Barely 48 hours after committing under the EU’s pallium to unblock the General Council of the Judiciary (CGPJ) and to assume the changes in the appointment system proposed by the new members, the PSOE and the PP have lowered the relevance of the proposal of the governing body of the judges. A ruling that the parties do not assume is mandatory, but rather will be used as a reference to modify the formula by which their members are elected. Or not.
The text of the agreement signed by Minister Félix Bolaños and PP Vice-Secretary Esteban González Pons states that “the CGPJ is required to approve, by a three-fifths majority, a proposal to reform the system for electing members of judicial origin, which will be forwarded to the Government and the Cortes for debate and, where appropriate, processing and approval.”
This intention is reflected in the bill presented by both parties in the form of an additional provision with a very similar wording. The key words are “for debate and, where appropriate, processing and approval”, since the parties open the door for the Cortes to make changes to the proposal that comes from the governing body of the judges.
This was confirmed publicly during the week by senior PSOE and PP leaders. The former, the Minister of the Presidency and Justice. Bolaños stressed in two consecutive interviews that the proposal that comes from the new CGPJ “will be analysed, debated and, if necessary, processed”. “There are various models in Europe”, he said. “If ours can be improved, let’s do it”, he added. “That is what we have agreed”, he concluded.
The leader of the PP, Alberto Núñez Feijóo, also made similar statements. “It makes no sense to ask the CGPJ to make a proposal and then ignore it,” he said in an interview on La Sexta on Thursday. But Feijóo added that the ruling for a new system for electing members in the future “can be accepted in whole or in part.”
“Any option to politically control the Judiciary is over,” Feijóo said at a press conference on Tuesday, shortly after the agreement was signed. 48 hours later, he opened the door to not accepting the judges’ own ruling.
The “direct participation” of judges
The change in the system of electing members has been the reason given by the PP to block the renewal of the CGPJ for more than five years. It was the excuse that Pablo Casado pulled out of his sleeve when a leaked cell phone message revealed the political control that the previous leader of the right intended to exercise over the Supreme Court.
“Controlling the Second Chamber from behind,” the then spokesperson for the PP in the Senate, Ignacio Cosidó, wrote in 2018 to justify the agreement with the PSOE a few months after the motion of censure that ousted Mariano Rajoy. The person designated to exercise that influence over the chamber in charge of judging the process was the current Supreme Court judge Manuel Marchena, who precisely should have abandoned the leadership of said chamber to assume the Presidency of the court itself.
But the agreement signed on Tuesday in Brussels and under the eyes of the vice president of the Commission, Vera Jourova, shows that the conservatives have ended up giving up on changing the system of election of the judicial members of the CGPJ so that they are elected “directly” by the judges. The condition was essential to address the renewal of the organ until it was no longer so.
This demand of the PP was supported all these years by judicial associations of conservative or moderate tendency, which became a battering ram against the coalition government on this and other issues.
The members of the new CGPJ will have to make a proposal so that in the future the judges have a “direct participation” in the election of their peers on the council. A formula that does not necessarily imply that it is only the judges who participate in the election, as assumed in the PP.
Although in public the opposition spokespersons defend that the wording implies that “the judges elect the judges”, in private they describe the agreement as a “tie”, a resignation and a loss of control of what may happen with the CGPJ renovated.
The reality is that after five and a half years using the change of model as an alibi, the pact signed this week has reproduced the distribution of seats between PSOE and PP, which have proposed ten members each. The next CGPJ will have, once again, 12 judges or magistrates in active service and another eight “jurists of recognized prestige” appointed with the endorsement of three-fifths of Parliament. Afterwards, these members will elect a president, who is also usually the result of a political agreement. At the moment, his name has not been revealed.
In the case of members of the judicial profession, they are chosen from a list determined by the judges themselves, which is accessed with the endorsement of 25 colleagues or an association. From there, the parties choose taking into account ideological affinity and associative ties. In the new distribution, the majority are linked either to the conservative Professional Association of the Magistracy, or to the progressive Judges for Democracy. For the remaining eight positions, profiles with experience in different areas of the legal world with some political character are reserved.
Some candidates have disappeared from the new cast who, in 2018, when the first attempt at an agreement was frustrated, were criticized for their politicization. For example, the PP proposed two former parliamentarians who served as spokespersons for its positions on judicial matters in Congress and Senate, José Miguel Castillo and Manuel Guillermo Altava, respectively. Neither of them are on the current list. On the other hand, the PSOE has maintained Bernardo Fernández, who was vice president in Asturias.
The pact closed this week has received criticism from the second judicial association in number of members, the Francisco de Vitoria, which defines itself as independent and will not have any representative in the new CGPJ. His spokesman, Judge Sergio Oliva, questioned whether an anomaly had been put to an end “in the worst way, continuing with the politicization of the governing body of the judges.” It is a question similar to that made by the fourth association in number of members, Independent Judicial Forum (FJI); and that magistrates have also expressed in their private capacity on their social networks.
The conservative APM, which has been proposing a direct election model for years, through open lists, with a national constituency and without restrictions of any kind, has shown its satisfaction with the agreement reached by the parties.
“It is positive because of the renewal and the commitment to reform the law,” said its president, magistrate María Jesús del Barco. There is no certainty that the reform of the election system will be carried out, but for the moment, the APM has already placed five of its associates in the body that decides which judges access the top ranks of the courts. Another three of the new members were endorsed by the progressive Juezas y Jueces para la Democracia, which has also supported the agreement.
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