42 aniversari de la constitució espanyola
Misc 06/12/2020

Judiciary: The high sphere of power that has always tempted PP and PSOE in equal manner

Ot Serra
3 min
Poder judicial La cúpula, el caramel que sempre ha temptat per igual el PP i el PSOE  Els guardians  De les essències

In 2019, the European Commission's Eurobarometer reflected that more than half of Spaniards (55%) perceived a lack of independence of the judiciary power from State, only lower than what the Bulgarians thought of their countries (58%), Slovenians (60%), and Croats (76%). It is a public impression that corresponds to what the Council of Europe has warned in recent years in the GRECO report, about the risk of politicization of the highest judicial instances. Does this respond to a failure of the Spanish Constitution?

The experts consulted agree that the most urgent issue that needs improving is the General Council of the Judiciary (CGPJ), as the problems to renew it have shown. "The Spanish Constitution can be improved, but it allows for a judiciary that is respectful of the democratic system", says Mar Aguilera, professor of constitutional law at the University of Barcelona, who believes that modifying the organic law that develops the Magna Carta could be enough. In fact, this is what the PSOE and Unidas Podemos are trying to do in Parliament.

The organic law establishes that the legislative chambers have the power to appoint the members of the CGPJ, and sets the criteria, thus developing the generic instructions contained in article 122.3 of the Constitution. The 1978 text only indicates that there are twenty members, twelve of whom are judges and magistrates, and eight lawyers and other jurists of "recognized competence" and with more than fifteen years of exercise proposed by the Parliament and the Senate, with a mandate of five years. "The problem derives in the practice that the political parties, the PP and the PSOE have had", says Xavier Arbós, professor of constitutional law at the UB, because "instead of looking for consensus, candidates they have filled their respective quotas". "Inevitably, the proposed people will have the gown attached to a certain label», he says.

Multiple variables enter the debate on an alternative model: Arbós mentions an election by lottery, which would take part between the judges and magistrates themselves, or a proposal in which all members of the CGPJ come from a judicial background, but that the requirements are changed to access it. The current system opens the doors to people with a similar life experience; mainly the wealthy class who can dedicate years to studying without having to worry about an income.

Reflecting society's plurality

Promoting inclusivity and equality -or, as article 9.2 of the Spanish Constitution says, "removing the obstacles that prevent it" - is related to the idea that the academic of the Autonomous University of Madrid Juan Antonio Mayoral Díaz-Asensio exposes in an article published in 2018 in Agenda pública. The article exposes the need for the judiciary power to reflect the plurality of society, whether in terms of gender, minorities, or territorial sensitivity. On the first point, Aguilera recalls the traditional photographs of the opening of the judicial year in the State, where men predominate; and on the latter, he maintains that the judiciary is the only power that is not decentralized. The principle of "jurisdictional unity" established by the Constitution, which in practice leaves the Supreme Court as the body that has the last word, would be one of the issues that Aguilera would reform.

The Magna Carta also establishes that the State Attorney General is chosen by the government, and experts agree on the need to modify it. Regarding incompatibilities, the text only indicates that you cannot join a party or union while in office. Arbós agrees, but believes that moving from politics to the judiciary power – and vice-versa – should be limited. Fernando Grande-Marlaska and Dolores Delgado are paradigmatic examples of this.