Spanish judicial independence

Judge Garzón would be ineligible for appointment to the judiciary in England and at the European Court, so why is he tolerated in Spain?

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.]

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  1. But, on the other hand, Spain does not have judges (and bishops for that matter) in its Senate. And judges are not appointed by a member of the Cabinet.

    Goldsmith’s problem with his Iraq war advice was that he was both a politician and a lawyer, serving two masters.

  2. Bacon’s very simple: judges should interpret law (and the intentions of the lawmaker, to the extent that they are still relevant), not make it. It would be interesting to know what he’d have thought of the Human Rights Act. I can’t remember what he said about bishops, but a few in the Spanish senate might liven it up a bit.

  3. The problem here Trevor, is that the basic premise on which you base the rest of your argument doesn’t stand up. Firstly, it was not Garzón that illegalised the Basque parties, it was the Supreme Court. Garzón was involved in the case but there is no reason to imagine tht the outcome would have been any different if he had not been involved. These illegalisations have been going on for years and take place in electoral periods because that’s precisely when the parties involved attempt to present candidates.

    The second half of Baltasar’s alleged electoral service doesn’t do much better. The real contest in the Basque country is between the PNV and the PSE, nobody has seriously expected the PP to do better than the PSE at any point in this election. Indeed, if Patxi Lopez gets more votes than the PNV his best bet for a coalition partner could turn out to be the PP, so it’s not necessarily in his interests for PP voters to stay at home. Perhaps if you’d used the example of Galicia you would have the beginnings of an argument, just lacking the evidence to support it.

    Then your comparison with other legal systems leaves a lot to be desired. At least in the not too distant past judges in the UK were being appointed by an opaque system which appeared to be based on “you’ve been a QC for a few years now and you seem like decent chap so how about a position on the High Court?” In what way is that system better than one which involves professional judges? As for the separation of powers, just take a look at the scandal over the Saudi arms deal case. There is far more mythology than reality in the separation of powers because in the end the political power has supremcy over the judicial one. The notion that members of the judiciary and people from the world of politics don’t mix socially in the UK is based on what? Perhaps Cherie Blair sits her legal friends at the opposite end of the dining table from Tony’s political ones – with the weird mystics in the middle? Of course you’re implying that Garzón and Bermejo have colluded in some way, but again you’re lacking any evidence of it. You should read the rest of the Escudier article you quote from, there are far easier and less public ways to to do it than joining an Andalucian hunting party! I almost prefer the version you posted on Saturday night.

  4. It’s a perfectly reasonable supposition that the removal of ETA’s representatives and the weakening of the PP will help the PSE come to power in the Basque elections. It is generally believed that those who would have voted for ETA will abstain rather than vote for the PNV, which, apart from the Ibarretxe faction, seems to be quite content with the idea of a coalition with the PSE. Likewise, the PSE, although it is now a nationalist party, will benefit from the debilitation of its main competitor for the non-nationalist vote. It has repeatedly said that it will not pact with the PP and its policy positions, particularly with regard to the imposition of national identity, are much closer to the less extreme sector of the PNV.

    I’m not sure whether it’s your slavish allegiance to the PSOE or simply a lack of interest in or understanding of democracy that blinds you to the benefits of a system where those who make and implement the laws are subject to independent control. British justice is organised on a much more informal basis than Spanish justice, but it benefits from a consensual reluctance to twist it for party purposes. It may for all I know be theoretically possible in England for a senior judge or the head of the CPS to win a seat in parliament with speeches telling the opposition “we’re going to bury you” and then leave parliament to return to his job as if nothing had happened, but I can’t imagine it happening. You’re rather short of examples re the corrupt nature of British justice (I at least produced Judge Kelly), and implying that the Blair tandem is a demonstration of the corrupt nature of British justice is rather silly: our Cherie’s a QC, not a judge, and her use of the HRA did considerable damage to our Tony.

    A separation of powers is never going to be absolute, but if you’re going to make democracy work then you need to attempt it, and in Spain neither major party seems interested in that happening.

    The problem with programming systems to stop one blogging drunk is that Google makes cracking them pretty easy.

  5. Trevor, you’re still ignoring my point. It was not Garzón that illegalised the Basque parties and I would argue that even if he had died 6 months ago, say in a tragic hunting accident, the outcome would have been exactly the same because the Supreme Court would still have ruled the way they did. If you want to accuse him of something, it would be far more valid to ask whatever happened to the Baltasar Garzon who spoke out a couple of years ago about not having an endless succession of illegalisations. The principal problem with Garzon is not his political allegiances.

    In any case one of the two legs for your case against him doesn’t stand, and the other – that he started the case against the PP to affect the result of the regional elections – is highly arguable. The case began in late 1997, and I have seen reports suggesting that the silent part of the investigation would have continued longer if those under surveillance hadn’t been tipped off about it. As for the hunting trip with Bermejo (and many others), where is there even a tiny bit of evidence to suggest it has any relation with the case against the PP? The main reason why the PSOE keeps quiet about any possibility of a pact with the PP in the Basque Country is because they know that the PNV would use that idea to frighten nationalist voters to the polls, but if the PNV comes second and refuses to play ball then who else is there as a partner?

    Cherie Blair is only a QC? Not since 1999 she isn’t. The point of the example was not particularly about her or Tone but simply because I don’t believe that there isn’t significant social interaction in the UK between the political and judicial sphere. As for examples from the UK, I gave you a monster of an example concerning political interference in the judicial process and you act as if you haven’t seen it. You are also not taking into account the fundamental differences between systems where judges initiate and investigate cases and those where they simply hear them.

    Oh, and I don’t have any allegiance at all to the PSOE, slavish or otherwise. Maybe one day if I start using my web page as well to raise money for a political party we can revisit the question of our respective allegiances. Until that time such claims fall into the same sack as the rest of the straw man.

  6. I used the word neutralise, which is what Garzón is doing, not illegalise, which is not the work of an investigating judge.

    Your implication that Garzón went against the PSOE line a couple of years ago is false – he danced the Zapatero-ETA can-can along with Interior and Justice, saying that these guys just needed to be given a bit of time to work things out.

    What you still don’t seem to understand is that if people are to have faith in their justice system, it is not acceptable to have judges who have identified themselves clearly with one political party, and it is even less acceptable to have them running investigations into opposing political parties, and even less so during elections. It doesn’t matter a fig when the investigation started. Garzón simply shouldn’t be involved in it, and he shouldn’t be a judge.

    You say you gave me “a monster of an example concerning political interference in the judicial process [in England] and you act as if you haven’t seen it.” I still can’t find it: maybe you could enlighten.

    I’m honest about my support for UPyD. What’s withholding you from doing the same re the PSOE?

  7. “I’m honest about my support for UPyD. What’s withholding you from doing the same re the PSOE?”

    Nothing except for the fact that I don’t support them – a bit right wing for my taste. Calling me dishonest because I won’t support the party you want me to support doesn’t seems a bit “Saturday night” if you ask me. It seems the straw man is getting bigger and fatter, because I didn’t even try to imply that Garzon went against the PSOE a couple of years ago. You’re mistaking what people say or think for what you prefer to interpret them as thinking, just as the original post starts with a conclusion and then tries to bend reality to fit it.

  8. So you’re a fan of Cayo Lara, who can’t tell Marx from a piss-poor parody, and IU, which supports Castro? Nuff said.

  9. “You’re mistaking what people say or think for what you prefer to interpret them as thinking.”

    I know it’s a repeat but it seems to fit your reply quit nicely.

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