The magistrate of the Constitutional Court José María Macías asked the president, Cándido Conde-Pumpido, not to “interrupt” the resolution of the challenges presented against them both and against the magistrate Laura Díez within the framework of the procedure on the amnesty law . According to him, the court must decide jointly and without the participation of any of the parties involved.
The successive and individualized examination of each challenge, as Conde-Pumpido decided, creates – Macías warns – “the appearance” that is intended to be configured. an “à la carte” TC to resolve the most politically compromised issue for the government: the amnesty of those responsible for the Catalan “trial”.
Condé-Pumpido included the debate on the challenge presented by the PP against him on the agenda of the plenary session of the TC scheduled for the next 8 day.
He only presented his challenge, not that of Laura Díez (also contested by the PP) nor that of Mario Macias, contested by the public prosecutor.
At the same time, Condé-Pumpido sent members of the TC a internal communication in which he determines who will decide on his recusal, which has never been done before the Constitutional Court.
In this communication, the president indicates that “they will not intervene in the deliberation of the said matter.” [su recusación por el PP] the challenged magistrates Conde-Pumpido, Díez Bueso and Macías Castaño nor the abstained magistrate Campo Moreno”.
In this way, the TC will be composed of eight members who will decide whether or not Conde-Pumpido must participate in the decisions taken regarding the constitutionality of the amnesty of the Catalan “process”.
Unanimous rejection
Four of these eight justices are progressive and four others are conservative. But the vice president, Inmaculada Montalbán, who will preside in the absence of Conde-Pumpido, will not be decisive because the challenge launched by the PP against the president of the TC He doesn’t have the support of progressive judges, but he doesn’t have the support of conservatives either..
There is a general opinion that The reason given by the PP for trying to dismiss the president of the court is unfounded: his participation in the amnesty processes cannot be denied given that three years ago, Conde-Pumpido decided to withdraw from the amparo appeals filed by those prosecuted by the Supreme Court in the framework of the “trials », trials whose aim was not this. to do with the amnesty law.
Since the challenges of Conde-Pumpido, Díez and Macías are not debated together, once that of the first Conde-Pumpido is excluded, Conde-Pumpido will be able to intervene in the resolution of those that affect the other two challengers. And once Laura Díez’s decision has been rejected, as expected, it will return to the plenary session, so that a progressive majority is assured of considering the recusal of Macías and expel him from the debate of the TC on amnesty.
“Asymmetric” treatment
In the letter he sent yesterday to the President of the Constitutional Court, José María Macías expresses his “rejection” and his “concern” regarding the “splitting” of the decision on appeals.
“It follows an asymmetry of the criterion”, he asserts, “of which the result is not at all neutral: according to the sorting criteria which [Conde-Pumpido] has decided to apply, the four judges challenged and abstained will be logically and correctly excluded from participation in your challenge, but if it is rejected, it seems that you will be able to participate in a subsequent plenary session during which the challenge of The Judge Díaz has made up his mind and it’s me.”
“If, in addition to this, you subsequently decide to divide the decision regarding Judge Díaz’s challenges and mine, anticipating his, you and Judge Díaz will participate in my challenge, but I will not participate in yours nor to that of Judge Díaz,” he adds.
For this magistrate, the “splitting” of challenges is contrary to the Organic Law of the Judiciary, of complementary application to the TC in matters of challenges.
“When several magistrates are challenged, the incident is decided by a Chamber in which none of the challenged magistrates participate, so that they do not intervene in the decision of their own challenge or in that of others who would also have been challenged. “, he emphasizes.
This rule is the one that was followed in the TC “in the closest precedents”, he said in reference to the challenges of Juan Carlos Campo and Laura Díez in issues that affect the government.
And it is also the same criterion applied in past challenges, with the exception of the one in which the quorum required by law for the formation of the court was at stake, which is no longer the case today.
For Macías, given the “intense social relevance” of the processes linked to the amnesty law, the criterion decided by the president “can generate the undesirable appearance of forming à la carte plenary sessions for ensure a certain composition” of the court.
This appearance “increases”, he believes, by the ‘unusual behavior’ from state attorney general’s officewho, without even waiting for the PP’s appeal to be admitted for processing, challenged Macías.
“Fraud of the law”
In this way, splitting the resolution of challenges “would establish the nature and bring to fruition all its effects of what could be a fraud of the law aimed precisely at causing asymmetry what I reject. »
For Judge Macías, “in a case with simply historical profiles, I consider it necessary to exercise extreme caution so as not to facilitate the support of speeches which claim that the formation of the Court is due to the exclusion of certain opinions or legal conceptions, not because they were expressed in the past, which, from the point of view of the doctrine of our court, is legitimate and irrelevant, but simply because he had them, that would harm the democratic conception of political pluralism which is the basis of the formula. for the selection of judges of this Court is contained in our Constitution.
This appearance “would harm the credit of the court”, considers Macías, who asks Conde-Pumpido that in addition to the challenge directed against him, “he also includes the challenges that have been presented against Judge Díaz and me – same, in which none of the challenged magistrates nor the magistrate already abstained must participate.
