The Constitutional Court has closed the course until next September, with important judgments yet to be deliberated and great uncertainty about when and how it can dictate them, and is waiting for its renewal to be unlocked. In any case, this scenario is consistent with the fact that there is a generalized perception of the end of the stage in the court itself. The last judicial plenary session should have taken place last Thursday the 19th, but was suspended because both the President Pedro González-Trevijano, the Vice President Juan Antonio Xiol and the Judge Enrique Arnaldo were affected by Covid, a disease from which they were ill they have already recovered. .
The temporary cessation of judicial activity has left in the drawer relevant judgments such as that on abortion rights, whose draft judgments, which had been prepared for months, were not fully executed in order not to reopen wounds in the Constitutional Court. Because the text, which the current conservative majority would support, would in no case be supported by the progressive minority, which would lead the court to a new episode of division and great tension.
The deviations result from the fact that the judgment would confirm the right to a time limit, but would contain precautionary clauses such as the establishment of a reflection period for women who wish to have an abortion. The requirement of parental consent for minors under the age of 18 who would have the same will to have an abortion would persist even after the decision, as this point has not been challenged since it came into force as a result of a legislative reform passed in 2014 by the government of Mariano Rajoy (PP) in 2015. None of these measures have the support of the progressive judges, who prefer that the appeal of the PP be resolved when the court has been renewed and the internal balances have changed in favor of this sector, which would then have a majority by seven to five against the Conservatives.
The sensation of the end of the cycle is expressed in the fact that both sections of the Constitutional Court share the desire that when summer returns, the provisions of the new law passed in July can come into force, so that the General Council of the Judiciary recovers its capacity , to appoint the two judges of the surety court who correspond to the appointment. For its part, the government intends to appoint the other two judges who would complete this renewal in September, despite the Council’s difficulties and failure to agree on the appointments it should make within the statutory deadline. This deadline ends on September 13th. And the Senate must appoint a replacement for conservative Justice Alfredo Montoya, who resigned this Wednesday due to ill health following the stroke he suffered in August last year without having been able to rejoin the court since.
Both progressive sector and conservative bloc judges share the hope that government and judiciary appointments can be coordinated, knowing that if this were not the case, the executive would continue to fulfill its role and two new members of the court to be appointed. If this situation is reached and only the two judges promoted by the executive are appointed, a new conflict would arise in the Constitutional Court as there are members of the two sectors of the Court who consider a partial renewal to be unconstitutional.
This could result in the Constitution rejecting the additions until they can be made along with those of the Council, in line with the Constitution’s provision that renewals must be made “by a third party”. That is, each of them implies the entry of four new magistrates, and not just two.
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Notwithstanding the legal debate on the issue, both court branches share the view that only the four planned changes – including those of the President and Vice President – will allow the Constitutional Court to regain its speed of travel from September. In short, the forthcoming extension is seen in the Guarantee Body itself as the necessary budget for the court to be able to resolve, without major tensions, the complaint that the PP filed against the abortion law more than 12 years ago, in June 2010 .
In addition to this appointment, some of the most important laws of the current legislature are also awaiting a decision, which the PP and Vox are contesting. These include the Euthanasia Law and the Celáa Law education reform, as well as numerous legislative decrees passed during the tenure of the current coalition government. The conservative majority of the court has already overturned some of these decrees on the grounds that they were not urgent – as required by law – given the government’s view that the measures they contained could not be postponed, for example in the face of the pandemic. Important appeals are also pending in parliamentary matters, such as that against the loss of the seat of former Podemos MP Alberto Rodríguez or against the alternative oaths or official promises made by numerous MPs at the beginning of the year of the legislature. .
Under normal circumstances, most of the issues pending decision could have been resolved for many months, but the Constitutional Court has postponed its decisions based on a double consideration. On the one hand, he wanted to avoid the kind of confrontation that caused the verdict a year ago that overturned the declaration of a state of alert against the pandemic as unconstitutional. On the other hand, the court assumes that in the current situation, with a mandate concluded since June 12, any decision on the most politically sensitive issues will be considered a consequence of non-compliance with the constitutional provisions on the upcoming renewal. .
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