Critical Analysis of appointment mechanisms of the Constitutional Court and the General Council of the Judiciary in Spain

Abstract

To confer indirect democratic legitimacy on bodies like Constitutional Court and General Council of the Judiciary, that are defined as counter-majoritarian is the main aim of the regulations that govern them. With this objective in mind, the regulatory framework for the parliamentary appointment of constitutionally relevant bodies revolves around three fundamental elements: on the one hand, to obtain the qualified support of the political groups represented in the legislative assemblies. On the other hand, the selection of candidates with the best technical qualifications and the most outstanding professional track record. Likewise, as a third axis, the duration of the terms of office is separated from that of the parliamentary legislature, exceeding it in length. In this way, the term of office is not linked to electoral cycles. The study of the Spanish case reveals a problematic diagnosis, since the application of the established legal provisions does not conform to the guidelines that inspire them. The reality is that, especially in the most recent temporary phase, a context of a pathological nature has prevailed, in which the provisions in force have undergone a profound adulteration of their meaning. The prevalence of a partisan system of quotas in the nomination of candidates for the posts in question, reciprocally accepted by the responsible political actors, substantially limits the effects of parliamentary intervention in the selection processes. In fact, the latter is relegated to an essentially formal field, being configured as a mere formality. Along a similar line of alteration of its constitutional purpose, the duration of mandates is not complied with, without renewal within the established time, which results in a recurrent scenario of generalised extensions. Faced with such a state of affairs, serious reflection is needed to help recover the guiding will of constitutional norms. Reversing the terms of the deep-rooted pathology that characterises the Spanish system in the field under study, however, would require a radical transformation of the modus operandi assumed by the political parties. Aware of the difficulty of the proposed task and taking parliamentary regulations as a reference point, we formulate a series of reform proposals whose implementation would contribute to redressing the negative institutional context.