The Government, through the Public Prosecutor’s Office, filed a complaint with the Constitutional Court on Friday. a total of 20 challenges against Judge José María Macías, recently incorporated into the TC on the proposal of the Popular Party, so that he does not intervene in the continuation of the controversial amnesty law.
The appointment of Macías to the TC was part of the agreement reached last June between the government and the PP to renew the General Council of the Judiciary. The Executive now intends to remove this key magistrate from the most compromising case for Pedro Sánchez that the Constitutional Court has in its hands.
The Public Ministry challenged Macías in the four questions of unconstitutionality raised by the Criminal Chamber of the Supreme Court and by the High Court of Justice of Catalonia against the amnesty of responsibilities derived from the process of Catalan sovereignty.
The other 16 challenges seek to separate it from the resolution of the appeal of unconstitutionality filed by the PP against the amnesty “trial” – an appeal whose presentation, moreover, falls to Macías, who would be in charge of proposing its approval or rejection. – and the challenges presented by 15 governments or regional parliaments controlled by the Popular Party.
These 20 challenges they add to the six filed against Macías by former Catalan president Carles Puigdemont in the context of the amparo appeals pending judgment and the challenge signed by Álvaro García Ortiz, the first one promoted by a public prosecutor against a member of the Constitutional Court.
The new judge of the TC is already accumulating 27 initiatives to separate him from any substantive decision on the amnesty, a total legal offensive between the government, the prosecution and the former Catalan president and which will put the Constitutional Court to the test, since the composition is at stake. The court will have to continue the divisive amnesty law.
Although the progressive sector of the TC is composed of seven members, the acceptance of Juan Carlos Campo’s abstention on the 11th reduced to six the magistrates assigned to a starting position in favor of amnesty. If this forecast were confirmed, it would be a very close result, six votes to five, since the conservative sector now has one more magistrate thanks to the incorporation of Macías.
The departure of this judge through the estimation of the stakes would compensate for the loss of Campo and would allow a slightly more flexible outcome in favor of the controversial law.
War of Recusation
The plenary session of the TC called for tomorrow will not see the challenges but will approve the abstention of Campo in the appeal of unconstitutionality of the PP, in the challenges presented by 15 communities and autonomous assemblies and in the three questions promoted by the Superior Court of Catalonia. This is to extend to these trials the abstention already accepted in the question of unconstitutionality of the Supreme Court.
The PP, for its part, challenged the president of the court, Cándido Conde-Pumpido and judges Juan Carlos Campo and Laura Díez.
The “popular” party presented a memorandum on Friday so that the TC accepts the “immediate dismissal” of the three people contested for everything related to the appeal of unconstitutionality filed by the PP.
The letter is directed particularly against Conde-Pumpido, because the president of the Constitutional Court appears on the agenda of the plenary session as rapporteur of the orders that will remove Campo from the 19 appeals and questions mentioned.
However, it happens that the first of these resources is that of the PP, whose spokesperson is Macías. Given that it is an abstention of the former Minister of Justice (and not a recusal, who has an autonomous turn to speak), the law indicates that the rapporteur of an appeal is the rapporteur of the substance and all its incidents.
In this way, according to some sources of the TC, Macías should be the rapporteur for the abstention of Campo, while he, Conde-Pumpido and Díez should not intervene in anything related to the appeal of unconstitutionality of the PP. The majority of the court, in this hypothesis, would be in the hands of the conservatives by five votes to four.
Who solves
The challenges promoted on Friday by the Public Ministry – and which, unlike that of the Attorney General, affect the PP’s appeal – mean that this scenario is declining because Macías himself is expected to step down while his challenge is resolved.
The current TC President argued in a dissenting vote in December 2022 that, in accordance with the jurisprudence and practice of the court, from the debate on the admission to the processing of a challenge “judges whose impartiality is in doubt must always be excluded”.
“The person who has been challenged,” Conde-Pumpido then added, “does not intervene in the deliberation and decision on the admission of the challenge, with one exception“.
This exception which allows the challenged magistrates to be part of the tribunal which decides on their own challenge is that “the quorum necessary to decide is affected”, a quorum of eight magistrates.
So far, the total number of challenges, which exceeds fifty, affects four judges, so there is still a quorum to resolve, without the challenged, whether or not the incidents are admitted for processing.
