The General Council of the Judiciary (CGPJ) sees little viable application of the law that requires parity in the specific case of the Constitutional Court and the Fiscal Council. The governing body of the judges has approved this Thursday its report on the first law of equal representation and balanced presence of men and women in decision-making bodies and its opinion is positive, but warns that, in some bodies, it will be difficult to apply the rule that urges to include "at least 40% of each of the sexes". The objection of the CGPJ is based on the fact that the form of election of the Constitutional Court and the Fiscal Council prevent shielding that quota, although in the first case it could guarantee 50% of men and women. Regarding the governing body of the judges themselves, the report, written by the progressive vocal Pilar Sepúlveda, warns that the new law "departs from the term of equal presence, which appears in the current wording of article 567.1 of the Organic Law of the Judiciary", to be "replaced by that of balanced presence".
The report of the CGPJ on the new laws is mandatory, but not binding, so the Government may make some changes in the norm according to the conclusions of the Council, but it is not obliged. The text of the CGPJ, among other general considerations, points out the confusion that can cause the title given to the law, which includes the term "equal representation", in clear allusion to equality. "This term does not fit with the model of representation that is proposed throughout the draft -with the exception of the reform that affects the Organic Law of the General Electoral Regime (LOREG)-, which is not equal but balanced and that is identified with that in which there is at least 40% representation of the sex in a minority situation, " notes the report. The text The report points out that the parity model of electoral lists is not new in our legal system and has been fully validated by the Constitutional Court.
In the case of the Constitutional Court, the preliminary bill amends article 16 of the Organic Law of the Constitutional Court to require the bodies that have to make proposals for the appointment of magistrates to guarantee the principle of balanced presence between men and women, so that they include at least 40% of each of the sexes. This forecast is, according to the report, impossible to comply with given the number of judges that by constitutional mandate corresponds to propose to each of the bodies designated by the Constitution: 12 members appointed by the King; four on the proposal of the Congress by a three-fifths majority of its members; four on the proposal of the Senate, with an identical majority; two at the proposal of the Government, and two at the proposal of the General Council of the Judiciary.
"Given the number of members that may be proposed by each of the designated bodies, it would seem more appropriate to resort to another percentage other than that proposed as a concept of principle of balanced presence relating to a minimum of 40% of each of the sexes, which, in practice, cannot be realized," warns the report, which proposes that the percentage be set at 50% for each sex. After the last renewal, the Constitutional Court already has that 40% of women that the law will require: 5 out of 11, 45%, in the absence of renewing magistrate number 12.
Regarding the Fiscal Council (the main advisory body of the Attorney General of the State) the problem derives from the fact that this body has elected members by the fiscal career and the candidacies that are presented, warns the text of the CGPJ, "are not only open, but combinable with each other, so that each voter can exercise their right, without necessarily being subject to the names included in the same candidature". That is, each prosecutor votes for six candidates from open lists and can combine several lists, so regardless of the mode of composition of the candidacy, a balanced presence of men and women cannot be guaranteed. "The nature of the vote cast by voters and the electoral system that regulates the election of elective members, make it impossible to demand that the composition of the Fiscal Council conform imperatively to the principle of balanced presence contemplated in the reform," says the Council's report.
The text also values the application of the new law in the CGPJ itself and warns of a clash between the norm that has just been approved by the Government and article 567.1 of the Organic Law of the Judiciary, which states: "The twenty members of the General Council of the Judiciary will be appointed by the Cortes Generales in the manner established in the Constitution and in this Organic Law, in accordance with the principle of equal presence between men and women". Faced with this mandate, the new law speaks of "balanced presence". "The pre-legislator should analyze the dysfunction that may be caused by the coexistence of two texts projected with a different content" for the future renewal of the Council, the text concludes.
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