17/07/2021

Open war in the Constitutional Court

2 min
Image of the façade of the Constitutional Court building in Madrid.

The sentence declaring the first state of alarm approved by the Spanish government in March 2020 unconstitutional has made evident what had already been sensed for some time: the extreme politicisation, and also division, of a court which, instead of being a generator of consensus and legal security, has become another stage in the struggle between conservative and progressive Spain. The fracture is growing in a court in which four members' mandates have expired and which the right wing People's Party refuses to renew due to its current conservative majority. The same is true of other bodies such as the Court of Auditors or the General Council of the Judiciary.

In this context, the dissenting opinion written by the former state attorney general under the PSOE, Cándido Conde-Pumpido, is particularly significant. Conde-Pumpido does not limit himself to a legal criticism of the decision by the conservative majority, but also accuses them directly of having political intentions and wanting to intentionally harm the government. And he does not spare his colleagues. He accuses them of doing "an exercise more typical of an armchair jurist than of the highest interpreter of the Constitution". Of having a legal conception of a "layman" in the matter. And he concludes: "The sentence does not solve, but creates a serious political problem, by disarming the State against pandemics, depriving it of the instrument that the law expressly determines to deal with health crises, the state of alarm. And it does not respond to real legal criteria". The situation within the Constitutional Court is, therefore, open warfare.

Indeed, Conde-Pumpido is right in the legal argumentation because he distinguishes between restriction of rights, which is what the state of alarm does, and suspension of rights, which is what happens with the state of emergency. And it considers that the suspension of rights was not justified in the case of a pandemic. But the most serious aspect of the dissenting opinion is not this, but rather that, when it says that the sentence is not based on "true legal criteria", what it is saying is that it responds to political motivations. It will be interesting to read the rest of the dissenting opinions, but it should be noted that even the dissenting opinions of Xiol and Balaguer in the ruling against the Independence bid do not include these considerations of political intentionality: they are based solely on legal arguments. It is not at all common for a Constitutional Court magistrate to accuse his peers of acting out of partisan interest. The statement contributes to the discrediting of the Constitutional Court from within the institution itself, and states it clearly in a dissenting vote that will remain forever attached to the ruling.

From what has become known on the court's deliberations, moreover, it can be inferred that the majority of conservative magistrates (not all, because two voted with the progressives on this occasion) are willing to continue waging war against the government of Pedro Sánchez acting as battering rams of the PP and Vox. And to achieve this goal, they don't mind destroying what little prestige the Constituinal Court had left. The Spanish president would have to take good note and act accordingly if he wants, among other considerations, to recover the judicial prestige.