When it seemed that, finally, the serious anomaly that supposes that a constitutional body has spent almost four years with an expired mandate was going to be remedied, the Popular Party did it again. The Conservatives announced on Thursday night the unilateral breakdown of negotiations for the renewal of the General Council of the Judiciary (CGPJ). All this despite the fact that both parties had taken for granted in recent days that the agreement was imminent. The excuse that Alberto Núñez Feijóo’s party has now put forward is the reform of the crime of sedition to which the Executive has committed to with ERC. This Friday, Feijóo himself blew up all the bridges with the current government by stating that “the state pacts will come with this PP and with another PSOE.”
Feijóo closes the door to any agreement with Sánchez: “The State pacts will come with another PSOE”
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The Conservatives, who left Moncloa in June 2018 after Pedro Sánchez’s motion of censure, have resisted all this time losing their power in one of the key institutions of the State. On the one hand, by retaining the majority in a body that until March 2021 continued to make appointments in the judicial leadership despite having expired its mandate. And, on the other, in the expectation that an agreement with the PSOE could harm them electorally against Vox. They have used, for this, a battery of changing and growing justifications to which this time the future and unwritten reform of the crime of sedition has been added when the pact was imminent.
It is not the first time that talks have blown up when they are about to come to fruition. It happened for the first time in November 2018, days before the term ended. A message from the then PP spokesman in the Senate, Juan Ignacio Cosidó, boasting of controlling “from behind” [con el nombramiento de Manuel Marchena] the most delicate chamber of the Supreme Court frustrated the renovation. Marchena ended up resigning and the negotiation returned to square one. In 2019 there were hardly any contacts due to the succession of electoral appointments, including the repetition of the general ones. Nor in the first half of 2020, during the worst of the pandemic. In January of that year, the PP had set as a condition to sit down to negotiate to classify again the crime of a referendum or to reform the euroorder.
The second great attempt at an agreement did not arrive until the summer of 2020, as revealed by Pablo Casado himself. There was a principle of agreement with some names, but Casado ended up backing down due to criticism of the Crown by then Vice President Pablo Iglesias after the flight of Juan Carlos I to the Emirates in the middle of a judicial investigation into his finances. “There is no possible pact with those who ask for the abdication of the king, the independence of Catalonia and the whitening of batasunos,” the PP leader said at the time. On September 2, after a meeting with Sánchez in Moncloa, the rupture was evident.
During that autumn, the PP insisted on the veto of Podemos and put on the table for the first time the demand that the 12 judicial members be chosen directly by the judges. That has been the main excuse of the conservatives since then to justify their refusal to renew the body. All this despite the fact that the current parliamentary election formula was ratified in a pact signed in 2001 with the PSOE and that they did not promote this reform during their two absolute majorities. That year they also used as an excuse the Yes of EH Bildu to the Budgets of the following year.
At the beginning of 2021, after the PP crash in the Catalan elections and criticism from the barons, Casado lifted the blockade of the institutions. Both parties agreed to renew the board of directors of RTVE, but the agreement on the CGPJ was frustrated again. On this occasion, due to the PP’s veto of the two members proposed by Podemos: the current delegate for Gender Violence, Victoria Rosell, and Judge José Ricardo de Prada, responsible for the passages of the Gürtel sentence that they considered accredited the box B of the party and that provoked the motion of censure against Mariano Rajoy.
In the following months, the Conservatives continued to increase the list of obstacles, while Casado continued to insist on changing the system for electing members. They argued, first, the elections in the Community of Madrid; and later, the pardons to the independence leaders condemned by the procés. Meanwhile, in March 2021, the law was approved that prevents the CGPJ from making appointments when it is in office. Until then, he had made 74 key appointments at the top of the main courts, including the Supreme Court.
In the fall of 2021, both parties agreed to renew the pending constitutional bodies, with the exception of the Judiciary: the Court of Auditors, the Ombudsman, the Data Protection Agency and four magistrates of the Constitutional Court. But —as it became known later— they also secretly agreed on a legal change to guarantee the next renewal of the Constitutional Court if the CGPJ continued to be blocked. This reform consisted of giving back to the governing body of the judges the competence to make the appointments of the court of guarantees —not of the rest of the courts— despite being in office.
Feijóo’s excuses
The change of leadership in the PP did not change things too much either. On April 7, Sánchez and Feijóo agreed in their first meeting to resume talks to renew the CGPJ. But just a month later, in May, the PP leader asked to wait until after the Andalusian elections. The elections passed and Feijóo added another condition. Now there would be no negotiation without a “global agreement” that included reforms for the “regeneration” of Justice.
A month later another obstacle was added: the reform on the election of the magistrates of the Constitutional Court. Despite the fact that this legal change had been agreed with the PP, Feijóo used it as an excuse to close any pact option again. Either the PSOE withdrew its initiative or they did not return to the negotiation. The reform was approved in the Cortes, but the blockade of eight members of the conservative sector of the CGPJ has so far prevented these appointments from being made. In fact, progressive members consider that the members elected at the proposal of the PP have followed a blocking strategy with respect to the renewal of the Constitution that reproduces the one followed by Genoa in relation to the renewal of the CGPJ.
Since the restoration of democracy, the three blockades of the PP in the renewal of the CGPJ – between 1995 and 1996, between 2006 and 2008 and the current one – have served for the right to decide the majority of the appointments of judges in the Supreme Court. Thanks to this slow process in which Aznar, Rajoy, Casado and now Feijóo have participated, the situation has arisen in which the Criminal Chamber —the one that ultimately examines most criminal cases and through which the cases of corruption—will go from being made up in 1995 of seven progressive judges and six conservatives to that in 2022 there will be twelve conservatives compared to four progressives.
