Originally published in Spanish: «Autoritarismo judicial y ciencia política”. Fernando Jiménez Sánchez. El Mundo.
24th December 2018
Spanish politics has given the world some widespread words such as liberal, guerrilla or pronunciamiento, to mention the most famous. The latest creation of the Spanish genius is the phrase “judicial authoritarianism”. This innovative concept has been coined in recent months by those who feel unfairly persecuted by the Spanish courts, after their involvement in some of the most culminating moments of the Catalan process. Such concept is gaining traction among those who, not considering Catalonia’s independence as a desirable end, do believe that a political conflict exists, which must be solved exclusively through the political negotiation, without the intervention of courts to prosecute actions that –according to them– only if strained it could be considered as criminal unlawfulness. All of them believe that the intervention of courts on this conflict would be an evidence of the Spanish state’s poor quality of democracy or, from the most daring views, even of the authoritarian nature of our regime, only apparently democratic. In fact, both groups think, these people who are now enduring the legal prosecution simply allowed Catalans to do something as democratic as voting on a referendum on self-determination.
Many of the commentators on this newspaper have discussed both if the right of a territory within a democratic state to self-determinate exists or not, and whether the leaders of the regional government in Catalonia and the social organizations who arranged the referendum may have committed a serious offense that justifies their pre-trial detention. So I will leave aside these issues to focus on the latest episode of the alleged judicial authoritarianism affecting those who were part of the electoral commission designated by the parliament of Catalonia, supposedly to guarantee the appropriate conduction of the vote, composed by five members –three lawyers and two political scientists.
As we know, the Barcelona prosecutor’s office charges them with the crimes of disobedience to authority and usurpation of public office for having ignored the rulings of the Constitutional Court, first suspending and then declaring illegal the actions in the parliament to call the referendum. In fact, the members of the committee kept acting as such until their resignation after being warned by the Constitutional Court that each of them would be fined with 12,000 euros for every day they kept acting as trustees.
This charges have led to the circles closest to the concerned individuals to promote a national and international campaign to sign a petition in their support against a prosecuting action that they describe as “spurious”, driven exclusively by “political motivation”, since these five lawyers and political scientists simply carried out their professional duty mandated by the Catalan parliament to “guarantee a free and fair referendum”. So their prosecution would represent a “prosecution of basic civil democratic rights in Spain”, which leads them to strongly condemn the “unlawfulness of jailing individuals because of their political ideas”. This petition of support has been widely circulated among the professional fields to which the five members belong and particularly in the professional networks of political sciences, and has succeeded in getting many political scientists unaffiliated to the secessionist cause to express their support, including national associations as the American, the Canadian or the British, with the Spanish remaining silent. Of course, taken by the terms of the mentioned petition letter, that is, if we read the prosecution as a political persecution of people who simply performed their professional duty, is hard to refrain to express support for the concerned individuals and rebuff the authors of such persecution. However, the professionals devoted to political analysis, as is the case of the political scientists, we should expect from them to not let themselves be drawn to the first impression provided by an active actor in a conflict.
There are three major reasons to debunk the crafty and ridiculous thesis of the judicial authoritarianism that so many political scientists have endorsed, despite not being supporters of the Catalan secessionism. The first is related to the facts, and these are pretty clear. The trustees are not being prosecuted for performing professional activities or because of their political ideas. They are so because allegedly they have committed an offence of disobedience to authority by ignoring the rulings of the Constitutional Court, and also an offence of usurpation of public office by carrying out the tasks they were not entitled to when the court declared unlawful the laws that led to the call on the referendum on self-determination for 1 October. Obviously, these defendants are entitled to the presumption of innocence and the defence of their interests all the way to the Court of Human Rights in Strasbourg if they see their rights violated without a rectification by the Spanish lower courts.
The second reason to reject the judicial authoritarianism thesis is related to the role performed by courts in a democracy. As I said at the beginning, some people believe that behind the Catalan process there is only a political conflict that must be solved by political means and for which any judicialization would be inconvenient. It is unquestionable that the tension in which the Spanish public life has settled has a political origin. However, the independentist leaders got so far as passing legislation that flagrantly violates the constitutional order and their own Statute of Autonomy. Even if they were bluffing (as Clara Ponsatí said), and they did not remove the Spanish flags of public buildings after the proclamation of the Catalan republic, later suspended, they acted outside the constitutional frame so, in such circumstances, since we live under the rule of law, the action of courts is unavoidable. As Kennedy pointed out in a well-known speech, “in democracy, the citizens are free to disagree with the law, but not to disobey it. For a government of laws and not of men, no man, however prominent and powerful, no mob, however, unruly or boisterous, is entitled to defy a court of law”. This is to say that a democratic state can only prevail if we make politics in the law, even against the law, but not outside the law.
There could be, however, one reason to keep the judicial authoritarianism thesis —that all of the above is not applicable to Spain, because our country is not really a democratic rule of law, but some kind of flawed democracy or an authoritarian regime. Some non-secessionist Spanish political scientists have said that the quality of political institutions is now so diminished that the calls to the strength of democracy to justify the criminal prosecution of the secessionists actions is just a burst of Spanish nationalism. While I acknowledge the institutional deterioration, concluding that Spain is not a democratic rule of law anymore strikes me as astonishing. You only need to read the latest and highly critical report by GRECO (January 2018) on the problems about the independence of the judiciary in Spain to avoid positions both extreme and preposterous. While there is too much political meddling in the nominations for the General Council of the Judiciary and there are no objective criteria for the access to high courts, the report claims, “there is no doubt about the quality of judges and prosecutors in Spain and their strong spirit of public service and dedication”. How disappointed would be Juan Linz if he could read and listen to the claims of some of their current professional colleagues.