it is “technically contrary to the Constitution”

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The president of the Superior Court of Justice of Madrid, Celso Rodriguez, has stated in statements to Europa Press Television that, “from the respect that parliamentary initiatives can accept in a democratic system”, the reform in the election of the members of the CGPJ proposed by the Government is “technically contrary to the Constitution”.

The magistrate has based this affirmation in the judgment 108/1986 of the Constitutional Court against the reform of the system of election of the members of the Council in 1986. The Constitutional Court ruled in this judgment that the system of election of members would be in accordance with the Constitution if it could prevent it from becoming “a mechanism of translation of what the map of parliamentary majorities is “.

Rodríguez also recalled that the three-fifths majority “guarantees the need for consensus” while avoiding “the imposition of a determined parliamentary majority.” The magistrate has reflected that with this opinion, the Constitutional Court showed “a clear intention” to “avoid anything that might look like an attempt at politicization of the General Council of the Judiciary“.

Alternatively, the jurist has offered an argument against the Executive’s proposal, explaining that the 20 members of the Judiciary, once invested, have the same rights and powers, for which he understands that “It is not logical” that the 12 members of judicial origin can be elected by a qualified majority in Congress, while the remaining eight have to be confirmed by a three-fifths majority in Congress and the Senate.

The president of the Superior Court of Justice has shown favorable to a reform of the CGPJ Law aimed at the judges and magistrates who elect the 12 members of judicial origin of the Judiciary, “granting Parliament the appointment of eight jurists: four by Congress and four by the Senate.” “The Constituent Assembly in 1978 wanted without any doubt that the 12 members of judicial origin, those who are drawn from the judicial career, be chosen not only from among judges and magistrates, but also by judges and magistrates,” Rodríguez has sentenced.

The magistrate recalled that this original system was modified in 1985, through the reform of the Organic Law, and which gave rise to the judgment of the Court to which Rodríguez referred previously. Rodríguez has valued that since the judges are in charge of electing their representative body “there would be no traffic jam or blockade depending on the political climate that we may experience at all times.”

“The return to the initial system, which, I insist, is the one that the constituent legislator wanted in 1978, avoid, for whatever reasons, lack of political understanding lead to any blockade, “Rodríguez has offered.

The magistrate recalled that in the Organizational Law of the Judicial Power the so-called advisory capacity is contemplated within the powers of this body, which obliges the Executive to demand a report from the General Council of the Judicial Power to process laws that affect the judicial system in its set. However, Rodríguez has specified that this requirement only applies to draft laws, not being necessary the report for a Proposal of Law, legal form that the Government has used for this reform.

The president of the TSJM has declared himself surprised by this decision, since according to what he has affirmed, the draft bills are usually proposed by the Government and the bills by the parliamentary groups. “The channel of the draft law that would give an opinion, a hearing procedure, the option to pronounce has not been chosen, nothing less than the body that is affected by the reform itself,” the judge has reflected.

“Fundamental” to obtain the opinion of the CGPJ

Rodríguez has emphasized that “it is essential” to obtain the opinion of the Council on any reform to which it may be submitted, underlining that in any case this opinion contained in a report it is not binding.

The president of the TSJM has reflected on the rejection that the reform proposal has generated, both inside and outside our borders. The magistrate recalled that the European Commission, the Council of Europe and the Venice Commission have issued warnings about the danger of politicization of Justice through the method of election of members.

The magistrate has cited the report of the Group of States Against Corruption (GRECO) as an example of the large number of reports against a reform of this type and that point to the need to reinforce the image of the independence of the Judiciary to strengthen the credibility of the system. “The less sense of influence or interference can be projected from the Legislative and Executive powers on the Judicial Power the more we will get closer to respecting one of the pillars of a democratic system, which is the separation of powers “, the judge has maintained.

“That process has not been exhausted”

Finally, Rodríguez recalled that at this time “there is an ongoing procedure to renew the General Council of the Judiciary” that began two years ago. “Elections have been held, candidacies have been presented, they are deposited before the chambers, and that process has not been exhausted: it is a process that is still going on,” he defended.

In this sense, Rodríguez has observed that if the Executive reform goes ahead would have to be applied retroactively on process governed by legislation that has not been declared void. “This introduces an element of confusion about the consequences that the reform would have if carried out.”

The president of the TSJM has asserted that if even so the law were to prosper and in response the Constitutional Court was appealed, it “would declare that this modification is not in accordance with the Constitution.” In this scenario, it would be necessary to review “all the acts carried out by a Council that was appointed in accordance with an unconstitutional law.”

The consequences that could derive from this circumstance are so “vast and complex” that the magistrate has assured that he prefers “not to even contemplate that scenario.” “I trust that it cannot occur because the legal complexity when assessing the consequences of the acts produced by a Council appointed against the Constitution would be unthinkable,” the magistrate concluded.

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