A month before highly sensitive regional elections in Galicia and the Basque Country, socialist judge Garzón has taken it upon himself to neutralise two of the principal obstacles to his party’s regional franchise coming to power in the Basque National Nation: ETA front parties, and the conservative PP. And in the midst of these elections and political prosecutions he managed to find time to go hunting with socialist justice minister Bermejo.
Both the PP and ETA’s friends richly deserve their fate, but I suspect that further north the appearance of collusion between the executive and the judiciary would have been regarded as somewhat more serious than, in Juan Carlos Escudier’s telling phrase, merely “aesthetically reprehensible“, and I think it would be inconceivable for a senior member of the judiciary either at the European Court or in the UK to be compromised in this fashion by a minister and survive. European agreements re the Luxembourg court determine that:
The Judges and Advocates-General are appointed by common accord of the governments of the member states and hold office for a renewable term of six years. The treaties require that they are chosen from legal experts whose independence is “beyond doubt” and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are of recognised competence. In practice, each member state nominate a judge whose nomination is then ratified by all the other member states.
The separation of powers was until very recently less clearly defined in England and Wales, and until in the 1960s the judiciary exerted its independence from the executive the relationship between the two still had something of Francis Bacon’s “lions under the throne” about it. Formal political control over the appointment process remained until this breach of the concept of the separation of powers was removed by the introduction of the Judicial Appointments Commission in 2005.
However, senior officials were appointed from amongst highly experienced members of the legal profession, and I am unable to recall any case of a politician having been thus rewarded. Similarly, I cannot think of any case in that period in which a British judge was compromised in such a fashion by a minister. (Sinn Fein’s accusations re an alleged meeting between judge Basil Kelly and John Major, brokered by the then Sir Brian Hutton, during the big 1983 IRA supergrass trial may constitute a serious exception to this.)
By these different routes, both the British and the European judiciary have generally come to be seen to be open and independent in their selection and operation. By contrast, in Spain 77% of the population, including I suspect virtually all northern European expats, apparently believe that the Spanish judiciary acts in allegiance to political objectives rather than to the legislative intent (as is generally the case in continental civil law jurisidictions) or concepts of natural justice (as is sometimes the case in the more judicially creative common law tradition, albeit restrained, as I think was the case with judges like Hutton and Kelly, by Establishment values). It is instructive to examine how this has come about.
Judicial independence in the age of democracy (ed Russell & O’Brien, 2001) describes the birth of post-dictatorship Spain’s justice system:
The Italian experience [proved] particularly attractive to the younger Iberian democracies, emerging from the fall of the authoritarian regimes. In its transition to democracy, marked by the 1978 Constitution, Spain reentered the mainstream of the Western constitutional tradition with a separation of powers and guarantees for judicial independence. Notably, the Consejo general del poder judicial was created to secure the independence of the third branch vis-à-vis the executive. Following the Italian model, the Spanish constitution provides that the majority of the Higher Council will be judges. This provision was enacted through the Ley orgánica of 1980, according to which the Higher Council is presided over by the chief of the Supreme Court and is composed of twenty members, twelve of whom are judges directly elected by their peers. The rest are appointed in the same proportions by both chambers of Parliament. As in Italy, the minister of justice only oversees the administration of justice. After the victory of the Socialist Party in 1982, however, the new government clashed with the conservative majority of the Higher Council.
That conflict led three years later to the reform of the Ley orgánica and resulted in judicial members of the Higher Council being elected by Parliament. That gave rise to both complaints from judges and controversies in Parliament. Although rejecting a legal challenge to that judicial reform, the constitutional court raised doubts about the introduction of an appointing mechanism that appeared to threaten the “partisan logic” of the Higher Council’s decision making.
The politicisation by the socialist government of the judiciary was, ironically, merely the beginning of problems between the two, and the personal ambitions of judge Garzón made him a key figure in the destruction of the socialist government. By the early 1990s, he had made powerful friends in the PSOE, and he became a PSOE deputy in 1993 and was appointed second-in-command at Interior. He left politics shortly to return to the judiciary after, some say in a fit of pique, when Juan Alberto Belloch was made head of the merged Interior and Justice ministries. In the judicial enquiries into illegal party funding, tax evasion and gross embezzlement that led to the socialists’ disgrace and fall in 1996, Garzón’s investigation into the government-organised GAL death squad was for many the final straw. However, as has been evident these past weeks, his relationship with the PSOE has been fully restored.
The Spanish constitution, although nobbled by the reform described above, does forbid members of the judiciary from participating in politics (Art 127.1 Los Jueces y Magistrados, así como los Fiscales, mientras se hallen en activo, no podrán desempeñar otros cargos públicos, ni pertenecer a partidos políticos o sindicatos.) The behaviour of judges of all political persuasions demonstrates that no way has been found to enforce that, and “mientras se hallen en activo” specifically legitimises revolving-door transfers between the judiciary and the legislature and/or the executive that would be unimaginable in London or Luxembourg.
Writing re the curtailment of the freedom of speech by the British Labour government–the population being enjoined to trust in Nurse for fear of something worse–Brian Micklethwait writes:
What we are witnessing here is democracy, not some perversion of it. If enough voters threaten violence, then the state will cave in, and nothing like fifty percent is required. Half a percent threatening to dig up pavements or set fire to things is more than enough, provided another five or ten percent, sprinkled around all those marginal or potentially marginal constituencies, are willing to back, defend, not condemn, such threats with their votes. Votes, in other words, are violence.
There’s a cynical view of Spanish democracy that says that a politicised judiciary is the expression of the popular will, which recognises that subservience to alternating clans of thieves and liars is the only practical way of running the country. For residents who don’t plan to leave but who don’t see caciquism as the future, I think hope lies–as it has in resistance to Spanish bipartite toleration of construction corruption–in European intervention. The question is how far Europe will be prepared to go, or at what point, as subsidies shrink, the Spanish will tell Brussels to fuck off and instead club together to build Robert Mugabe a retirement palace.
[An earlier version of this post inadvertently appeared late last night in circumstances familiar to drunk bloggers everywhere.]
- Betting on secession
A boring morning: I can’t find anyone who, following yesterday’s Catalan parliamentary elections, is prepared to bet against a ruling coalition
- Why does the PNV hate Fujimori?
Someone just sent me a wild and wildly misleading press release (Spanish) from the PNV, the main legal Basque nationalist party.
- Top searches at the Consejo General del Poder Judicial
Chart-toppers: Mossos who torture.
- Concierto económico for Catalonia, independence for Andalusia?
With observations regarding the possible implications for Extramaduran truckers and flamenco policy.
- Statutory obligation to know Spanish/Catalan, against European rules?
That’s surely the long-term implication for the Spanish constitution and the Catalan statute of autonomy of this European Court of Justice