Judges get dragged into Spain’s toxic politics

MADRID — Spain’s latest political turmoil is extending a years-long battle between the two main parties over appointments of top judges. 

In recent months, Spain’s Prime Minister Pedro Sánchez secured a new term by offering an amnesty deal to Catalan separatists in exchange for political support. This was met by outrage from the right-wing opposition, many in the judiciary and prominent lawyers, who have warned such a move could be seen as unconstitutional. Now, this antagonism is feeding into a paralysis in the judiciary’s governing body.

For years, Sánchez’s governing Socialist Workers’ Party (PSOE) and the Popular Party (PP) clashed over judicial appointments and reform. The two have vied to control the judicial authority and as a result, the entire judiciary, with appointed judges labeled “conservative” or “progressive,” and their political allegiance public knowledge.

The PP, in particular, has delayed efforts to reach a deal on new appointments, demonstrating the deteriorating relationship in the months since Sanchez’s offer of Catalan amnesty. The judiciary has become their political battleground.

Critics say conservative leaders are fearful of losing control of the Supreme Court, where conservative-backed judges dominate.

PP leader Alberto Núñez Feijóo, who could not gather enough support to govern despite winning July’s election, has continued to thwart attempts by Sánchez to reach a deal and instead has called for a reform of laws governing appointments.  

This reflects the Popular Party’s broader political agenda, said Lluís Orriols, a political scientist at Madrid’s Carlos III University.

“The [Popular Party] hasn’t been accusing the government of not managing the economy or of being corrupt or inefficient, its main angle of attack is to accuse the government of eroding the rule of law,” he said. 

Terms of judges sitting on Spain’s General Council of the Judiciary, expired five years ago and they remain on the council until the government can appoint new judges. The council, which appoints top judges, has been unable to appoint 23 out of 79 Supreme Court positions that have opened up due to retirements and deaths during the half-decade hiatus.

The PSOE and PP have not managed to secure the three-fifths support needed from parliament to make new appointments. Currently, Spain’s highest judicial authority, dominated by judges appointed by the PP in 2013 when it was in power, operates on an interim basis, drawing concern from the EU.

European Commissioner for Justice Didier Reynders recently described new appointments on Spain’s General Council of the Judiciary as “a matter of priority.”

Such is the entrenched nature of the stand-off that both sides have now agreed to let the European Commission mediate.

The EU’s 2023 justice scorecard placed Spain 23rd in the bloc for public perception of independence of courts and judges, with political pressure the most commonly cited cause of interference. 

Pedro Sanchez appauds prior a Parliamentary debate on the eve of a vote to elect Spain’s next premier, at the Congress of Deputies in Madrid on November 15, 2023 | Javier Soriano/AFP via Getty Images

“As well as damaging the credibility of public institutions, this [dispute] demonstrates that the Spanish justice system is very susceptible to party political interference,” said Joaquim Bosch, a judge and spokesman in the Valencia region for the Judges for Democracy (JxD) association, which has frequently criticized the judiciary.

The politicization of the judiciary has been a recurring theme for decades. In 1985, the Socialist government of Felipe González, keen to limit the influence of the many Franco-era judges still serving, introduced a reform that allowed parliament to appoint members of the judiciary council. 

While the dispute over the judiciary’s governing body has continued, tensions have been simmering between Sánchez’s parliamentary allies and the courts. Much of the ill-feeling from judges can be attributed to a contentious 2022 sexual consent law, overseen by leftist party Podemos, which inadvertently led to the reduction of sentences of hundreds of sex offenders, pitting it against judges it accused of misinterpreting the reform. 

“We have been called sexist, patriarchal, ‘fascists in a toga’ – everything under the sun,” said María Jesús del Barco Martínez, president of the Professional Association of Magistrates (APM), Spain’s largest organization of judges.

Sanchez’s recent decision to provide amnesty to those involved in the 2017 Catalan independence referendum, which he previously said was not possible, has also led him directly into conflict and reproach from those atop the country’s justice system.

The government insists the bill is legally watertight. However, before the legislation was presented to parliament, the APM issued a strongly worded statement against it, warning that the amnesty “attacks the very bases of the state and the rule of law.”

Much of the criticism from the judicial bench comes from the part of the amnesty deal that refers to “lawfare,” the use of legal systems and institutions to hurt opponents, a buzzword for Catalan nationalists, who believe state institutions have acted against them in recent years. Many cite lengthy jail terms given to independence leaders in the wake of the failed illegal Catalan independence drive. 

The government’s willingness to discuss lawfare – Sánchez has used the word himself recently, albeit when accusing the Popular Party of blocking judicial council appointments – enraged judges.

Del Barco Martínez said: “There is nothing that interferes more in the work of a judge than politicians telling them what they have to do or checking to see whether what they have done fits in with what politicians want. In a Bolivarian regime you can do that, maybe, but not in a democracy.”

The clash between Sánchez’s parliamentary allies and the judiciary shows little sign of ending, with both sides feeling aggrieved.

 “We are seeing a clear conflict of powers in this country: there is a battle being waged between the judiciary and the executive,” said Orriols, of Carlos III University. “The judiciary is using its resources to defend itself from what it feels is an attack by parliament and Catalan institutions while the executive feels that the judiciary is overreaching.”