Spain: Top court puts brakes on govt in unprecedented move

A man walks in front of the Constitutional Court in Madrid, Spain, on Monday Dec. 19, 2022. (Fernando Sanchez/Europa Press via AP)

MADRID (AP) — Spain’s top court has handed down a ruling preventing the upper house of Parliament from debating and voting on an amendment to the country’s penal code — an unprecedented interference in the legislature that foreshadows potential political turmoil for the leftist coalition government heading into election year.

The Constitutional Court ended a nine-hour debate Monday by accepting an appeal by the main right-wing opposition Popular Party to halt the passage through Parliament of a reform on how judges are elected to certain judicial bodies — including the Constitutional Court itself.

Socialist Prime Minister Pedro Sánchez lashed out at the Popular Party, saying the decision was unprecedented in 44 years of Spanish democracy and also in European terms as it has paralyzed Parliament and affected the renewal of the Constitutional Court, which is demanded by the country’s Constitution.

He said the Popular Party’s “aim was to retain by spurious means power that the citizens denied them in elections.”

He called for “serenity” and promised the government would work to break the judicial deadlock “with whatever measures were necessary.”

Critics see the Popular Party appeal as an attack on the Parliament’s sovereignty and a move by it to avoid losing influence in the court. The Popular Party, in turn, accused the government of trying to take control of the court in an underhand manner by including the reform as an amendment in an express package that would have limited debate on the matter.

The decision, the first of its type in Spain’s four-decade-old democracy, could have untold effects on future legislation procedures and possibly cause Sánchez headaches as he seeks reelection in 2023.

The Constitutional Court frequently accepts appeals to stall and study legislation that has already been passed. It currently has appeals by the Popular Party against several key laws on its books, including on abortion, euthanasia and education. But never had it intervened in the legislative process before a bill became law.

At stake is the perceived political alignment of the country’s judiciary bodies, although nominally they are independent and neutral.

Both the top court and General Council of the Judiciary, which supervises judges, have long been seen as having a conservative tilt. The renewal of the council has been deadlocked for the past four years due to a lack of consensus between the Socialist Party and the Popular Party. Both the ruling and main opposition parties, as well as Parliament, have a say in naming judges.

The council’s stalemate, in turn, affects the periodic replacement of judges on the Constitutional Court as it gets to select two judges to the court, but the council has so far not agreed on its selection.

That deadlock has kept the council and the Constitutional Court in the hands of majorities considered to be conservative.

The two leftist parties in government decided to push the judicial reform as a means of breaking the deadlock in the appointment of new members to judicial bodies, but the Popular Party balked at the idea.

In the case of the Constitutional Court, the terms in office of four of its judges, including its president, expired months ago and two of them stood to lose their posts if replacements were agreed on under the reform.

The reform was debated and passed by an ample majority in the lower house last week and had due to be approved with ease by the upper house — the Senate — on Thursday.

Popular Party president, Alberto Núñez Feijóo, celebrated the victory while trying to downplay its impact since the reform sought by the government can still be brought to the Parliament in the form of an ordinary bill.

“Has the Constitutional Court stopped these legal reforms from being voted on by the houses of Parliament? Clearly not. What it said was that the votes must be carried out according to the Constitution,” he said.

While experts are divided, many agree that the court’s decision may set a worrying precedent.

“I think this is serious for two reasons,” Xavier Arbós, professor of constitutional law at the University of Barcelona, told The Associated Press.

“The role of the Constitutional Court, which could be compared with the Supreme Court in the United States, should stop at the door of the parliament. It should consider that which emerges from the parliament, because if it enters in the making of laws it is distorting the separation of powers,” Arbós said. “(But) the worst outcome of this decision and its context is the perceived lack of impartiality by the court.”