Spain The vote against the TC's endorsement of the blocking of CGPJ appointments: "It is incompatible with the separation of powers"

The legal reform that blocked the appointments of a CGPJ without renewal meant the interference of the Legislative Branch in what the Constitution attributes exclusively to the Judicial Branch and, therefore, had to be annulled.

This is what four judges of the Constitutional Court maintain in the dissenting vote against the ruling that, with seven votes from the progressive bloc, endorsed this reform.

“This limitation that now prevents the General Council of the Judiciary from making certain appointments when it is in office is incompatible with the postulates that derive from the principle of separation of powers inherent to the rule of law,” affirm magistrates Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel and César Tolosa.

The magistrates, belonging to the conservative sector of the TC, consider that the law has meant “a denaturalization” of the governing body of the Judiciary when it is in office, “by depriving it of the essential powers attributed to the fulfillment of its constitutional task, and therefore affect the principles of judicial independence and separation of powers”.

“The independence of the Council with respect to the Legislative and Executive Branches has been weakened,” they continue, “thus contributing to a weakening of the independence of the Judicial Branch as a whole.”

They estimate that the legislative reaction to the blocking of the renewal exceeded what could have been reasonable to regulate situations like this. “Although there is no doubt that a Council without renewal, once the maximum term of office has passed, is an anomaly, this does not mean that the governing body of the Judiciary should be denatured, thereby affecting the independence of the Judiciary, under the argument that it lacks legitimacy”.

They add that it is assumed that the members are appointed without “partisan criteria”, so that their lack of renewal “does not entail a lack of legitimacy” of the Council.

Another front against the reform that highlights the dissenting vote is the European one. Neither the content nor the processing of the LOPJ reform has complied with the principles established by the Court of Justice of the EU and the Court of Strasbourg.

“The majority ruling has disregarded the European canon without any reasoning.” Both courts, the vote indicates, “have been convergingly configuring the content of the principle of judicial independence, inherent to the rule of law, and expressly recognizing the need to protect the autonomy of the Justice Councils, given the crucial role that these bodies in a democratic society as bulwarks against political influence on the judiciary.

The criticisms are not just theoretical. It is also “notorious” that the practical part of the reform has proven unsuccessful, they maintain. “If the purpose of the legislative reform was to ‘favor the renewal’ of the constitutional body of government of the judges, the impotence of such a design has been sufficiently evident by the passage of time, since at the date of this ruling this ruling persists. situation of ‘institutional anomaly’ consisting of the prolonged delay in the renewal of the Council”. The reform now endorsed by the TC came into force two and a half years ago.