The message from Minister Félix Bolaños that the Government will be able to appoint the two Constitutional Court magistrates that correspond to it without waiting for the CGPJ to renew itself and appoint its two has generated great doubts within the TC. Consultations with magistrates and former magistrates of the Constitutional Court show that there is no clear support for the constitutionality of this position, which predicts that, if carried out, it would provoke an institutional conflict between the TC and the Executive. In addition, the court of guarantees would be in a very delicate internal situation, because the Plenary of the body has to give the placet to the new candidates.
The Constitution establishes that the members of the Constitutional “will be renewed by third parties every three [years]”. One of those third parties, which should be renewed as of June 12, is made up of two magistrates at the proposal of the Government and two at the request of the CGPJ. But the Council has blocked their appointments, which prevents a complete renewal. The third would be a sixth.
Can the government do that? “The government can,” Bolaños said Monday in an interview on Onda Cero. Do you agree within the TC? «I agree… with what the Constitution says, which obviously is not that. The thing could not be more clear. The appointments go in a batch, it is not said ‘from time to time we appoint someone’. No, that is scheduled, “says one of the magistrates consulted.
«The Constitution clearly establishes that the renewal is by thirds. Naming a part is trileros, “says another magistrate. “There is a principle of institutional loyalty that the Government would not comply with if it actually does what it announces. A government that respected the Constitution would await the renewal of the Council », he adds.
But within the court there are also those who support the constitutionality of the Government’s thesis. “These are appointments that are on their own,” says a Constitutional magistrate in conversation with EL MUNDO. He remembers when the guarantee court was first established, the UCD government appointed its two magistrates, while the CGPJ took four months to do so. In fact, that first TC started with the four magistrates of Congress, the four of the Senate and the two of the Executive. Other magistrates of the TC emphasize that this joint renewal was impossible and that the Government-Council bloc has never since been divided.
Some of the magistrates consulted remain in a middle ground. “I don’t see a big problem. It is feasible, although interpretable, because it is true that the Constitution seems to want them to be simultaneous appointments, ”says one of them.
The sources consulted believe that if the Executive carries out the idea outlined by Bolaños, there would be problems in being able to question it in court, since it is a decision regulated by the Constitution that can escape the jurisdiction of the Supreme Court.
In addition to the possibility of appointing its two magistrates, the Government could choose to repeal or modify the recent reform with which it prevented the Council from making discretionary appointments. Another option -a priori distant- is that the Constitutional itself estimated the resources of PP and Vox and declared unconstitutional that reform that limited the performance of the CGPJ.
To his affirmation yesterday that the Executive can renew its two magistrates, Bolaños added a criticism of the PP. “It is very serious that the main opposition party does not openly comply with the law,” he said, adding that if the popular party complies with the Magna Carta, they will renew “the four magistrates of the TC as soon as there is a term.”
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