The Supreme Court’s blocking of the amnesty dynamites the truce for the agreement of the Judicial Branch

The truce has lasted less than a week. The amnesty law and the way the Supreme Court interprets it, which once again changes the face of Congress – it already did so with the reform of sedition and embezzlement – has dynamited the atmosphere of a certain calm between the two major parties after the first major pact between Pedro Sánchez and Alberto Núñez Feijóo to renew the General Council of the Judiciary.

The battle could not be more evident. The PP is clinging to the Supreme Court, with an overwhelming conservative majority in the Criminal Chamber, which has blocked the application of the amnesty for the main pro-independence leaders. The progressives, for their part, trust the Constitutional Court, with a progressive majority since the last renewal. This body will have the last word in the face of the more than foreseeable appeals for protection by those affected against the decision of the Criminal Chamber of the Supreme Court, presided over by the magistrate Manuel Marchena.

However, the ways of showing support or suspicions towards these two courts are very different: while Feijóo harshly and openly attacked the Constitutional Court by openly doubting its impartiality and criticising its president, Cándido Conde Pumpido, the Government hinted yesterday that the Supreme Court is not interpreting the approved text of the amnesty law correctly. The Executive, despite this insinuation, remained cautious and insisted that it respects the decisions of the Supreme Court while demanding Feijóo to do the same with the Constitutional Court and withdraw his words about this body.

The morning started off strong. The PP, which has always been in agreement with the PSOE on the renewal of the Constitutional Court – the three conservative judges who have entered in the last three years are people trusted by this party, such as Enrique Arnaldo, Concepción Espejel and the last, José Mario Macías – has been casting doubts on this body for months because it now has a progressive majority.

The Government in power elects two members of the Constitutional Court every nine years, according to the Constitution. The other 10, up to 12, are usually chosen by agreement in Congress (4), the Senate (4) and the CGPJ (2). That is why the two members chosen by the Government are always the ones who break the tie, because it does not have to agree with anyone and always chooses two of its ideology. When the PP governed and it was time to renew these two members of the Government, in 2013, it changed the majority to conservative. Mariano Rajoy appointed Enrique López – who was later an advisor to the Government of Isabel Díaz Ayuso and before that a member of the CGPJ at the proposal of the PP – and Pedro González Trevijano. At that time, the court was presided over by Francisco Pérez de los Cobos, a member of the PP and up to date with the conservative party’s dues during his stay in the Constitutional Court. In 2004, José Luis Rodríguez Zapatero had chosen Pablo Pérez Tremps and Manuel Aragón Reyes. The latter would join the conservatives in the ruling on the Statute. In 2022, Pedro Sánchez chose two people very close to the PSOE: Juan Carlos Campo, former Minister of Justice, and Laura Díez, former senior official at Moncloa. This is the argument that Feijóo now uses to criticise the Constitutional Court, in addition to saying that Conde Pumpido was Attorney General with the PSOE. But between 2013 and 2022, while the Constitutional Court had a conservative majority with members very close to the PP — among them Andrés Ollero, who was a deputy for several legislatures — neither Feijóo nor anyone from his party questioned the impartiality of the Constitutional Court.

The Executive recalls that the PP did everything possible to prevent the Constitutional Court from being renewed in 2022, and managed to block this step for a few months. The PSOE then decided to swallow much-criticised toads, such as the election of Arnaldo, with its sights set on the definitive renewal that came in 2022 and which now marks a progressive majority of 7-5 for nine years, until the two that the Government is due to renew in 2031.

The Government was very harsh with Feijóo for these criticisms of the highest interpreter of the Constitution. The spokesperson, Pilar Alegría, questioned, cautiously, but with a clear underlying message, the decision of the Supreme Court not to apply the amnesty thanks to a novel interpretation of embezzlement, understanding that there was enrichment because the leaders of the process They saved the money they would have had to put out of their own pockets to organize the referendum that the Constitutional Court declared illegal. “The Government wants to say that the law was approved by an absolute majority. The text is very clear and the will of the legislator is as clear as the text of the law itself. It is up to the judges to apply it, but the object and objective of the law is very clear. We are aware of the positive effects of the amnesty law. What has to happen is that the judges apply the law,” he concluded as a clear message of rejection to the Supreme Court.

Just before Alegría intervened, the second vice president, Yolanda Díaz, wanted to get into the matter, even though there was no direct question, because she wanted to make clear Sumar’s position, which is tougher on judges and the PP than the PSOE’s. Díaz was very critical of Macías, the PP candidate for the Constitutional Court, assumed by the PSOE but also by Sumar, which will vote for him. “That the PP criticizes the Constitutional Court when it has appointed Mr. Macías for that court disqualifies itself,” said Díaz. And she was also critical of the Supreme Court. “Strange things happen in our country. We have seen how the CGPJ issued reports for which it had no jurisdiction, or issued a report on a law [la de amnistía] “that did not exist yet. If we came from a far away country and saw what is happening here we would be surprised. It is a mockery that we have had the CGPJ paralyzed for five years and Mr. Macías had something to do with all this,” he insisted.

Díaz also pointed out that she argues that the package for democratic regeneration that the Government is preparing should also include issues relating to justice, not just the media. “We must change access to the highest levels of the State. Furthermore, Rajoy eliminated the civil liability of judges. It is the only body that does not account for what it does, even though we see processes that are biased as they are. Their professional performance has no consequences. In any other profession they do. We will have to have a debate on responsibility. When we talk about democratising our country we talk about this, although it will be the president who makes the announcements on the 17th,” she concluded, leaving that door open. The Government’s discontent with the Supreme Court’s decision is thus very evident, whether expressed more or less emphatically – the socialist sector insisted that the opinion of the Executive is expressed by the spokesperson and not the second vice-president – and now the Government is confident that both the Constitutional Court and European justice, if anyone appeals to it, will agree with the Executive and fully enforce the amnesty law in a few months.

_