Countdown to Spain’s constitutional crisis

Addendum: We discovered that Spain’s Socialist government actually managed to pass an organic law in March 2021 which largely went under the radar. It prevents the general council of the judiciary from making certain key judicial appointments including the 2 appointments to the Constitutional Court after its terms is expired. The Conservative opposition challenged this law so far without success. As such the 2 members nominated to the court by the judicial council will continue to serve longer.

This fact makes the scond part of this atrticle largely pointless but ironiclly now the government might repeal the part of the organic law preventing the constitutional court appointent to deflate a new development in the Constitutional Court.

We will provide a follow up soon.

Is Spain heading for a constitutional crisis? No, I am not asking this because of the Catalonian independence question, talk of a right-wing military coup amongst officers in the army, the totalitarian ambitions of the current socialist-communist government or because of how Covid has worsened already existing polarization (though none of that has helped), no it seems like the legitimacy and respect of the nation’s constitutional court might be in grave danger and that could be the last straw.

Spain’s constitutional court consists of 12 members appointed for 9 year terms (too short in my opinion, doesn’t guarantee enough independence from politics) after which their terms can be extended by 3 years (doesn’t the possibility of 3 year renewal or non-renewal put great political pressure on those judges and harm the independence of the court?).

4 are appointed by a 60 % majority in the lower house, 4 by the same majority in the senate, 2 by the governments, and 2 by the general council of the judiciary.

After the 9 years terms (still too short) of the judges are up, they stay in their seats till a replacement is chosen. It recently took a couple of months to fill 4 vacancies that were to be filled by the lower house, since the right-wing minority opposition was able to prevent a 60 % majority from being reached, causing the left-wing government to actually support 2 right-wing candidates alongside 2 left-wing ones as a compromise. The opposition, the minority, gets to have an equal say as the majority under this system (as long as they have 40 % + 1 of the power, not perfect but better than pure majoritarian tyranny).

But if you thought that the fact that it took several months before constitutional court seats were filled was too long, Spain’s General Council of the Judiciary has had a similar situation but one that has lasted more than 3 years, with no end in sight. The General Council of the Judiciary consists of 20 judges and jurists chosen by a 60 % majority in both houses of parliament. It nominates all national judges, including those of the Supreme Court. It advises the government on law proposals and as previously mentioned, it choses 2 of the judges of the Constitutional Court and this might prove to be problematic soon.

The council’s membership is supposed to be renewed every 5 years. But the current council has served since 2013. This is because the right-wing opposition has successfully prevented a 60 % majority vote for achieved on this vote as well. The general council of the judiciary from 2013 was from when the center-right People’s Party ruled, so their right-leaning could continuing ad interim by default isn’t exactly something they mind too much.

The Socialist governments actually wanted to pass a law that would reduce the requirement to a simple majority, if a 60 % majority couldn’t be reached, but they withdrew this after the EU attacked this for further politicizing the judiciary.

(The EU actually slammed a pro-European progressive socialist government for threatening the rule of law and they actually listened, well I’ll be…)

So, the right-leaning general council of the judiciary has been nominating national judges for more than 3 additional years now and giving critical advise to the far left government’s proposals on multiple occasions, including its highly controversial democratic memory law.

But now, in just a few weeks, the general council of the judiciary has to nominate its 2 judges to the constitutional court, as the 9 years terms of the last 2 judicial council nominees are almost up.

I assume the leftist government won’t agree with a general council of the judiciary that is more than 3 years out of date and kept in place by the right-wing opposition, appointing 2 judges for 9 years terms to the highest court.

But what can they do? There is precedent isn’t there? The council has nominated judges for the Supreme Court even after its term had expired so why not two constitutional court judges? But has there ever been an extended council that made such constitutional court appointments? The leftist government would obviously prefer for the constitutional court judges to stay in their seats till a new general council of the judiciary is chosen but that might take a pretty long time. So, the council might take it upon itself to appoint the two new ones.

This could lead a to a dispute. In Spain the Constitutional Court itself decides of the validity of the appointment of new members. But the court’s membership is rather divided American style, with a slim majority for the conservatives. A partisan ruling in favor of 2 new right-wing judges might cause a leftist backlash similar to the USA, though in Spain the number of constitutional court judges and their terms are clearly defined in the constitution so court-packing isn’t really a possibility.

Whether progressive protesters would be willing to threaten judges in Spain as they do in the USA (with tacit government approval) we’ll have to wait and see. But that would be a full return to the republican antics of 36. It would be the perfect excuse for coup happy elements in the army to intervene.

As I have said previously, the constitutional court will become a battleground if the repressive ‘democratic’ memory law is passed by the government (although it is currently rather stalled).

That will be a testcase for freedom of speech, association and the ability of the government to dominate the historical narrative.

If history repeats itself, it seems to me that we’re in about 1930/31 in terms of the decay of constitutional democracy. How many people are aware of the threats to constitutional democracy in the Western world? It is no longer a problem on the other side of the world. The basic structures are still holding the burning building in place, but for how long?

Ramon Giralt

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