In a recent article, Victor Lapuente said that the biggest political divide today is not between left and right but between “legalists and democratists.” The first is true: Junts and the PNV, which have refused to agree with the PP but agree to support a PSOE and Sumar government, are right-wing. Right-wing and oligarchic, because they have the richest voters in those autonomous communities and have directed their destinies for most of the democracy – and xenophobic, because they only consider those who defend their exclusionary nationalism to be true Catalans or Basques.
The second is already more debatable. The legalists, according to Lapuente, are the ones who put respect for the Law before the will of the ballot box, while the democratists prioritize that will. Although the author may only intend to make a sociological description, the distinction recalls the political discourse that opposes Law and Democracy. It is the same idea of those who criticize the “judicialization of politics” when a politician who has violated the Law is prosecuted or when a Law is challenged before the Constitutional Court. The same is maintained by Sanchez Cuenca when he speaks of “conflict between the principle of legality and the democratic principle.”
It must be acknowledged that their argument is simple and convincing: Citizens elect their representatives and they have the mandate to form a government and develop the policies of their programs. The limits of the law or the Constitution and its imposition by judges are contrary to popular will and democracy.
The problem is that, if democracy is to elect the rulers, it would be enough to elect a President – double-turned, of course – who would appoint the government that will implement the policies. Parliament is too much, because it is more efficient for the rules to be made by the government. There is also a surplus of judicial power, because no one better to interpret the law than who has made it, which also has democratic legitimacy. Lower costs and more democracy.
All this is logical, but it clashes with experience, which tells us that power inevitably tends to abuse and corruption. Shortly after the French Revolution, Constant already warned that “it is inherent to be able to cross its own limits, to overflow the channels established for its exercise and to enjoy individual plots of freedom that should be forbidden to it.” In other words, power, including democratically elected power, tends to favor those who exercise it and their relatives, to the detriment of equality, security and justice. It also tends to perpetuate itself, and for this it will change the electoral rules or, directly, it will abolish the elections.
That is why the law does not oppose democracy, but sustains it. Not just any law, but the law drawn up by a democratically elected parliament in accordance with a procedure that guarantees its quality. Experience also shows that an independent judiciary is necessary, but also subject to the law. As Judge Fernando Portillo graphically says, the citizen goes to the judge asking for justice, but what he obtains is the application of the Law. Precisely because what he does is apply the law, the judge has democratic legitimacy, even if he is not elected.
Experience also tells us that all this is not enough. If the parliamentary majority could pass any law, we would be subject to the tyranny of the majority that could, for example, pass laws that would take the vote off women or allow slavery. That is why there is the Constitution, which is nothing more than a law that sets the framework that all other laws must respect. This framework is necessary to prevent abuse and civil strife, and has to be accepted by a large majority of citizens. That is why the Constitution is approved – and reformed – by large majorities of Parliament and ratified by referendum.
The Constitution and the Law are the expression of the popular will and the guarantee of equality, peace and security. Outside of them we will not find concord, as we are told, but arbitrariness and civil conflict. Let us not forget that the procés was not an attack against Spain, but mainly against the rights of all Catalans. As the Constitutional Court said, the disengagement laws and the declaration of independence put “at maximum risk, for all citizens of Catalonia, the validity and effectiveness of all guarantees and rights preserved for them both the Constitution and the Statute itself. He leaves them [ron] thus at the mercy of a power that claims not to recognize any limit.”
The current negotiation of the investiture consideration with Junts -and PNV- and the insistence that politics must prevail over the law puts the system at risk. It is true that the PSOE says that everything will be done according to the Law and the Constitution. But there is reason to worry. For example, the President’s recent statement calling the procés a political crisis that should not lead to justice. There is also concern about the general lack of respect for the system and institutions in recent times. Suffice it to see that the main producer of laws is no longer Parliament but the Government, by Decree Law; Or that people closely linked to the Government are appointed as judges of the Constitutional Court, damaging their prestige and legal security – that the PP has acted in a similar way does not excuse it. Repeated attacks by government partners on judges complete a picture of deliberate erosion of power controls.
The constitutionality of an amnesty law can be debatable. What is clear is that granting it to specific politicians in exchange for the vote of their party for the investiture, is a frontal attack on the rule of law and democracy. It means violating the principle of equality benefiting politicians who have committed crimes, it means disregarding the Law and the courts that applied it with all the guarantees.
It is surprising that those who put the will of the majority above the law do not see that those barriers that are destroying today will no longer defend us when those of a contrary ideology govern. It is not a struggle between right and left, nor between law and democracy. It is the struggle of citizens against politicians who, for their own short-term interests, tear down the levees that contain power, by taking away the protection of the law and the Constitution. Nothing new: 2500 years ago Heraclitus said that “the people must fight for the Law as for its wall” and that is what we must do (of course, within the framework of democracy and the rule of law, which in these times seems necessary to repeat the obvious).
Published article and rights of The Objective