The Constitutional Court has turned its doctrine on challenges to shield itself from challenges after its recent renewal and from the attempt to remove judges Enrique Arnaldo and Concepción Espejel from pending sentences on the process. The pro-independence leaders questioned their impartiality and claimed their affinity with the PP, the party that proposed them to access the court. In the order that rejects those challenges – which would have left the court without a quorum – the Constitutional Court emphasizes that no one “can be disqualified as a judge because of their ideas.” “Ideological affinity does not in itself constitute a cause for disqualification.”
The resolution is a swerve when compared to others that have marked the history of the court, especially the one that caused the removal of former magistrate Pablo Pérez Tremps, who died last July, from the ruling of the Statute. The overturning is also evident with respect to the proceedings by which the abstentions of the magistrates Antonio Narváez and Cándido Conde-Pumpido for the rulings of the independence process were admitted. In both cases, the Constitutional Court considered its decision reasonable to guarantee the court’s appearance of impartiality.
Pérez Tremps was set aside in 2007 for having carried out scientific work for the Institute of Autonomous Studies, linked to the Generalitat, on “aspects related to foreign action and European participation” of the autonomous communities. The challenge – formulated by the PP – was agreed by six to five votes, and the decision to accept it provoked a wave of protests in the chairs of constitutional law throughout Spain. The Pérez Tremps study – the court said – constitutes “an objective element that reasonably allows the suspicion of the challenging party about impartiality.”
In the cases of Narváez and Conde-Pumpido, the Constitutional Court this year accepted the abstention of both for statements that according to the pro-independence leaders allowed to question their appearance of impartiality. Narváez compared the process with the coup d’état of 23-F, while Conde-Pumpido identified “the pretense of subverting the social and democratic state of law by fraudulently using the flag of democracy itself” as a worrying threat to representative democracy. The Constitutional Court supported these abstentions with the thesis that it was thus able to “reinforce the appearance and confidence in the impartiality of the court.”
The order on the cases of Arnaldo and Espejel approaches the challenges from a different perspective, to conclude that no judge can be disqualified for their ideas and argue that “it would not be constitutionally possible to remove the challenged magistrates, even if the attitudes that were being challenged were true. attributed to them ”. In Arnaldo’s case, such “attitudes” consisted of asking that “the full weight of the law” fall on the independence leaders, while at the same time signing the manifesto entitled Stop the coup, in which he stated that the Catalan Executive had not hesitated to “go beyond all the limits of legality and decency” to put at risk “coexistence and civil peace.” The Constitutional order concludes that “an ideological affinity is in no way a factor that diminishes the impartiality to judge” and that “it does not constitute by itself a cause for challenge.”
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George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.