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Consensus Constitution and renewal of constitutional bodies

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The Constitution, it is often said, is the consensual constitution. Consensus is shown not only at the time of its approval but also in the complex procedure to proceed with its reform, where a reinforced majority is required for many of the subjects, some of which have not resisted the passage of time badly. But the procedure for appointing the members of the constitutional bodies is also determined by consensus.

In fact, it is common in the constitutional text to require a reinforced absolute majority to appoint the members of the constitutional bodies. The same is the case with the members of the General Council of Judges (3/5, article 122), or with the Magistrates of the Constitutional Court elected by the Congress or the Senate (3/5, article 159). Even when not included in the Constitution, equivalent majorities were chosen for the Ombudsman (Article 2 of Organic Law 3/1981, of April 6, regarding the Ombudsman) or in article 30 thereof the Organic Law 2/1982, on 12 May, from the Court of Accounts. Outside the constitutional bodies, a similar provision is included in the Article 11 of Law 17/2006, of June 5, regarding state-owned radio and television.

A problem arose with the admirable desire for consensus, the purpose of which is that bodies are not taken over by the majority party.

In fact, the electorate, in a very innocent way, thought that those consensuses could always be reached and they did not express resolution mechanisms against the blockade, which functioned precisely to achieve the consensus. So much they established cascading consensusas in the case of the Constitutional Court, in case section 159.3 he pointed out that the renewal of the Government is apparently related to the General Council of Judges, which makes it impossible to renew the former due to the lack of renewal of the Government.

It is a labyrinthine problem because there is no predetermined rule. In fact there is no chance to prove it. The only solution would be to formulate it through the figure, well known in German constitutional law, of constitutional mutation, to guarantee the effectiveness of the constitutional rules. But it doesn’t seem right now, in an election year and with the political environment like ours, to allow regulations in this regard. In fact, the only rule that would be valid would be to resort to a pure majority, completed by the decline of the mandate at a certain moment, as happens in the Italian Constitution, when there are no active magistrates, but with the all functions. of the job.

Reality shows that we should go in that direction. In the last 20 years (since the election of the Constitutional Court Magistrates in 2001) the deadlines have not been met. In fact, it can be said that consensus comes when one of the two majority parties, the Popular Party, wants to. The other person was always willing.

The external causes are tricks to me and for that reason there is no need to mention them because they change with the direction of the weather vane. On the other hand, there are the hidden reasons and since they are only assumptions (although they have shades of certainty) they are not worth remembering either.

But it is necessary to draw attention to the fact that the unwillingness to sit down to negotiate who meets the requirements to be a member of the General Council of Judges or a Magistrate of the Constitutional Court (there is a vacancy, the one that came for the resignation of Alfredo Montoya for health reasons, which must be covered by the Senate) or as happened in the past with the Ombudsman, it leaves the Constitution unprotected.

So it is a previous, much more important problem (because it affects the basic norm of the legal system and because it affects the clauses of article 1.1 of the rule of law and the democratic state) and, therefore, more complicated to solve since the will is missing and the blockade has no legal consequences. Because the only thing that is clear is that it is not acceptable not to put a solution on the table or not to say to everything that it is not my thing. That is also a constitutional violation.

It is the only solution provided for in the Constitution for these blocking situations the collection in section 56: “The King is the Head of State, a symbol of his unity and permanence, it arbitrates and moderates the regular functioning of institutions”. From the point of view of the agreement, it was accepted that an indication from the King was sufficient to achieve renewal. Will it work now?

In the event that the renewal would be blocked for more than four years, the implementation of this arbitration and moderation function would be necessary to ensure, sooner rather than later, that the General Council of Judges can be renewed. And, in my opinion, not even a hint is taken from the performance of the erosion of institutionsas in the speech of December 24, 2022, because the problem is too serious, it is entrenched, there is no short-term solution and the basic justice institutions are functioning abnormally.

Constitutionalism and constitutional patriotism are the first point of the manual: respect for the functioning of basic state agencies. When this does not happen, when the decision-making capacity is stolen for reasons of interest and when decision-making is delayed, it is going against what is shown in the Constitution. Beyond the specific legal sanction, which has already been seen that it does not have a name because of constitutional intelligence.

You, reader, know exactly what it is.

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