrying out. Likewise, it has once again shown its cowardice by giving the impression of yielding to Sánchez’s blackmail, who threatened them with a coup in case they do not reach an agreement before June 30. There is no doubt that Sanchez has perfectly grasped the soft character of the non-leader of the non-opposition, whom he despises so much that he did not even deign to personally answer him in Parliament in his investiture attempt, sending instead a rank and file MP, something unheard of in Western democracies.

Finally, the image of a member of the European Commission sponsoring the signing of the agreement has been a new blow to the prestige of Spain, which appears as a banana republic that needs foreign mediators to solve domestic issues.

There will be no independent judiciary

And what about the independence of the Judiciary? Dear reader: I sincerely believe that everything agreed in this regard is a charade, as both parties knew when they signed it. Within six months, when nobody will remember what has just happened, it is to be expected that the CGPJ will communicate that it has not reached the required majority to propose any change in legislation, since neither the two big parties want to stop appointing judges nor the two associations closer to them want them to stop appointing them, since they would see their power diminished. Nobody seems willing to change the status quo.

Once the six month period stated in the agreement has expired, the non-opposition PP could very well propose a law in Congress that would give back to the judges the power to appoint the members of their highest governing body. I very much doubt it will do so, just as it will not do so when it returns to power, if such a day comes.

The shameful politicization of the Judiciary is yet another symptom of a deeper systemic disease. The Constitutional regime of 1978, abused and parasitized by the political parties to inconceivable extremes, is beyond the point of no return. It is dead, but we continue pretending that it is not so.

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