The Constitutional Court has endorsed the urgent procedure that was given to the legal reform by which appointments by the General Council of the Judiciary (CGPJ) were prohibited while it was in office, as well as that experts were not summoned to give their opinion on this parliamentary initiative. Both agreements were adopted by the Congress Board, and were appealed by the PP, which saw in them a violation of the right of participation and political representation of its deputies. The court of guarantees, however, has considered that such an infringement of fundamental rights did not occur and that the governing body of the chamber acted within the scope of its powers.
The appeal was presented by the PP spokesperson in Congress, Cuca Gamarra, and by the deputy general secretary of the popular parliamentary group, Isabel Borrego. Both went to the Constitutional Court, challenging the agreements of the Board to order the debate of the bill that prohibited the governing body of the judges from making appointments of high judicial positions while they remained in office. The thesis of the lawsuit was that these decisions violated article 23 of the Constitution—relative to the aforementioned right of political participation—by applying the emergency procedure to a legal reform of special importance.
The applicants for protection also alleged that their parliamentary function – and by extension that of all the deputies in their group – was also harmed by denying the request for reports from the Council of the Judiciary and the Venice Commission itself. Nor was the summons of “the agents affected by the proposed reform” or experts from the legal community accepted.
The ruling – for which Judge María Luisa Segoviano, from the progressive sector of the court, was the speaker – mentions that last January the unconstitutionality appeal presented by the PP parliamentary group against the prohibition of Council appointments once it had expired was rejected. his mandate. In that appeal, it was already rejected that this reform violated the rights of parliamentarians, an assessment that now extends not only to the legal change carried out, but to the way in which it was done, in accordance with the Chamber’s regulations. This previous challenge was signed by fifty deputies, the minimum required by law when it comes to an appeal of unconstitutionality.
The ruling that rejects the appeal for protection resolved now also dismisses the challenge to the decisions adopted by the Bureau of the Justice Commission of Congress along the same lines as those of the governing body of the Chamber. The ruling is based on article 44 of the Congress regulations, which establishes that the commissions may collect reports and the appearance of experts, “but it does so in optional terms, so the Table of the corresponding Commission has a margin of discretion. in this regard based on the considerations it deems most appropriate, without its mere request implying any obligation to accept them.” The court also takes into account “how advanced” the procedure followed in the aforementioned commission was when the PP formulated its requests.
Judges Ricardo Enríquez, Concepción Espejel and César Tolosa—belonging to the conservative bloc of the court—have cast a dissenting vote against the sentence, considering that there was a violation of the representation rights of the PP deputies. In the opinion of these magistrates, the Congress Board rejected the requests of the popular parliamentarians a month and a half after they presented them. They consider, therefore, that there was a failure to fulfill its functions on the part of the governing body of the Chamber and that therefore there was an “unjustified delay” in addressing their proposals, which “prevented the holding of the requested appearances,” violating their rights. and the exercise of their powers or “right into the job” as representatives of their constituents.
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In her dissenting opinion, Judge Concepción Espejel adds to these considerations the arguments of another previous dissenting vote, signed together with Judge Enrique Arnaldo, describing it as a “fraud of law” that the prohibition of appointments to the Judiciary was not proposed directly by the Government. and was processed as a bill, which would have forced them to request the reports that the PP considered necessary for such a far-reaching legal reform. For Espejel, added to this was “the processing of the bill through the urgent procedure, which frustrated sufficient debate in the Cortes Generales on this legislative reform affecting nothing less than a constitutional body such as the General Council of the Judiciary. ”, thus undermining in his opinion the function of parliamentarians.
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