The General Council of the Judiciary (CGPJ) sees the application of the law that requires parity in the specific case of the Constitutional Court and the Fiscal Council as unfeasible. The governing body of the judges has approved this Thursday its report on the first law of equal representation and balanced presence of men and women in decision-making bodies and its opinion is positive, but warns that, in some bodies, it will be difficult to apply the norm that urges to include “at least 40% of each of the sexes”. The objection of the CGPJ is based on the fact that the form of election of the Constitutional and the Fiscal Council prevents shielding that quota, although in the first case it could guarantee 50% of men and women. Regarding the governing body of the judges, the report, written by the progressive member Pilar Sepúlveda, warns that the new law “departs from the term of joint presence, which appears in the current wording of article 567.1 of the Organic Law of Judiciary”, to be “replaced by that of balanced presence”.
The CGPJ report on the new laws is mandatory, but not binding, so the Government may make any changes to the rule based on the Council’s conclusions, but it is not required. The text of the CGPJ, among other general considerations, points out the confusion that the title given to the law can cause, which includes the term “equal representation”, in clear allusion to equality. “This term does not fit with the model of representation that is proposed throughout the entire draft -with the exception of the reform that affects the Organic Law of the General Electoral Regime (LOREG)-, which is not equal but balanced and that is identifies with that in which there is at least 40% representation of the sex in a minority situation”, the report states. The text The report points out that the parity model of electoral lists is not new in our legal system and has been fully validated by the Constitutional Court.
In the case of the Constitutional, the draft law modifies article 16 of the Organic Law of the Constitutional Court to impose on the bodies that have to make proposals for the appointment of magistrates to guarantee the principle of balanced presence between men and women, according to such that they include at least 40% of each of the sexes. This forecast is, according to the report, impossible to meet given the number of magistrates that by constitutional mandate corresponds to propose to each of the bodies designated by the Constitution: 12 members appointed by the King; four proposed by Congress by a majority of three fifths of its members; four proposed by the Senate, with the same majority; two at the proposal of the Government, and two at the proposal of the General Council of the Judiciary.
“Given the number of members that each of the designated bodies may propose, it would seem more appropriate to resort to a different percentage than the one proposed as a concept of the principle of balanced presence relative to a minimum of 40% of each of the sexes, which, in practice it cannot be carried out”, warns the report, which proposes that the percentage be set at 50% for each sex. After the last renewal, the Constitutional Court already has that 40% of women that the law will require: 5 out of 11, 45%, in the absence of renewing magistrate number 12.
Regarding the Fiscal Council (the main advisory body to the State Attorney General), the problem stems from the fact that this body has members elected by the public prosecutor’s office and the candidacies that are presented, warns the text of the CGPJ, “are not only open, but rather combinable with each other, so that each voter may exercise their right, without necessarily being subject to the names included in the same candidacy”. In other words, each prosecutor votes for six candidates from open lists and can combine several lists, so that regardless of the way the candidacy is composed, a balanced presence of men and women cannot be guaranteed. “The nature of the vote cast by the voters and the electoral system that regulates the election of the elective members, make it impossible to demand that the composition of the Fiscal Council imperatively adjust to the principle of balanced presence contemplated in the reform,” the report states. of Council.
The text also assesses the application of the new law in the CGPJ itself and warns of a clash between the rule that the Government has just approved and article 567.1 of the Organic Law of the Judiciary, which states: “The twenty members of the General Council of the Judiciary will be appointed by the Cortes Generales in the manner established in the Constitution and in this Organic Law, according to the principle of equal presence between men and women”. Faced with this mandate, the new law speaks of “balanced presence”. “The pre-legislator should analyze the dysfunction that the coexistence of two projected texts with different content can cause” for the future renewal of the Council, the text concludes.
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