The 'flashover' of the Constitutional Court

Spanish politics has entered this week into what firefighting experts call a

or sudden generalized combustion, in which, suddenly, in an apparently controlled fire, all the elements that until then remained intact begin to burn due to the radiation of the flames.

The bonfire of the blockade of the General Council of the Judiciary, fueled by the PP for its benefit during the last four years, and the Government's efforts to put it out with what the jurist Elisa de la Nuez describes as a "legislative flamethrower", is has now united the Constitutional.

The court —with a conservative majority— will decide this Monday whether to paralyze, at the request of the PP and Vox, the parliamentary processing of two amendments designed to unblock their renewal.

of 2017.

These amendments, now in the eaves, intend to force the renewal of four of the 12 magistrates of the guarantee court whose mandates expired on June 12, retouching for this the organic laws of the Judiciary and the Constitutional Court.

Congress approved them on Thursday, in a day of enormous tension, after the five progressive Constitutional magistrates managed to postpone to this Monday the debate on the appeal for amparo in which the PP requests the court to suspend its processing in a very precautionary manner.

This postponement of the Constitutional plenary session, called urgently by its president, Pedro González-Trevijano, prevented the paralysis of the amendments, which are now in the Senate, from being consummated.

However, the mere call unleashed inflamed rhetoric in Congress,

the independence of Catalonia”.

This newspaper has consulted with a dozen legal experts — most of them on condition of anonymity.

All of them agree that Spain is going through a "constitutional crisis" with unforeseeable consequences due to the intense politicization of the constitutional bodies, and the increasingly undisguised desire of the parties to control the institutions called upon to act as a counterweight to their decisions.

Xavier Arbos, professor of Constitutional Law at the University of Barcelona, ​​points out that "the moral authority of the Constitutional Court to resolve is at risk" due to this "more political than legal" conflict, and considers that "if the suspension is agreed [ of the processing of the amendments] the regulatory autonomy of the Chambers could be affected" and the court, which "seems to be judge and party (...),

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Arbos fears that the appearance of partisanship in the Constitution will feed populism.

“The legitimacy of a court is based largely on appearances;

If it is discredited, when the guardian is missing, many will feel it”.

He also considers the spectacle of "generic outbursts and disqualifications" experienced on Thursday in Congress "deplorable."

Elisa de la Nuez, State lawyer and general secretary of the Hay Derecho Foundation, locates the origin of this institutional "gangrene" in the blockade of the renewal of the CGPJ, which the PP has kept paralyzed since December 2018 and which, in turn, , affects the renewal of the Constitutional.

However, she considers the legislative formula devised by the Government to unblock the guarantee court as “wild”.

This involves urgently lowering, without consultation, the quorum of three fifths of the CGPJ to appoint the two constitutional magistrates that the judicial governing body is responsible for appointing, and suppressing the process of supervising the suitability of the new members by the court.

And all this, in a bill designed to change the Penal Code.

De la Nuez affirms that, although the PP has the right to appeal under amparo and that there are shadows of unconstitutionality in this reform, a "clash of legitimacies" may occur between Parliament and the court, which he describes as a "very touched body by politicization, occupied by the parties”.

“It is a drama to know in advance what each magistrate is going to vote most of the time, what we are seeing is the fruit of a deterioration of many years that is exploding now, the extreme of a degenerative disease”, she points out.

personal ambition

The jurists consulted appreciate a confluence of factors in the most serious crisis in 44 years of democracy.

On the one hand, the attempt by the two big parties to control the institutions, placing in them figures who are no longer ideologically related, but directly obedient to the political formations.

In this phenomenon, a Supreme Court magistrate deplores that the parties resort to magistrates "from the second category of the career" for the Constitutional Court, that is, not belonging to the high court, which supposes "an institutional degradation."

On the other hand, they point out the factor of the personal ambition of the candidates.

"This corruption of the system is not only a matter of the parties, but also of the people who, from within the judiciary, lend themselves to this," says Elisa de la Nuez.

A magistrate belonging to the highest percentile of the ladder considers that Trevijano's hasty action in calling the extraordinary plenary session is “very serious and legally highly questionable;

as harmful and detestable as the legislative rush ”, and he appreciates a possible “fraud of law ”in the PP's amparo appeal.

“This democratic pathology of the Government and the PP cannot be integrated into normality”, affirms this judge, who considers that the CGPJ “smells of thanatological chemistry”.

“With these

political and judicial

In some legal environments, especially in social networks, it is demanded that the King visibly perform the work of arbitrator and moderator of the regular functioning of the institutions that article 56 of the Constitution reserves for him.

De la Nuez believes that exercising this mediation publicly "would be lethal" for the Head of State, and a member of the judicial leadership advises him to "remain in the tent until the sirocco passes."

A member of the fiscal leadership emphasizes the special responsibility of the Government, which he reproaches for generating "confrontation and imbalance" with the carousel of laws to achieve the renewal of constitutional bodies, removing and returning powers to the Council of the Judiciary.

However, this jurist doubts the very precautionary way to suspend the processing of the laws to which the PP aspires.

Another Constitutional professor, who claims anonymity, confessed on Thursday his "relief" that González-Trevijano agreed to postpone the plenary session and considers that the court should study the PP's appeal through the ordinary procedure, without haste.

All to prevent the fire from spreading without remedy.

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