Does separation of powers exist in Spain? Examples and data

“Mistake by mistake towards final disaster. ” This was how the well known journalist Jordi Evole tweeted about Jordi Sánchez’s and Jordi Cuixart’s unconditional arrest warrant by Judge Lamela last Monday. The comment was made viral by many well-meaning people – some of them members of important Spanish political parties-. However, in implies a serious mistake, one of the most serious that can be committed in this critical hour that we are going through. Ignoring the fundamental rule of separation of powers -or casting doubts on it without reason- can endanger  our democracy and peaceful coexistence even more than any secessionist movement.

The separation of powers is the main system of control of public power: its  basic purpose is to achieve the rule of law –not of  the men in power-. The way that it works is that in the face of any challenge to peaceful coexistence (external or internal, such as the present secessionist movement in Catalonia), the State’s response is not exclusively in the hands of one person (such as Mr. Rajoy) or a group of people, but that it is carried out in an objective way through the application of laws that have been previously adopted and voted in Parliament. If someone acts against the Law, the reaction of the State should not depend on the political expediency or the judgment of a single person or a group of people, but on the rules established through a democratic process. This is the only way to prevent arbitrary decisions, discrimination and abuse (in short, the law of the strongest). Despite the opinions of some left-wing politicians, the division of powers is comes from Rousseau as well as Montesquieu, because only if it applies,   when obeying the Law are we obeying ourselves (what Rousseau called the general will). If we are left in the hands of the particular judgment of the person who is in power – no matter how wise, enlightened or “representative of the people”- we will be subjects and not citizens.

The institution that guarantees the division of powers in a democratic State is the Judicial System. The law –the expression of the general will- is spoken through the judges. Of course a judge can be wrong in his decision –as any human being- and that si why there is a system of appeals to review any of their decisions. This internal system of counterweights is decisive to protect the accused from technical errors … but also to protect the institution from the risks of capture by the politicial parties, or by the the ideological inclinations of its members. For example, a judge or a prosecutor may consider that a case should not go to trial for reasons of political timing: in that case the corresponding judicial order can be appealed by the private prosecution and a higher court can revoke that decision. Or the opposite happens and it is the decision of sending someone to prison that is revoked. But what is certain is that this mutual control is a fundamental guarantee of real justice and correct functioning of the system. We have many examples of all this working in Spain.

In this blog (Hay Derecho) and on countless occasions we have the attempts of the political power to control the judiciary. But it is important to point out that the influence is only possible on the governing body of the judiciary (the CGPJ), which can only influence the nomination of the Supreme Court and the Presidencies of the Superior Courts of Justice of the regions and the National Court (Tribunales Superiores de Juscticia and Audiencia Nancional). Some of the politicians who now complain about the political influence on our judicial system (namely, the nationalists) have participated eagerly in this influence. On the other hand, for the moment the influence cannot reach the lower courts and judges, and in particular in charge of criminal investigations, the real trenches for the defense of our Rule of law. In this regard we can be moderately satisfied. Important cases involving influential people would not have seen the light without the zeal, independence and effort of these judges.

Many people with real power have been condemned or submitted to investigation thanks to them. Powerful people who seemed to think the rule of Law did not apply to them have gone to jail. This includes a powerful ex minister and a former Secretary of State of Interior who belonged to a socialist Governments who then had the absolute majority (remember this news); and also former presidents and vice-presidents of autonomous governments of the PP (González, Granados, Matas); other ex-ministers and former presidents of the CCAA who were prosecuted by these investigative judges weresaved in extremis by the Supreme Court (Blanco, Barcina). These judges have dismantled or are investigating corrupt plots, sending to jail dozens of former public officials belonging to the main political parties in this country (cases Gürtel, ERE, Brugal, Champion , Emperor, Fabra, Filesa, Guateque, Malaya, Palma Arena …). No less than 1700 cases and more than 500 persons have indicted or investigated. These judges have condemned 80 directors of Savings Banks and are in the process of investigating 95 others (yes, Rato is not yet in prison, but neither is Pujol, the “father” of Catalan nationalism now under very serious charges for corruption). They have brought to court the King’s sister and some of the most important businessmen and financiers in this country (Emilio and Jaime Botín, César Alierta, Alfredo Saénz …). Some did not end up in jail finally, in some cases thanks to the TS (Botín and Alierta) or to the pardons of the Government, but certainly not thanks to the lower court judges..

There are problems in our system, it cannot be denied. In the latest surveys of the European Network of Justice Boards (2014-2015 and 2016-2017) between 65% and 74% of Spanish judges complain that appointments or judges are not based on merit or experience ( in France 50%); and between 10% and 15% complain that they occasionally suffer from inadequate pressures (by politicians, citizens or the media) which is one of the highest percentages in Europe, although it does not mean that they give in to the pressures. A high percentage (around 50%) thinks their independence is not respected by the political power (Government and Parliament), but it is a proportion similar to the United Kingdom and by far less than Italy. Again a high percentage of judges (11%) complain of pressures within their own judicial organization, but that again is similar to that of the UK. Their final grade they give to their own independence, is a 8.7 out of 10 (lower than the European average but still reasonable). When asked about measures to strengthen that independence, they point to appointment and promotion based strictly on capacity and experience and better working conditions –workload, wages, pensions and retirement age-.

In conclusion, the system can no doubt be improved, particularly reforming the partitocratic distribution of the members of the CGPJ than to something else. But the health of the system, especially in the lower levels, passes easily the test of the division of powers. Therefore, in this particular case of Judge Lamela, the decision of imprisonment may be technically wrong, or perhaps not. The crime may be sedition or simply public disorder. The precautionary measure may be excessive or not. But if it is wrong, it will be corrected in due course. If not, it will be confirmed and the detainees will continue in jail. For the moment there are reasons to think that we are governed by laws and not people. The day that this ceases to occur, all Spaniards (and not only some) will be immersed in a revolutionary process where they will not obey the laws themselves, and then our democracy will definitely come to an end.