If you haven’t already, I'd recommend you go and see Steven Spielberg's Pentagon Files. Apart from the gripping plot and first-rate acting (Meryl Streep and Tom Hanks), it tells a story which shows how important it is for the rule of law to possess two elements: 1) a justice system which is truly independent from the executive branch, especially its higher organs (the Supreme Court) and 2) a free press that does not hesitate to criticize and oppose government decisions despite the interests of pressure groups. Without these two elements the rule of law is empty rhetoric. Unfortunately, this is a current concern in Spain.
In addition to these two elements, which are part of the principle of the separation of powers, there are others which contribute to the correct functioning of the rule of law (which I have mentioned in other articles). However, given the current circumstances, I would be satisfied with just these two conditions being met. The Spanish case shows us, firstly, judges from the highest judicial circles (the Constitutional Court, the Supreme Court, the General Council of the Judiciary) who are submissive to the executive branch and the political parties and, secondly, news outlets —especially the Madrid-based ones— who are also submissive to the central power.
Let us take a look at the judicial power. One of the prices to have been paid in the political transition of the 1970s and 1980s was the continuity of the judicial power of the Franco regime. In the 1980s, for example, a profound reform of the military was undertaken (led by Narcís Serra). However, nothing similar occurred to Spain’s judges, the structure and the organization of the judiciary. The practices of the Franco dictatorship continued virtually unaltered. The consequences are apparent more than forty years later.
There is ample evidence. Let's examine two recent issues related to the investiture of President Puigdemont.
1. The Supreme Court (SC). It is embarrassing to read judge Llarena’s "reasoned" decision (if one can call it that) not to issue an arrest warrant for the president when he flew to Copenhagen to give a talk: the order was not issued, it is said, in order not to play into Puigdemont's alleged strategy of wanting to be arrested and, therefore, provoke a situation whereby he would have the same rights (again, if one can call it that) as the elected MPs who are in prison. The decision is based on "political" criteria which are far removed from the supposed legal considerations involving a person who is subject to an arrest warrant in Spain (though only in Spain, since the same judge made a fool of themselves by having to withdraw the European Arrest Warrant when it became known that the Belgian judiciary would not authorise the president's extradition). It appears as if the SC judge wishes to act more as a spokesman for the Partido Popular than as a member of an impartial and independent judicial body.
2. The Constitutional Court (CC) has two issues on which it must rule: whether or not to accept the central government's appeal on Puigdemont’s candidacy to preside over the Catalan government, and the appeals filed by Podemos and the Parliament of Catalonia’s against the application of Article 155. These are two new litmus tests as to the court’s professionalism and independence.
For the moment, the court has only decided in an incidental and rather surreal way on aspects of the first appeal. The CC has delayed its decision as to whether it will agree to the appeal for 10 days, without making any declaration as to changes in the timetable of the investiture (!), a questionable decision in terms of procedural professionalism. In contrast, it has produced certain "precautionary measures" out of thin air, even though it is unclear whether the underlying matter will go ahead or not (!). More surrealism. In addition, the CC didn’t hesitate to pass the hot potato to the SC (judge Llarena) over the question of whether Puigdemont is allowed to attend the investiture session or not. In other words, the CC rules that a judge can decide on an MP’s suitability to be elected. On what law is such a claim based? It appears as if there is no such law. An MP who has been elected can’t be a candidate? In a liberal democracy a judge can never "give permission" for a candidate to stand in a parliament. It is another consequence of the separation of powers. Here one cannot enter into criminal matters, since no firm judicial ruling has been issued. Such a decision is typical of an authoritarian state. It is also inadmissible that, before Parliament has had a chance to decide whether to opt for a telematic or a proxy vote, the CC should rule that both are illegal. This is another violation of the separation of powers. Parliament is reduced to a provincial side-show. More authoritarianism.
The current CC seems more anxious to issue unanimous resolutions than to ensure it upholds the law. In terms of the comparative politics of Western states governed by the rule of law, Spain is a disgrace. It has power, but in such decisions, it is not a liberal-democratic power. The CC acts as an arbitrary referee. To the loss of prestige and delegitimization of the last twenty years must be added an authoritarian drift which will be hard to undo.
A question for the pro-independence parties: given the current state of affairs, what's best for Catalonia? Regain control over the autonomous institutions when they know they will continue to shrink, due both to the loss of control over their finances and the permanent threat of further applications of Article 155? Or instead maintain and increase the current tension at the internal and international level, without giving the image that they are accepting the state’s repressive measures? I know it is not an easy decision. Both answers have clear costs and uncertain benefits. And, once again, there is no third way.
The 21 December election results were clear. Are there institutional solutions? Yes. Will the Spanish state implement them? No. Catalonia is witnessing extraordinary events. Is not putting up a fight a rational decision, when one knows they will continue to be beaten (perhaps not as hard)? Dignity is also part of a country’s identity. Don’t forget to go and see the movie I mentioned at the beginning. It’s worth it. It is also good to compare it to what’s going on here.