The vice president of the Constitutional Court alleges that paralyzing the parliamentary process puts "risk" the "balance of powers"

In his letter, which was released this Friday, the arguments for which on December 19 he voted against urgently paralyzing the parliamentary process of the two amendments seeking to modify the election system for the candidates for the court appointed by the General Council of the Judiciary (CGPJ), as requested by the PP in the appeal it filed before the court.

Although last Wednesday the individual votes of the rest of the magistrates of the progressive sector of the court and the order that includes the arguments of the Plenary were made public, Xiol’s writing has not come to light until this Friday. The vice-president of the court assures that the decision of the majority of the Plenary –6 votes to 5– to suspend the processing of said amendments implies an application of the Law that is objectively not “sustainable”.

In his opinion, the balance of powers was put “at risk” by adopting the suspension measure without listening to the rest of the interested parties: Congress, the Senate, and the parliamentary groups of Unidas Podemos and PSOE. As he has defended, the court should have listened to them. “It is an unprecedented decision in the history of the Spanish constitutional jurisdiction that I cannot appreciate that it has been a possibility supported by the legal community,” says Xiol.

For the magistrate, the suspension of this parliamentary procedure “causes a serious disturbance to a constitutionally protected interest” and, in addition, “affects the fundamental rights of third parties.”

He believes that the TC should have been more prudent

Xiol considers that “the elements of prudence in favor of the court’s self-restraint” should have “been exacerbated due to the particularities of the case.” In his opinion, “any appearance of instrumentalization and intervention of the court in legitimate parliamentary discrepancies between political groups” should have been avoided, even more so when it came to some amendments that affected the organic law that regulates the operation of the Constitutional Court itself. .

For the vice president of the Constitutional Court, the court of guarantees should have “distanced” from the “urgency” in decision-making because he believes that such haste does not contribute to “a calm debate of deep political-institutional depth.”

In its 30 pages, Xiol assures that even if the amendments in question had a content contrary to the Constitution, “the court could not exercise through the amparo a constitutionality control over its material content.” And he specifies that “the appeal for amparo is not, therefore, the ideal channel to examine whether or not the accepted amendments violate” the Magna Carta.

In his opinion, the conclusion reached by the majority of the Constitutional Court does not help to eliminate the idea that with the PP’s appeal for amparo “it is intended to exercise a control of constitutionality that exceeds the nature of this appeal by exercising through this channel a prior control of constitutionality that is not provided for in the Constitution or in the Organic Law of the Constitutional Court”.

Insists that the PP did not exhaust the parliamentary route

On the sidelines, Xiol stresses that the PP’s appeal does not meet one of the admissibility requirements: that the parliamentary route has been exhausted before.

The vice president of the TC considers that the ‘popular’ deputies should have waited for the president of the Congressional Justice Commission to rule on the amparo claim they presented and that their justification that they had received a verbal refusal was not sufficient.

Thus, Xiol defends that the TC should have communicated with Congress and check whether or not the PP’s demand was pending a response. “It would not be understandable that the court, after having admitted the appeal and agreeing as a very precautionary measure the suspension of a legislative procedure, had to reject the appeal in the sentence (…) due to the breach of a formal requirement of such easy verification ”, he maintains.

In addition, he insists that the fact of accepting the precautionary measure – and suspending the parliamentary process – means granting protection to the PP in advance, something in his opinion is inappropriate according to the jurisprudence of the court itself.

He believes that it should have been resolved on the challenges

Within the framework of his particular vote, Xiol also points out that the Plenary should have taken into consideration the request of Unidas Podemos to study whether it was appropriate to remove two of the court’s magistrates – President Pedro González-Trevijano and Judge Antonio Narváez – before of the deliberation on the appeal of the PP.

The deputies of the ‘morada’ formation argued that both had a “direct or indirect interest” in the case, since the amendments included in the contested process affected the system by which they would be replaced from their posts, since both were in duties after their terms expired last summer.

Xiol considers that it was necessary for the court to sign a resolution on said petition apart from the resolution on the very precautionary measures that the PP requested to suspend the parliamentary process. For this, he believes that a plenary session “respectful of the principle of impartiality and in which the challenged magistrates would have been excluded” should have been formed.