The Government could appoint its two TC magistrates but they will depend on the 'placet' of the court itself

If the Executive manages to get its two candidates to take office, there would be a shift towards a progressive majority

MADRID, 1 Jun. (EUROPA PRESS) -

On June 12, the mandate of 4 of the 12 magistrates that make up the Constitutional Court (TC) expires. To renew that third, the Government must appoint two and the General Council of the Judiciary (CGPJ) many others, although the temporary situation of the latter prevents it. Thus, the Executive could appoint its two candidates without having half of the CGPJ, but it would be up to the Plenary of the TC to decide whether to ratify them, according to legal sources consulted by Europa Press.

The issue arose this Wednesday, after the Minister of the Presidency, Relations with the Courts and Democratic Memory, Félix Bolaños, assured in an interview on Onda Cero that the Executive will be able to appoint the two TC magistrates that correspond to him although the General Council of the Judiciary cannot do the same.

The Constitution establishes in its article 159 that "the members of the Constitutional Court will be appointed for a period of nine years and will be renewed by third parties every three", being appointed by the King "four at the proposal of Congress by a majority of three fifths of its members; four at the proposal of the Senate, with the same majority; two at the proposal of the Government, and two at the proposal of the General Council of the Judiciary".

From the literal tenor of the article, it could be deduced that each third must be completely renewed, which would force both the Government and the CGPJ to appoint candidates to present the 'pack' of four. However, the aforementioned sources warn that it is a complex legal issue that should be studied in depth before reaching conclusions.

The sources explain that the Government could propose its two candidates, although the CGPJ could not do so because it was in office. The controversy would arise once they reached the plenary session of the TC, which is the one who corresponds to give the final approval to the people elected before proceeding with the final appointment. The sources emphasize that at this time what the Plenary can do in this scenario is unknown.

The reason that the CGPJ cannot propose its two candidates is that it has expired since December 4, 2018 and the reform of the Organic Law of the Judiciary (LOPJ) approved in March 2021 prevents it from making discretionary appointments in the leadership court while in office.

These months, he had hovered over the possibility that the TC would resolve before the deadline of June 12 the resources of PP and Vox that it has pending against that legal reform, as a way to unblock its own renewal.

However, the aforementioned sources rule it out, since the necessary consensus has not been achieved among the magistrates to resolve the aforementioned appeals. Apparently, there are opinions for all tastes, from those who believe that the reform of the LOPJ is completely constitutional to those who understand the opposite, including those who believe that it only violates the Magna Carta in relation to the appointments of the TC.

In any case, this June 12, the mandate of the president, Pedro González-Trevijano, the vice president Juan Antonio Xiol and the magistrates Antonio Narváez and Santiago Martínez-Vares will expire. In their day, González-Trevijano and Narváez were the two appointed by the Government of Mariano Rajoy, while Xiol and Martínez-Vares were the ones nominated by the CGPJ.

Thus, in the event that the Plenary of the TC chose to give the green light to renew only two of the four magistrates that touch, both González-Trevijano and Narváez would leave, who would be replaced by the two candidates proposed by the Government, thereby promoting a turnaround from the current conservative majority to a progressive one. Although it should be remembered that, predictably, the turn would occur the same with the nominees by the CGPJ.

All in all, the sources consulted trust that "soon" there will be a political agreement between the PP and the PSOE that will allow both renewals to be unblocked, that of the CGPJ and that of the TC. Other sources, on the other hand, predict that this pact is not forthcoming, pointing out that, being optimistic, it could arrive towards the end of July.