One of the things that Álvaro Rodríguez Bereijo (Cedeira, 1938) likes the most is swimming in the open sea. He has been doing it since he was a child and today, at 82 years old, he still practices it. But when he dons the suit of the former president of the Constitutional Court, the trip has a beginning and an end: the Magna Carta of 1978.
His career is proof that the professional path does not have to appear from childhood. He usually says that, in love with the Humanities, he chose a career in Law almost “by exclusion”. It helped him settle his propensity for “speculative thinking.”
A close friend of Francisco Tomás y Valiente, he still keeps a photo of him on the table in the library. Rodríguez Bereijo is part of that generation that, to cement the construction of Democracy, began to think of the laws in dictatorship as if Spain were already a rule of law.
Magistrate of the Constitutional Court for a decade -president between 1995 and 1998-, member of the Court of Accounts, Councilor of State and a wide list of etceteras, this Galician judge knows the ins and outs of the CGPJ, the body whose independence has called into question the Government with its long-awaited reform. The soundtrack for this interview -as almost always happens at Bereijo’s house- is Bach.
The Government intends to reduce to an absolute majority the requirement to appoint twelve of the twenty judges of the CGPJ. Today, three-fifths of the Chamber are required in order to shield the spirit of consensus. What is your opinion of Sánchez’s intention?
The Constitution is very clear in its article 122.3: it specifies that the CGPJ will be made up of twenty members; twelve of them judges and magistrates elected as established by organic law. Four at the proposal of Congress; and the other four at the proposal of the Senate, always by a three-fifths majority. The same happens with the first twelve from 1985 after the reform of the aforementioned law.
The spirit of consensus.
Yes. The reform of a body like the CGPJ must be done by consensus among the major parties that make up the Cortes. That cannot be violated with a ruse like the one proposed by the Government: they want to reform the organic law and establish an absolute majority instead of three-fifths, which is nothing other than degrading the will of the Constitution.
“Montesquieu is dead.” This phrase was attributed to Alfonso Guerra in 1985, after decreeing that the twelve members appointed by the judges were to be elected in the Courts. Does Sánchez intend to finish off Montesquieu?
We must not get entangled with those things … We are in a particularly serious and delicate moment for the Constitution. The pandemic affects society and the economy, but also the future of society as a whole. What Guerra said, if he said it, should not be taken as a footing to interpret what is happening now.
At that time, did Spanish justice embark on a dangerous path?
No, because the Constitutional Court, when it validated that form of election by the Cortes, established that reinforced majority of three fifths to guarantee constitutional consensus on the renewal of said body. This reinforced majority was established by the TC as a substantial requirement. The CGPJ, the governing body of the judges, must preserve its appearance of impartiality in the face of the risk of politicization.
The blockage in the renewal of the organs – produced by the lack of consensus – has brought us this far. But, isn’t this reform precisely meant to end the consensus of the future?
That reform, as I say, all it does is degrade the constitutional consensus. What happens is that we have spent many years, since the late eighties, facing the failure, in due time and form, of the renewal of these bodies by the two major political parties.
PP and PSOE.
Yes. They are responsible for the blockade. Institutions gain or lose prestige for what they do, but also for what is done with them. That is even more important when it comes to the CGPJ. Its appearance of impartiality is the fundamental pillar of a democracy that is based on the separation of powers and the rule of law.
Institutions gain or lose prestige for what they do, but also for what is done with them
The reform, then, is something like solving the problem … magnifying that problem. Avoid the lack of consensus by attacking the consensus.
Yes. Well, more than magnifying, degrading the value implicit in that constitutional requirement of the reinforced majority. The Government proposes that there be a first vote that requires three fifths and that, in the event of a possible failure, the second vote requires a mere absolute majority. It is a ruse, a trap, because political practice will lead us to the evaporation of the reinforced majority. It is a sleight of hand that de facto eliminates the majority of consensus that the Constitution wants for that body.
With the reform, the participation of the main opposition party would never be necessary.
Obviously, that will be the effect. Because today some govern and tomorrow others. And what is worse: the demand for consensus, which is implicit in the spirit of the Constitution, will remain at the mercy of shifts and the rotation of the parliamentary majorities.
Three judges sit on the Council of Ministers (Margarita Robles, Marlaska and Campo). Isn’t your silence about the meaning of the reform of the CGPJ that it is intended to carry out surprising?
That is a question that I cannot answer. They must do it. I am not able to answer for someone other than myself.
Let’s imagine that a decade ago Sánchez’s reform had existed. Do you think the quality of Spanish justice would have been worse?
Justice is based on each and every one of the judges, not only on the CGPJ. They are the judges, chosen in an opposition and through a perfectly recognized procedure, who exercise the judicial power. The CGPJ does not exercise judicial functions, it is in charge of the government of the judges. The reform, if I may express it, is a constitutional bungling.
The reform, if I may say so, is a constitutional botch
I ask you in another way: would you like the twenty members of the CGPJ to be elected by judges and jurists?
That was the debate in 1985… The reform made all the members elected by the majority of the Chambers, but always with the demand for consensus among the major parties.
But what do you think?
For me, it is not the nuclear issue. Either of the two formulas seems fine to me as long as the need for a broad consensus is preserved, leading to the choice of the right people for their ability, curriculum, personality, facts and works. That they are elected by the Chambers, as long as a reinforced majority is required, I do not believe that it hinders that purpose.
Let’s play to imagine two things. First, that the reform of the CGPJ had been carried out by a government whose Council of Ministers was Abascal: what would have been said from the left? And let’s imagine now that Abascal wins the next elections: what do you think would be the impact on judicial independence?
All that you put forward are hypotheses. I think everyone can easily answer that question. Obviously, I suppose the left would say everything you can imagine. However, that question is incidental. The important thing is what the reform contains: a degradation of the requirements established by the Constitution and that seriously affects a body as important as the CGPJ.
In several European countries, the Minister of Justice even has a seat on this body. I take this opportunity to ask you: do you think Spanish justice is more politicized than that of the other member countries of the Union?
No. Our judicial system, with successes and errors, lights and shadows, works perfectly according to the standards of the rule of law. We do not have a worse system than that of the countries that make up the European Union.
You were elected president of the Constitutional Court during the term of Felipe González. Did you receive pressure from that government?
… -be quiet-. I did not receive pressure. The Constitutional Court, either. I was with both González and Aznar.
He has hesitated to answer me.
But that doubt has not had to do with the firmness of my answer, but with the choice of words. Man, who from the outside pressures himself to the courts is part of daily life. But, with me, the government of the day was very careful in its institutional relations. I did see pressure from the media, public and published opinion, and interest groups.
During my tenure as president of the Constitutional Court, I did not receive pressure from González or Aznar
But not from governments?
I call “pressure” for a government to try to force the hand of a court or judge in the resolution of a matter. And that I did not suffer. Whether they exist or not is something that I can conjecture, but that does not respond to my experience.
Who has been the president who, in your opinion, has interfered the most in the future of Justice?
I do not know. The experience I have with González and Aznar, from that point of view, has been good. They did not interfere in the function of the Constitutional Court. They respected it.
And the least?
I had an impeccable experience with both of them in that sense. Obviously, they are totally different political personalities. Not only because of his political orientation, but because of his personal disposition. Each in their own way, exhibited irreproachable demeanor.
On some occasion, he has said: “We have had the worst government at the worst time.” Could you explain it?
We have the worst government at the worst time.
Because the consequences of the pandemic affect the economy and health, but also our system of freedoms. I am very concerned about the political crisis.
What opinion does Pedro Sánchez deserve?
I do not answer that question.
And what about Pablo Iglesias?
Neither. I don’t like personal allusions.
There does not seem to be an alternative: Casado does not finish taking off, Ciudadanos collapsed and Vox does not exceed sixty seats.
The question is why the consensus among the great national parties has been degrading until reaching this incapacity for the dialogue and the political agreement in the subjects of State.
What do you think when you see the discussions in Congress?
It is a great example of the political degradation of which I speak.
During your tenure as president of the Constitutional Court, you were able to meet King Juan Carlos I. Have you been surprised by the latest information that led to your departure abroad?
Yes, I have been surprised, but above all I am concerned about this widespread assumption that everything that has been said is exactly true. Because, ultimately, they are rumors, statements by some people … They intend to stain the work and image of Juan Carlos I, who played a fundamental role in the establishment of the Constitution. He deserves more respect than what is being shown when such innuendo appears.
Juan Carlos I deserves greater respect than the one shown when these insinuations appear
They are no longer mere innuendo. We have seen, through the Swiss justice, papers about its opaque structures and its front men.
That has to be said by a judge. People must not prove that they are innocent.
You know the Spanish judicial system by heart, will Juan Carlos I be tried?
It is protected by all the norms that regulate the Crown and by the inviolability of the King. The future will tell us what path all this takes.
What future do you see for the monarchy?
I promise you the same future as the 1978 Constitution. The future of the monarchy is inseparable from that of the survival of Spain as a nation.
Do you not contemplate that Spain can be a democratic republic?
The future is not written, but the Constitution must be reformed following the indicated procedures. There may be a constituent process, a new Charter, but that is not written. Actually, it’s all guesswork. It remains to be seen.