The Spanish institutional crisis of 2022
- Emma Roberta Guercilena
- 28 ott 2023
- Tempo di lettura: 6 min
Spain is emerging from an unparalleled institutional crisis in the history of its democracy. This crisis has raised worries not only in Spain, as the King Felipe IV affirmed in his usual Christmas speech, but also in the European Union, to the point that the Commission was prompted to formally request Spain to solve the problem as soon as possible.
The question that emerged is what triggered a crisis of such huge scale, one that could "erode the institutions" and cast a shadow over Europe. The answer to this question seems to be the deterioration of relations between the two major political parties in Spain, the Spanish Socialist Party (PSOE) and the People's Party (PP), due to the lack of renewal of the Consejo Generàl del Poder Judicial (General Council of the Judiciary). This later led to a dispute between the Cortes Generales and the Constitutional Court.
Pretty confusing, right? For those not familiar with Spanish law, you'll be given a brief understanding to grasp this intricate matter.
Spain is one of the few remaining models of constitutional monarchy in Europe, the King Felipe IV is the head of state, he exercises the representative functions and other powers expressly assigned by the Constitution. The legislative power is exercised through a bicameral system, the Cortes Generales, divided into the Congress of Deputies and the Senate. The executive power is in the hands of the Council of Ministers (Consejo de Ministros), led by a Prime Minister. Lastly, there's the judicial power, organized from ordinary courts up to the highest level, the Tribunal Supremo, the equivalent of our Court of Cassation. To guarantee the respect of the Constitution (and its principles) and the conformity of laws, there is the Constitutional Court, roughly similar to our Constitutional Court. The Consejo Generàl del Poder Judicial, on the other hand, is the correspondent of our Superior Council of the Judiciary. Its members, 12 of whom are chosen among judges and magistrates and 8 among lawyers and jurists, are elected by the chambers by a majority of 3/5 of the members, according to the Organic Law on the Judiciary n. 6/1985 (amended with the two Organic Laws n.2/2001 and 4/2013).
After a quick summary of their legal system, we’ll now analyze the aforementioned facts and put them in order.
The situation of paralysis that led to this crisis began in December 2018, when the five-year term of office of the members of the CGPJ elected in 2013 expired. This happened as a result of the lack of a parliamentary agreement on the appointment of new members, as they continued to exercise their functions through an extension.
Each party accuses the other of the failure to reach an agreement on the renewal of seats.
At this point, the issue calls for a clarification to be made, in order to understand the issue and the reason why this crisis has involved the institutions and democracy itself to such an extent: in Spain, although the judicial power should be autonomous, it is, in reality, highly politicized. This means that political parties have a significant influence over it. This is because, following the latest Organic Laws in force, especially the one from 2001, all members are selected by the Chambers, and they are obviously influenced by the political majority, which tends to choose members who are politically aligned with them. The selection process involves picking candidates from a list proposed by the judges’ professional associations and unaffiliated judges. In reality, the judges’ associations’ role is limited to the approval of those members that, after reaching an agreement with the designed party, take part in the association elections as a personal initiative.
The consequence is a network of personal relationships between candidates and their parties, which eventually results in a division in political blocs of the institutional organ.
An attempt was made in order to identify a solution to this problem, which originated two reforms with diametrically opposed purposes. The first one, approved by Organic Law No. 4/2021, amends Article 570 bis of Organic Law 6/1985 and regulates the legal system of the prorogation of the term of office of the CGPJ, causing a limitation of the functions of the members and relieving them from their responsibilities of appointing certain important judicial positions (such as judges of the Constitutional Court, Supreme Court, and the superior courts of justice of the autonomous communities). The result, which should have encouraged the reaching of an agreement, led instead to a serious case of vacant positions in many judicial bodies across the country.
The second reform, approved in 2022, with the aim to address the issue of renewing the Constitutional Court, planned on reappointing one-third of its judges with the simultaneous appointment of two judges proposed by the government and two by the CGPJ. The plan was to re-establish the power of the judges of the CGPJ to appoint constitutional judges, with the expectation of a binding deadline of three months from the expiration of the previous mandate.
However, what was not taken into consideration with the second reform was that the division into blocks and the radicalization within the CGPJ would be so harsh that an agreement by the two constitutional judges couldn’t be reached within the deadline.
The situation further worsened because of the resignation of the President of CGPJ, Carlos Lesmes, on October 10, as he wanted to distance himself from the complex situation.
The crisis reached its peak with the suspension in the "cautelarissima" form of two amendments by the Constitutional Court, this situation led to a conflict between the political organ and the Cortes Generales. The amendments, though it was not explicitly stated, intended to change the way the constitutional judges appointed by the CGPJ were selected, in order to achieve an immediate renewal. Yet, these amendments were substantially and formally unconstitutional due to a legal defect that was soon noticed by the Constitutional Court.
To briefly analyze them in detail: the first amendment revised the procedure and quorum required for the election of these judges by the CGPJ. Once the three-month deadline expired without obtaining a 3/5 majority, a simple majority would have sufficed from the second voting onwards. It also introduced penalties, which included criminal penalties, and responsibilities for anyone involved in the failure to elect judges. On the other hand, the second amendment, modified Article 16 of the Organic Law of the Constitutional Court, so the judges appointed by the government could take their positions avoiding the wait for the members appointed by the CGPJ, depriving the Court of the ability to verify the judges’ qualifications, which was instead granted to the proposing authorities.
Thus, it is possible to understand the perplexity and aversion of the Constitutional Court as these proposals were presented. The reduction of the requested majority, along with the change of the mode of selection and with the provision of accountability upon the quorum’s expiration, were considered a severe constitutional anomaly, along with the abrupt takeover of power by judges appointed by the government, that created a major power imbalance.
The Popular Party was opposed to the parliamentary examination of these amendments, presenting an “amparo”, an appeal, to the Constitutional Court. The appeal was accepted and the historic order was adopted on December 19, leading to the suspension of the two amendments immediately after their approval by the majority in the Congress of Deputies, which took place on December 15.
The appeal was considered admissible because of its constitutional relevance, social repercussions, and potential political consequences, recognizing the presence of an exceptional urgence of the situation with severe and irreparable damages to the appellants in the eventuality that the parliamentary process of the two amendments had continued.
The subordination of all public powers to the Constitution and to the legal system was reiterated, from which the Cortes Generales could certainly not exempt themselves, therefore assuring the importance and primacy of the Constitutional Court in its role as the guardian of the Constitution.
This intervention of the Constitutional Court was fundamental for the conservation of the Spanish legal system, as it, at least partially, eased the institutional crisis, thanks to the unblocking of negotiations concerning the latter two judges of the TC, regarding whom a compromise was reached.
Unfortunately, if one were to ask whether, at the end of this long-lasting process, the crisis were resolved, the answer would be... no! Nonetheless, an important step forward has been taken, yet, the problem of renewing the CGPJ persists, even though the solution seems to be closer.
The institutional crisis in Spain, therefore, continues because of the politicization of its judicial organs and the trend towards extreme judicializaciòn of political disputes, with consequential interference between the public powers.
Today, we can only wait and see what the conclusion of this crisis is going to be: will these circumstances lead to the definitive deterioration of the institutions and democracy of the Spanish state? And, finally, how will the EU respond to this emergency?
By: Riccardo Barni
Translated by: Emma Roberta Guercilena
Bibliography:
*: King Felipe IV speech on 24th December 2022
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The content of the articles only represents the ideas and opinions of the authors, not the ones of Bocconi University.
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