The real cause of the serious institutional deterioration and the worrying political drift in Spain is not to be found in the present circumstances but in the continuous weakening of the Rule of Law, undermined for decades by our political class (without distinction of parties) who have been exploiting the deficiencies of our constitutional text.
With all its merits, the 1978 democratic Constitution fulfilled a historical role that we must continue to celebrate. However, we would be doing a disservice to truth if we forgot its improvisations and ambiguities, the sometimes frivolous tradeoffs agreed by its constituents and the price paid by the obsession with “consensus”, in reality meaning unanimity. To the terrible mistake of dividing the nation into Autonomous regions, which ended up handing absolute power to Basque and Catalonian nationalists in their respective territories, the constitutional text added an astonishing lack of respect for the concept of separation of powers, concentrating political power exaggeratedly in the political parties represented in Congress, transforming the Senate into an empty chamber, leaving the judiciary unprotected and creating a Head of State void of true potestas and dependent only on his auctoritas. In the absence of clear constitutional red lines, our political class very soon began a process of colonization of all sources of power to the point of slowly making our democracy degenerate into a despotism of the political parties tempered by the obvious alternation of power, which is increasingly more apparent than real.
We must understand that a democracy without separation of powers might gradually become the enemy of freedom, law and order. Indeed, as Isaiah Berlin reminds us, “the government of the people does not necessarily mean freedom for all”, since the main problem “is not who holds the authority, but how much authority has to be placed in the hands of any kind of government (…). The real cause of oppression lies in the mere fact of the accumulation of power, wherever it may be”. For this reason, Montesquieu insists that “so that power cannot be abused, it is necessary that, by the disposition of things, power restrains power”. Thus arises the need for a plurality of powers that compensate each other, with three distinct branches (executive, legislative and judiciary) and a system of checks and balances.
The judiciary must be the unconquerable fortress that defends the citizen from arbitrariness and abuse of power. Unfortunately, the relative independence of the judiciary in Spanish democracy had a short life: in 1985 the Socialist Party took advantage of its overwhelming majority to put an end to it by making the General Council of the Judiciary dependent on Congress and eliminating the Unconstitutionality Previous Appeal, which prevented the entry into force of unconstitutional laws. With that coup de grâce, the judiciary ceased to be a power and we Spaniards became a little less free. Naturally, and in spite of promising the opposite, the successive center-right governments were only delighted to maintain the status quo as soon as they reached power.
Caesar’s wife must not only be virtuous, but she must also be above suspicion. In practice, the independence of the judiciary is reflected in the number of relevant rulings handed down by its highest authorities in which the interest of a citizen prevails over the interest of the State or those in which the general interest prevails over the individual interest of the incumbent. In this sense, how many rulings of Spain’s Supreme Court or Constitutional Court indicate the existence of an independent judiciary? The Supreme Court’s ruling on the Catalan coup, with its far-fetched arguments (uncommon for the intellectual seriousness of that court) and its strange rejection of the prosecutor’s request for a minimum jail time to be served by the defendants (which in practice amounts to their most probable release after the November general elections), gives the disturbing sensation of being yet another example, probably influenced by the fear of political and legal consequences and by the usual Spanish worries about “what they might say” abroad (which is not reciprocal, in case you have not noticed). The argument of the (absolute?) need for unanimity, apparently understandable, does not convince either: it grants veto capacity to the minority, allows the control of the court by means of the control, even if only by ideological sympathy, of just one of its members, dilutes individual responsibilities and is alien to the concept of justice. To give you an idea, since 2000 the U.S. Supreme Court has only ruled unanimously 36% of the time, and almost never in cases of special relevance. If the majority of members of the CGPJ, the Supreme Court and the Constitutional Court were elected by the judges themselves on professional merit, with senatorial criteria of age and experience, and perhaps even for a single, long, non-renewable and non-revocable term, do you think these things would happen?
In Spain there is neither separation of powers between the executive and legislative branches. The function of the executive is to execute the laws that emanate from the legislative and to manage the Administration so that the state machinery does not stop. Since our Constitution does not distinguish between the two powers, in Spain governing has always been confused with legislating and even the success of a government has been measured by the number of laws it passed! As an example, we hold general elections again (after only 6 months) because of Sánchez’s unscrupulous ambition (perhaps fortunately), but the ultimate cause of the electoral repetition is the lack of an independent executive power. If there were one, a president directly elected by the citizens would avoid situations of interim or empty government so that a Congress divided into many different parties would never be an obstacle to forming government without depending on the blackmail of subversive parties (separatists and Leninists). In addition, the different political parties would be forced to find common ground that would encourage a greater stability in time of the laws passed, therefore increasing that key element of the common good that is legal certainty. On the other hand, the probably slower approval process would reduce that feature of the pathology of power that is legislative incontinence. Finally, the uncertainty of irregular political cycles resulting from the abusive power that allows the prime minister to decide the duration of the legislature exclusively based on his own personal interests would be avoided. The example of the most paradigmatic democracy in the world shows the way: since 1845, US Presidential elections have always been held, punctually, on the first Tuesday of November of leap years.
Any reform that limits political power through strong and independent institutions and an effective separation of powers will have to wait until we get rid of the enormous danger posed to our country by current PM Dr. Sánchez (actually, Mr. Hyde), but we must be aware that, if we do not restrain concentrated political power, Spain is on its way to becoming a country without law, order or freedom.
Fernando del Pino Calvo-Sotelo
www.fpcs.es