Spain is slowly rolling down the slope of history. Its best moments seem to be behind it and the constitutional edifice of 1978 – just another chapter in its long life – seems to be crumbling in slow motion. Is its decline the sole responsibility of the current government or is there a deeper problem?
It is easy, and more so in the typical pre-electoral period, to denigrate a government as obviously harmful as the one we have and hold out hope that a change in government will rebuild what has been destroyed and return us to a better or, at least, a more peaceful past. But to personalize the decline of our country on those in power today paints an incomplete picture of current affairs, and the hope that the indolent opposition will change things in a lasting way will in all probability lead us to frustration, once again.
This viewpoint is not an acquittal of a government that I consider liberticidal and subversive. How can I not judge negatively those who lead Spain to the precipice by dynamiting our Rule of Law, shamelessly betraying their pledge of loyalty and repeatedly demonstrating that they do not accept any ethical, aesthetic or even legal limits? I could not have a more negative judgment, as have so many observers inside and outside our country.
These considerations, however, true as they may be, do not show us the whole truth, because Spain’s problem is much deeper and more complex and will not disappear when this government is thrown into the closet of oblivion because this government is a symptom of the disease afflicting Spain, but it is not the disease itself.
Thus, I would like to delve into three major structural factors that largely explain the drift of our country. The first is the institutional crisis whose origin lies in the weaknesses of the current regime of 1978 and in the repeated abuse of it by the two major political parties over the last four decades. The second is the profound crisis of values suffered by Spanish society, the ultimate cause of the very poor level of politics and politicians. The third factor, finally, is the lack of self-esteem of the Spanish people, beaten for centuries by their domestic and foreign enemies and despised by their political class – except on election eve.
Systemic institutional crisis
Let us begin with the crisis of the regime of ’78. In any political system, the first to comply with the law must be the government itself, because when the rulers stop respecting the law and bypass the formal procedures aimed at preserving legal security, Pandora’s box is opened and hugely destructive forces are released that endanger coexistence and the rule of law, leading us first to anarchy and then to tyranny.
Thus, the persistent violation of the 1978 Constitution represents a real existential risk for our country. Defending it does not mean glorifying or mythologizing it by denying its obvious weaknesses, which are one of the causes of the institutional degeneration we are experiencing and which sooner or later we will have to address.
Thus, although the immediate cause of the regime crisis is this miscreant government, the underlying problem lies in the constitutional blunders that have allowed the disproportionate power attained by the political parties, a cancer that has metastasized, colonizing all the institutions of the State and invading vital organs over the course of time.
As early as 1977, that great observer of the Transition, the philosopher Julián Marías, warned that it was not clear to him whether the parties had been created to serve the State or the State to serve the parties. Decades later, no one doubts the answer: the parties consider the State to be their private property, a property over which they have the right to use by rotation. Thus, when the political alternation takes place, the incoming party occupies all power areas that the outgoing party has had to vacate, convinced that it “has the right” to hold not only the power, but the monopoly of power for a while. “Now it’s my turn”, is the slogan.
The necessary separation of powers
The monopoly of power is very dangerous. The wise men of the past, who were aware of the immutability of human nature and, therefore, alien to any utopian temptation, were clear that to preserve freedom, the concentration of power in the hands of a few should be avoided.
Already in the Roman Republic, the raison d’être of the tangle of republican institutions was to divide power so that the ambition of some would curb the excessive ambition of others. Twenty-three centuries later Montesquieu summed it up in one sentence: “to avoid the abuse of power, power must restrain power”.
Those who applied this concept most rigorously were the founders of the United States, whose Constitution moderated the exercise of power so that majorities did not abuse minorities and thus avoiding the tyranny of the masses, so manipulable, fickle and prone to lynching.
They also created a complex system of checks and balances with their open lists, their primaries, their strict separation of powers between the executive, the legislature and the judiciary, the Senate from the Congress, the length of terms of office and the existence of independent institutions.
Compare this system with the Spanish one, where executive power emanates from the legislature and where there are closed lists and voting discipline, with congressmen and senators limiting themselves to the role of obedient drones repeating “Roger, Roger” on the leader’s orders.
In addition, the Senate (with its theoretical territorial representation) has hardly any potestas and has a composition that usually coincides with that of the Congress. Finally, the judiciary is highly politicized, particularly after the indecent takeover of the Constitutional Court by Socialist party insiders. Thus, in a constitutional monarchy like Spain, the president of the government has almost more power than the president of a presidential republic.
On the other hand, given that the Law is what preserves us from tyranny, when our political parties, so undemocratic in their internal structure and functioning (contrary to what our Constitution stipulates), have the audacity to criticize “undemocratic” institutions, they are not only making an exercise of hypocrisy, but threatening our rights and liberties. Don’t forget that pure democracy is two wolves and a sheep voting what we’re having for dinner tonight – or two subsidized people and a worker voting on how much we’re going to raise taxes.
Naturally, power junkies are especially harsh with the institutions that are more difficult for them to exert control over (the Head of State, the Judiciary, the Intelligence Agency or the Bank of Spain) and also with the laborious procedures established by law that hinder them in the absolute exercise of power.
Just as the scorpion in the fable cannot avoid stinging the frog, even if it leads both to death (“it is my nature”), power cannot avoid tending to expand in time and space, even if it leads to disaster. Thus, it is in the very nature of power to constantly seek permanence in time and totality in its scope, that is, perpetual power not subject to any law, for the summit of power is arbitrariness. Indeed, in the famous film Schindler’s List, the psychopathic and sadistic concentration camp commandant says: “We have the power to kill, that is why they fear us”. But Schindler corrects him: “They fear us because we have the power to kill arbitrarily”. Indeed, arbitrariness is the great enemy of freedom, justice, order, and peace, and it has only one antidote: the objective norm. That is why power junkies try to destroy the Law or to control those who apply and interpret it.
If power longs for permanence and arbitrariness, it will try by all means to avoid temporal or legal limits that hinder its will of unlimited power. Thus, for those in power, elections are an irremediable evil that they would like to postpone, avoid or cheat on. This threat is more alarming when political power falls into the hands of a person who exhibits obvious psychopathic traits, as is the case in Spain today.
Abusing the weaknesses of the Constitution of ’78
Thus, we must not forget that the regrettable institutional deterioration that we are living has as its origin the exploitation by the parties of the weaknesses and naiveté of our 1978 Constitution.
Indeed, a constitution can be written by a wise man, a fool, or a cynic. The wise man writes it thinking that the one who is going to occupy power is his worst adversary, so he puts all possible obstacles to its exercise. The fool, on the contrary, thinks that he is the only one who can reach power and, therefore, tries to smooth the path for himself. The cynic thinks that sooner or later his turn will come and that when it does, he will be able to squeeze every drop of the nectar of power and that, after all, the Constitution is a dead letter if it can be violated with total impunity.
Like any human deed, a political system is always fallible and limited and is conditioned by the era in which it was born, by the fears and hopes of its actors and by the tendency to compensate, sometimes in a clumsy and short-sighted way, for the perceived negative elements of its most recent experience. Therefore, I will not judge the “fathers” of our Constitution or its approval process except to say that one of them confessed to me years ago that the process had been “a constant improvisation”. In any case, the constitutional text did not provide sufficient mechanisms for self-defense against the excesses of the very parties that drafted it.
Dialogue is only possible based on shared basic premises and an undisputed identity. However, the much-vaunted consensus between the left, the right and the then weak nationalisms through the Constitutional period was more apparent than real, as a result of which concepts were invented to get out of the way (“nationalities”), contradictory paragraphs (private property “delimited” by its “social function”) and references to future laws of lower rank that each party hoped to be able to draft without the annoying requirement of “consensus”. That said, and beyond the good intentions of some and the ignorance and Machiavellianism of others, I am overcome with a certain nostalgia when I think of the innocence and capacity for dialogue of the Spain of that time.
The obscene assault on the judiciary
In short, our Constitution did not properly preserve the separation of powers as advocated by Montesquieu: it did not separate the executive from the legislative power (which was merged into one) and left the door open for that single power to control the judiciary as well. Additionally, it counted on the so-called “fourth power”, that is, the media, which today have been completely corrupted by money, by party interests and by the complete abandonment of the search for truth.
In an example of a referral to a lower rank law in the absence of consensus, the Constitution did not specify who elected 12 of the 20 members of the highest governing body of the Judiciary. At first (1980) the two major parties voted in favor of the judges themselves (258/350 votes in favor). Subsequently (1985), the absolute majority held by the Socialist party (202/350 seats) decided unilaterally that they should be elected by 3/5 of Congress and Senate.
The subsequent appeal by the opposition before the Constitutional Court was unanimously rejected (1986) although the Court clarified that the 3/5 criterion should imply that all candidates should be elected by consensus and, therefore, subject to mutual veto, avoiding proportional “quotas” of power in which each party freely chose its own like-minded candidates. This ruling has always seemed to me an exercise of comfortable voluntarism like releasing the fox trusting that it will not eat the chickens.
The “consensus” encouraged the presence of independent candidates of recognized prestige and avoided figures with an excessive political profile. On the contrary, the “quotas” have encouraged judges to have a clear political affinity or loyalty and discredited the institution by dividing its members between “conservative” and “progressive” judges or magistrates.
Against this background, the current government has gone a step further by appointing to the Constitutional Court candidates indistinguishable from party politicians, subject to conflicts of interest that are often precursors to prevaricating conduct. This assault was initially aborted in self-defense by the Court itself causing some to criticize an “unprecedented clash of powers”, when it is precisely the clash of powers that guarantees the functioning of the system and the protection of our freedoms. The powers were created separate so that, if necessary, they could oppose each other. Otherwise, what is their raison d’être? In this initial clash, faithful to its bullyish nature, the government pressured the Court, violating the law and decorum with crude criticisms more typical of banana republics than of European countries.
Bipartisan torpedoing of the Rule of Law
However, although the current government is demolishing the rule of law and legal certainty without any scruples, the opposition lacks the moral authority to criticize the attempt to take control of the judiciary, since the torpedoing of the rule of law has been of a bipartisan nature.
In effect, the two major parties have modified the Organic Law of the Judiciary and their majorities when it has suited them, and the current opposition Popular Party has had no interest in changing the status quo once it has reached power, thus failing to fulfill its electoral promises despite having two four-year periods of absolute majority.
The reality is that in this matter no political party defends high principles or the general interest, but particular and short-term interests. Communists and socialists do it for their totalitarian ideology or for a narcissistic and psychopathic will to power; the Popular Party does it for more prosaic reasons, such as trying to keep its corruption from coming to light by controlling the “back door” – that doesn’t mean that the Socialists are not equally corrupt.
I ignore what will be the medium-term outcome of this disturbing and umpteenth assault on the rule of law led by a president who swore a loyalty to his country and its institutions that he constantly betrays. It will not be the last, for his pathology does not tolerate losing any tug-of-war nor does it allow him to understand why his will cannot be transformed into law ipso facto.
I doubt that by acting in this way he might seek only his own political survival at any cost by “yielding” reluctantly to undesirable partners for a naked and unscrupulous will to remain in power. This reason notwithstanding, it is impossible not to observe a radical and subversive ideological agenda that transcends the above. If his objective were only to enjoy the pomp and circumstance of office, he would be satisfied with 176/350 seats to pass his laws. However, he systematically seeks and finds the approval of a greater number of supporters and always from the same extremist parties with which he feels so comfortable, which indicates an informal political alliance of much greater depth.
Thus, as a culmination of the constant abuse of all political parties for decades, this subversive government is leading us towards the reefs. The institutional deterioration has reached such an extreme that even merely aesthetic rules are no longer respected, and the solution can only be to depoliticize the judiciary definitively by enshrining it in a constitutional amendment and putting an end to the impunity with which politicians violate the laws.
Indeed, any citizen pays dearly for the slightest infraction of the smallest of rules. In stark contrast, our politicians can attack and break the most important of laws and absolutely nothing happens to them, as we saw with the illegal state of alarm. Here we come up against a fundamental problem: when the decision-maker does not suffer the consequences of his actions or does so asymmetrically (that is, if it goes well, I benefit, and if it goes badly, nothing happens), a perverse and reckless incentive system is created. This impunity before the law of the political class must end.
We said at the beginning that Spain’s drift was caused by an institutional crisis, a crisis of values and a crisis of self-esteem. These last two factors will be discussed in the next article.