Spain's judiciary under scrutiny over expired terms and sovereignty

Expired mandates and sovereignty: the battle for the Judiciary

A paradox defines the current Spanish public debate: the Judiciary is accused of being illegitimate because its members hold expired mandates, yet the body responsible for renewing them has been blocked for years by the very political system that appoints them. The controversy was triggered by claims that a group of judges appointed by the PP (People's Party) whose terms expired seven years ago are attempting to bypass both legislative and executive powers. The starting thesis is blunt: if national sovereignty resides in the people, and the people have repeatedly voted for the same president, a judge with an expired mandate should resign out of decency or be removed by Parliament.

The proposal is not new, but the tone is. There are calls for "radical" legislative intervention to address what is described as a disease corroding the country. This is where the problem begins: the very tool proposed to clean up the justice system—having Parliament elect judges—is the same one that, according to other analyses, has contaminated the system since 1985.

What the Constitution says about sovereignty and the Judiciary

The underlying argument is that national sovereignty resides in the people, who have elected their government. It trinc that a non-elected body cannot override the popular will. However, this reading ignores an uncomfortable detail: the Constitution itself designs the Judiciary as an independent power specifically so it does not respond to the impulses of the majority in power.

This contradiction cannot be resolved with slogans. If Parliament can expel judges it dislikes, the judiciary ceases to be an independent power and becomes a branch of the executive. Those defending parliamentary intervention argue that the current deadlock is already a form of politicization, just in the opposite direction.

The origin of the problem: the 1985 reform

The debate becomes more complex here, as there is agreement on the diagnosis but disagreement on the solution. Before 1985, judges elected the members of the CGPJ (General Council of the Judiciary) from among themselves. This system, it is argued, better guaranteed the independence of the body governing judges.

It was the PSOE (Socialist Party) that changed the model in 1985, using its absolute majority to pass a law that gave Parliament the key to appointments. Since then, the CGPJ has been divided among political parties. The question remains: if the current system is the problem, why is the proposed solution to deepen it?

The renewal deadlock: who is to blame?

The official version of the deadlock consists of two mutually exclusive narratives. Some claim the PP refuses to renew the council because it does not want to lose its share of power. Others assert it was the PSOE that walked away from the negotiating table when leaks suggested the seat distribution would give the PP control of the Second Chamber of the Audiencia Nacional (the high court that tries high-ranking officials). The discussion thus becomes an exchange of accusations over who first broke the deal.

What both versions share is that renewal depends on a pact between the same parties that later criticize politicization. The CGPJ is not being renewed because no one wants an inconvenient referee.

Reforming justice: proposals on the table

Amidst the clash of political blocs, concrete proposals are circulating to break the cycle. The most detailed one suggests three steps: primaries among all judges (both associated and non-associated) with open lists, so that only the twelve most voted represent the profession in its governing body; direct election of high judicial officials by the affected judges themselves; and increasing justice spending to 2% of GDP, the European average.

The package is internally consistent: if the problem is that politicians select the most politicized candidates, this removes politicians from the equation. The counter-argument is equally reasonable: no system can prevent judges from voting for those most aligned with a particular political current.

The shadow of Francoism and the legacy argument

Part of the analysis suggests that the Judiciary remains an heir to the Franco regime, much like the monarchy, and that a "sociological Francoism" persists. This thesis is frequently repeated to explain why certain judicial decisions clash with the government.

The response from the other side is that this argument is a pretext to delegitimize any adverse ruling. If every uncomfortable decision is attributed to a dictatorial legacy, the debate over the quality of justice is replaced by a label. And labels do not reform anything.

Europe as a last resort

Among the more sophisticated positions is an argument looking outside Spain: as long as the country is in the European Union, any decision by Spanish courts can be appealed to European instances. If European rulings were to systematically contradict Spanish ones, Brussels would be forced to react.

This reasoning shifts the problem to an external referee. It is also an implicit admission that the domestic system does not generate sufficient trust. The final paradox is that the legitimacy of the Judiciary is debated in the same terms as that of the government: based on who appoints it, rather than how it performs. Meanwhile, the mandates remain expired.