For days I’ve been in my head and I’m humming the song by the ABBA group: “The winner take it all”, which, “according to rumors, Björn (the blond) composed in less than two hours , on a night of remorse and alcohol in 1980 and whose lyrics are inspired by his divorce from Agnetha (the blonde), the year before. Agnetha’s unparalleled performance was the key to success.”
The song goes: “I’ve played my cards / and that’s what you’ve done too, / there’s no more to say, / there’s no more aces to play. / The winner takes all, / the loser falls short / to the side of victory. / That is his destiny”. And he concludes: “The winner takes all, / The loser has to fall; / It’s simple and clear, / Why should I complain?”
The song refers to the separation of a couple, but I was reminded of it these days seeing the argument with which some justify that the party that wins the elections has the right to control not only the Executive and Legislative powers, but also the General Council of the Judiciary and the Constitutional Court. In other words, “winner take all.”
And the separation of powers?
They argue, in good faith, that Parliament is the basis of national sovereignty and that, therefore, the parliamentary majority has the right to legitimately control the Judiciary, and that preventing it is ‘undemocratic’. And one is left wondering what happened to Montesquieu’s democratic principle of separation of powers, and the system of counterweights between them to avoid possible totalitarian drift.
And when you say it, then change the argument to “and you more”. And he enters into a string of disqualifications, criticizing what the political adversary does. Without realizing that what is proposed is to do exactly what is criticized. That is to say, a “take off you to put me on”. And they insult you for considering you an enemy, when what some of us defend is that no party can do it.
Nor do they realize that, apart from the incoherence and contradiction of the proposal, it is myopic (very short-sighted) and counterproductive, because lowering the requirements now to be able to control the CGPJ and the TC, will allow later, when the elections are won another party, use that same regulation against them. Will they agree then?
The Constitutional Court
Article 159 of the Constitution, paragraph 1, says: “The Constitutional Court is made up of twelve members appointed by the King; four of them proposed by Congress by a majority of three-fifths of its members; four proposed by the Senate, with identical majority; two at the proposal of the Government, and two at the proposal of the General Council of the Judiciary”.
And section 3: “The members of the Constitutional Court will be appointed for a period of nine years and will be renewed by third parties every three.” The current situation is that the General Council of the Judiciary does not reach an agreement on its two candidates and prevents renewal, by third parties (four members), although the Government already has two of its own.
Therefore, the reform presented (DF 1) says: “If nine years and three months have elapsed one of these two bodies (obviously, it refers to the General Council of the Judiciary) has not made its proposal, the renewal of the two Magistrates or Magistrates appointed by the body that has fulfilled its constitutional duty on time” (obviously, it refers to the Government).
The General Council of the Judiciary
With this modification of the Organic Law of the Constitutional Court (art. 16.1) it would have been for the partial renewal -and of sufficient control- of said body, although it seems that with it the constitutional mandate (art. 159.3) of a renewal by third parties (four members). Therefore, the proposal (DF 2) also modifies the Organic Law of the Judiciary (art. 599.1.1).
The current regulation states that “The Plenary Session (of the CGPJ) will take cognizance of… the proposal for the appointment, by a three-fifths majority, of the two Magistrates of the Constitutional Court whose designation corresponds to the General Council of the Judiciary, which will have to be made in the maximum period of three months from the day following the expiration of the previous mandate.”
And, in the event that an agreement is not reached, the reform proposal adds an express procedure for the election of the two candidates, which: 1) does not require a minimum quorum, 2) nor does it require a three-fifths majority (a simple majority is enough) and 3), as it is imperative, its non-compliance can lead to responsibilities of all kinds, including criminal ones.
1. It seems that such a far-reaching modification cannot be made, as the Constitutional Court has already said, by means of amendments to a Proposal for an Organic Law to modify the Penal Code that has other objectives (repealing the crime of sedition and penalties for reducing the crime of embezzlement, to comply with the agreements reached with the pro-independence parties).
2. But neither does it seem that such a far-reaching modification should be made through a specific Organic Law Proposal (of the parliamentary groups), due to the urgent procedure, instead of processing a Draft Organic Law, with the prescriptive procedures public consultation, the observations of the ministries involved and, above all, the report of the council of state.
3. Finally, if the announced modifications are carried out -despite everything-, it does not seem that this will settle the matter, since there are well-founded legal doubts that -by means of an Organic Law- the constitutional provisions of renewal by thirds and a three-fifths majority. Although, in the event that said Law is appealed, the TC would already be ‘under control’.