The first battle over the amnesty in the Constitutional Court is deciding which magistrates will rule on the law. Dozens of challenges await their turn while the magistrates outline, week after week, the composition of the plenary session that will study the pardon rule of the process. After the voluntary abstention of former minister Juan Carlos Campo, the court has rejected the request of the Popular Party and its autonomous communities to remove two other members of the progressive sector, which maintains its majority. In recent days, the challenge that the State Attorney’s Office presented against José María Macías as rapporteur of the PP appeal has also been rejected due to formal defects, although another similar request from the Prosecutor’s Office is pending resolution.
The full court of guarantees has around twenty appeals and unconstitutionality issues on the table against this law. Some come from courts such as the Supreme Court, but most of these challenges have been filed by the Popular Party or the autonomous communities where it governs, in addition to Castilla-La Mancha. And many of these resources from governments and regional assemblies included the recusal of three magistrates from the progressive sector: Juan Carlos Campo, Laura Díez and Cándido Conde-Pumpido.
More than fifty petitions that, if successful as Alberto Núñez Feijóo’s party intended, would have changed the arithmetic of the Constitutional Court. With a majority of seven progressive judges compared to a minority of five conservatives, the complete success of the challenges would have given way to a progressive minority to address this issue. Four progressives and five conservatives to analyze one of the most politically important regulations of the last decade.
The recusal of the former Minister of Justice did not even have to be processed because he himself voluntarily withdrew from the deliberations for having participated in legislative milestones of the process such as the pardons for its leaders. But that first movement, traditionally peaceful when a magistrate abstains because he understands that he should not participate in a sentence, revealed an internal division of the court that sources from the organization had been anticipating for weeks: six magistrates voted in favor of abstention, five in against and three members of the conservative sector presented dissenting votes.
That first fight had to do with substance but also with form: who should make this decision. The conservative sector was betting on excluding those who were challenged from the debate, unlike what happened at the end of 2022, when the conservatives Pedro González-Trevijano and Antonio Narváez rejected their own challenge in the PP lawsuit that prevented a vote in the Senate. In the amnesty, the first procedure ended with the rejection of those claims that have been maintained throughout the rest of the challenges that were not successful.
The PP sought to remove President Cándido Conde-Pumpido and Laura Díez from the deliberations and sentences on the amnesty. The first for having voluntarily abstained from appeals related to the criminal convictions of the process and the second for having worked in the Ministry of the Presidency and for her alleged closeness to the PSC. Both have been rejected and in some cases unanimously as to the substance of the matter. The conservative sector of the plenary session also understands that neither of the two should have been separated, although they maintain that the decision should have been made without the interested parties themselves.
The doubt of José María Macías
There are no more challenges pending deliberation regarding the progressive sector of the Constitutional Court and the only decision to be made has to do with José María Macías, former member of the General Council of the Judiciary and the latest addition to the plenary session to make up for Alfredo’s absence due to health reasons. Montoya. Both the Prosecutor’s Office and the State Attorney’s Office have suggested that he should step aside because during his time as a member of the governing body of judges he actively participated in the opposition of a group of conservative members to the law.
The recusal of the Legal Profession was unanimously rejected by conservatives and progressives for having been raised too soon within the PP appeal, for which he will be the speaker. The court understands that it was presented before the appeal was even admitted for processing and that this made its allegations fail.
The Prosecutor’s Office’s complaint against his presence in the deliberations is still pending resolution. A challenge presented in the process related to the question of unconstitutionality of the Supreme Court, which has been admitted for processing for several weeks. Macías’ intention is not to depart from the deliberations just as Concepción Espejel was not removed from the ruling on the abortion law for having reported against the law when she was a member, although she asked for it herself.
The Prosecutor’s Office understands that Macías should not be part of the debate because he did not limit himself to signing a report or issuing an opinion contrary to the law – something he did explicitly and in numerous interviews and public statements – but rather he had “direct participation” in “official actions” against the norm. He led a group of members who actively opposed, among other Government measures, this amnesty law, forcing the issuance of a contrary report that had not been initially requested. Participating in that report, according to the Prosecutor’s Office, was “an act genuinely typical of the performance of the public office that he held” and with which he “directly participated in the matter that is the subject of the lawsuit or case.” Macías’s participation was not something “purely formal,” says the Prosecutor’s Office, but rather it is “obvious.”
Macías’s vote is worth the same as that of the rest of his colleagues, but his role in resource management will be key in the coming months. He has been appointed rapporteur for some of the rulings on the amnesty, among them those of the appeal considered the most relevant: that of the Popular Party.
Several challenges to the rule have already been admitted for processing, for example the question of unconstitutionality of the Criminal Chamber of the Supreme Court, but a good part of the appeals presented by the autonomous communities and regional parliaments are still pending to pass this first filter .
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