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Independence of the Judiciary

2019-09-23T14:05:37.180Z

I know that the readers of this newspaper are far from being dummies but, as Ortega said, it is intelligent who is five minutes from looking like a fool, so always



I know that the readers of this newspaper are far from being dummies but, as Ortega said, it is intelligent who is five minutes away from looking like a fool, so it is always convenient to remember the basics of important issues.

The General Council of the Judiciary (CGPJ) is the body constitutionally destined to govern the Judiciary, in the administrative-governmental aspect. Designates those who will exercise the highest positions of the magistracy and sanctions those who violate the regulations. According to the Constitution, it is made up of 20 members, of which 12 must be judges or magistrates, four at the proposal of Congress and four of the Senate. The Organic Judicial Power Act (LOPJ) of 1980 interpreted that mandate in the sense that those 12 members should also be elected "by" judges and magistrates. But in 1985, a newly arrived PSOE decided to change the LOPJ to establish that all the members of the CGPJ should be appointed by the Cortes , in principle to avoid that the reforms that were going to push the left were watered down by a still truffled magistracy of Francoist elements, although in reality it was intended that the "will of the people" manifested at the polls (and administered by the party) reach all levels of the State and not be restricted by limited corporate visions or annoying legal obstacles. It is when Alfonso Guerra allegedly proclaimed that Montesquieu "had died" , a memorable moment that begins the political invasion of many other institutions that are on everyone's mind. The PP appealed the reform before the Constitutional Court, but the latter (also politicized by the appointment of its members) endorsed it, although warning of the risk of turning the CGPJ into a reflection of the parliamentary struggle. Now, when the PP came to power, it was not unimportant to keep it in force and, even worse, it was not blushed to politicize the CGPJ even further in the 2013 LOPJ reform.

The kind reader might think that this question is nothing more than an irrelevant competence or corporate problem; even that raising it is questioning the independence of the Judiciary. At all, the thing is more complicated, although no less transcendent. I will try to explain myself. The judge that solves the thousands of ordinary matters is absolutely independent legal and really, because it does not depend on anyone in its resolutions; and, in addition, it is remarkably impartial in practice in Spain, very professional in the intermediate levels. However, a CGPJ appointed by the General Courts reproducing, after arduous political negotiations, the distribution of the political power of the hemicycle is going to be a decisive political weapon, whose caliber is equivalent to its ability to determine which people are the ones who will exercise the most high magistracies, in the key rooms of the Supreme, particularly the second, of the criminal, and in other important courts. This fact, together with the institution of the outcrops , which allows certain public offices - too many in Spain - to be judged directly by the higher levels of the magistracy, prefigures a situation potentially much more favorable to the interests of the parties that, above, They will appear formally clean .

For power is not exercised today by rude orders or stark interferences that dazzle the formally unpolluted image of the powerful. Today the remote control of the institutions is exercised - as if it were a rudimentary Cambridge Analytica - through the inoculation of undetectable cognitive biases by conditioning the judge's professional career to decisions that, finally, are political because the body that has to Take them - the CGPJ - is appointed by politicians and made up of people who are expected to comply, although they may not do so, the instructions given by the parties. And they will do it because, on the one hand, they are in ideological harmony with the one who has appointed them and, on the other, because they know that their professional or political future will depend on the opinion that their appointed one has on their performance; as it became evident in the sad messages of Cosidó last year, in which it was revealed who was going to be the president of the Council before he had met and agreed, as was his prerogative. In reality the decisions are not taken by the Council, but who appointed their members, who boasted rudely of his power caused, I remind them, the resignation of Judge Marchena .

And, of course, with the appointments made by the CGPJ the same can happen. For sample, a button: the Gürtel affair was going to be judged by a court that would preside over a judge that was part of the CGPJ at the request of the PP, was awarded the Great Cross of San Raymond de Peñafort by Mrs. Cospedal , who praised her widely, and was appointed president of the criminal court of the National Court by the CGPJ controlled by the PP. Due to the scandal it was avoided. But does anyone believe that a person in these conditions would not have any perverse incentive in the matter?

It would not be fair to say that a judge so appointed cannot be independent and impartial; but it would be stupid to deny that he may be conditioned, even without realizing it: it is not necessary to give him instructions or suggestions because, in fact, his capacity for judgment has already been undermined with prebends and appointments that everyone knows who they owe and with the inevitable fact that your professional future depends on your attitude.

That is why this issue is so important and some political parties and associations (the Civic Platform for Judicial Independence deserves special mention) have emphasized it. The control of the key institutions by the parties, directly or indirectly, deteriorates the basic structures of an advanced democracy that boasts , in which the representative principle enshrined in the periodic elections, the recognition of fundamental rights and freedoms, the Legality of the Administration but also the division of powers, because the only way to avoid abuse of power is to establish another power that controls and balances it.

But that institutional framework, formally perfect, which we experienced in 1978 has been in practice a successive deterioration that has its most significant manifestation in the independence of the Judiciary and that has driven a transformation of the democratic system into partitocracy, in which The defining element of power is no longer the will of the people expressed in the law and articulated by the rule of law, but the decision of the leadership of the parties. And, unfortunately, this deteriorated institutional structure, faced with the litmus test of the crisis, has allowed the development of populisms whose idea-force is precisely that the popular will is above the law , as without bother proclaimed Torra in A recent radio interview. What is worse, the deterioration appears already assumed as irremediable by the classical parties that, without blushing, through successive justice ministers, claim the right to control the CGPJ through Parliament. That is why the political blockade of today is also the blockade of the renewal of the CGPJ.

The seriousness of this situation is not a hobby of four activists: it has been pointed out by the Council of Europe (Recommendation 2010/12), the European Court of Human Rights and GRECO (Group of States Against Corruption), specifically for our country. And, of course, its correction is not that the judges name all the members of the CGPJ: that could also mean a power without control. A balanced solution such as the one foreseen by the first LOPJ would be enough to properly interpret the Constitution. The solution is not very complicated, but the problem is crucial for our democracy and it should be remembered, as if we were dummies .

Ignacio Gomá Lanzón is a notary and president of the Hay Right Foundation

According to the criteria of The Trust Project

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  • PP
  • Spain
  • Senate
  • constitutional Court
  • European Court of Human Rights
  • PSOE
  • General Council of the Judiciary
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