The Justice goes through its worst crisis of credibility in 40 years of democracy. A crisis that advances on several fronts. First, on the social response by making controversial, as the sentence of the Herd or the change of opinion of the Supreme Court in the tax of mortgages. Second, for the corporate, with the strike that half of the judges and prosecutors supported to demand improvements in working conditions. And, third, on the institutional after the customary exchange of vowels between PP and PSOE as if they were trading cards —with the participation in the background of the main associations, judicial—, was this year more patent than ever after discovering who would be the president of the General Council of Judicial Power (CGPJ) before even knowing the names of those who had elected him.
citizens attend a fire accentuated in the last week by the appointment of a parliamentary of the 20 members of the CGPJ, which leads to suspicion of their politicization —sometimes, also by the profile of the people named—. A few misgivings about the role government that end up penetrating the court, as has occurred with the appointment of Manuel Marchena to occupy the presidency of the Judiciary, despite the fact that it finally gave up.
The CGPJ, who in addition to judicial appointments is responsible for appointing two of the 12 judges of the Constitutional Court, was provided for in the basic Law to disempower the Government from any intervention in the Justice, according to remember Pablo Lucas Murillo, judge of the Supreme, in the book Comment a Minimum to the Constitution. The Constitution states that 8 of the 20 vowels, appointed by the Congress and the Senate from among jurists of recognised competence. And the other 12 will be chosen “among judges and magistrates of all categories”.
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In 1980, the organic law established that the 12 vowels were to be appointed in a vote between the judges themselves and the judges. However, in 1985, the absolute majority of the PSOE changed the mode and set the that has been maintained until today: the 20 vowels are chosen in equal parts by the two Chambers. The system supported a year after the constitution, which warned of a risk that the CGPJ would end up becoming a reflection of parliamentary struggle.
This prediction, for parties such as Citizens, has not done more to be confirmed. Bipartisanship would have perverted a model designed to make effective the mandate of article 117 of the Constitution that ensures that justice emanates from the people. From 2016, the four associations judicial advocate the return to the model of direct election of the 12 vowels judicial. This idea is supported by Albert Rivera, and since the resignation of Marchena, and also by the PP.
To interpret the pros and cons of the current model it is useful to turn to the parliamentary discussions of the drafting of the Organic Law of the Judiciary, 1985. The amendment initial that put the choice of the vowels in the hands of the parliament -the most important and controversial of the draft law – the registered the deputy of Euskadiko Ezkerra and lawyer Juan María Bandrés, who died in 2011. Bandrés was noted that this option was due to “a conception more progressive society”, and added: “Fortunately, the political pervades all public life and is already well to treat the policy as something polluting and dedication to politics as a Casinovale perversion seriously dangerous, as a vice that must be avoided carefully.”
Bandrés denied that the parliamentary election of the board members violated the independence of the judiciary. “The Judiciary is a power that is not concentrated and, yes spread, which is exercised by each judge many times a day, when that judge or this court with a sense of serenity to your own conscience, no other judge superior to him which his conscience, the resolution that it considers just.” And he added: “to Say that a particular Council of the Judiciary or a particular way of choosing it may compromise the independence, is as much as to say that the General Council of the Judiciary, whatever its composition, it exerts pressure on judges and magistrates. Gentlemen, this is very serious, because it would be tantamount to asserting that the directors -of these, the ones that come, all that may be – and the judges are transgressors collective”.
On the other side, the spokesman of the people’s Alliance, José María Ruiz-Gallardón, whose party challenged the reform before the Constitutional, considered that the parliamentary election opened the door “to a total and absolute control of other constitutional bodies that they should keep the independence”. The spokesman of the Minority Catalan, Josep Maria Trias de Bes, put rhetorically, the finger in the wound: “I do Not dare to think that you have come to the conclusion that as the bench -as they say – is conservative in 80 percent want to change to a basis of an Organic Law, that under the paradigm of popular sovereignty is more faithful or more addicted to that than the minister [Fernando Ledesma] called the other day new State”.
In 1985, the profile sociological of the judicial career was very different from the present: the Spanish judge means was 50 years old, joined the body in full franco, was a practicing catholic and 90% were male. The race was composed of about 1,800 members -today there are more than 5,500-mostly affiliated to the Professional Association of the Magistracy, which had a conservative profile quite more pronounced than at present. One out of every four justices was the son of jurists. In the previous four years had entered the race 500 judges that, coupled with the forced retirement of other 500 with the approval of the Organic Law of the Judiciary, gave a great first roll-over sociological to the Judiciary after the death of the dictator.
This structure conservative of the judiciary weighed -although no one would admit specifically – to change the election of the CGPJ. At present, although it remains in essence the procedure of access to the race, with an opposition with the great weight of the memorístico, and still the sentence that the judiciary is a body conservative by nature, only about thirty judges in active agreed to the charge before the death of Franco and women are already a majority in the judicial bodies.
The current reform of the Organic Law of the Judiciary related to the General Council of the Judicial Power, in parliamentary procedure, incorporates a few new developments on the governing body. It was planned to reduce to two days the time period for the new board members choose to your president and the possibility that four of the twenty members elected on a mandate may be renewed for the following. However, the parliamentary election follows in the text. And the fire is not extinguished.
The Law to the Constitutional Reform of 2005 was an important step toward greater judicial independence in the United Kingdom. Created the figure of the Supreme Court and snatched it from the House of Lords the exercise of the highest judicial instance. But above all, he ended up with the archaic mechanism by which the Crown appointed judges that they should get then the approval of the Lord Chancellor (Minister of Justice). It created a new institution, the Commission for Judicial Appointments (the Judicial Appointments Commission, JAC, in its acronym in English), of independent nature, though under the allegiance formally to the ministry of Justice. It is formed by 15 members. 12 of them are elected through a public contest, open, transparent, and based solely on the merits of the candidates. The remaining three are nominated by the Judicial Council (two judges, senior high court). Among the functions of the JAC is the appointment of judges to the High Court and other judicial instances, and the support for the selection of other positions connected with the Administration of the court. They are obliged, legally, to “choose candidates based solely on their merit, select people of good character and promote diversity in the selection of the different posts”. It is not surprising that different judges, mostly from the legal profession or the academic world, have their political leanings private, but it is to be understood that they should not ascribe to any political party. In the Uk, the independence of the judiciary is firmly respected and accepted.