In Spain, it's not just that they are not meticulous about the separation of powers, but also they don't make any attempt to hide the fact. The political agreement between Spain’s main parties for the renovation of the presidency of the governing body of the judiciary (CGPJ) is evidence of what I'm saying. Although this pact has now fallen through, we should not be fooled. The evil exists and the perversion continues.
Marchena did not resign to defend his independence. The PP did not break the pact because the judiciary might be affected. And the PSOE government does not regret the damage that political interference was doing to judicial credibility.
Marchena resigned because he was caught with his pants down. The PP reneged on the agreement to make it seem like it was the victim of a deception by the Justice Minister and not one of the executioners of the separation of powers. And Pedro Sánchez, faced with the shocking situation of the last few hours, made an appeal —so trite it was totally unnecessary— to the responsibility of the parties with statesmanship and the will to govern.
The decisions of Spain’s General Council of the Judiciary are, more than ever, under suspicion of partisanship
It's necessary to say it clearly: if Mr. Cosidó had not sent his text message and it had not been leaked to the public, Marchena would not have declined the offer to become president of the CGPJ. Marchena's resignation does not exempt him from anything or restore his honor or the right to be perceived as an independent judge. He is also directly responsible for this entire political farce aimed at gaining political control over the Governing Body of the Judges and, with it, the two top courts that operate in Spain, the Supreme Court and the National Court.
The chain of decisions that hangs from this body is immense and easily leads us to the rulings of the Supreme and the National Courts. The appointments of the magistrates for the two Courts, the composition of the government of the various courtrooms of the Supreme Court and the National Court, the resolution of incidents, and any other decision that allows their dynamics to be altered, stems directly from the CGPJ. And the presidency of the CGPJ is decisive. In fact, it is an all-powerful presidency, as has been seen in the case of the mortgage tax ruling. It is the real power. A power that embraces everything that interests it and modifies everything that bothers it. It is the embodiment of an emerging reality, the “robe-cracy” [a government of judges], which puts the principle of democracy in checkmate, and that is fed in return by the existing "particracy", well-known since 1978. Two realities, the power of the judicial elite and the political parties, which have immense powers and often avoid even the slightest democratic control.
The decisions of Spain’s General Council of the Judiciary are, more than ever, under suspicion of partisanship. Perhaps if you create a different mechanism for election of the members of the CGPJ, it will not be so in the future. It is indisputable that institutions can recover their honorability if the people who have harmed them change, the mechanisms for selection of their leaders are modified, and meritocracy is guaranteed in a public and transparent candidate evaluation process. In contrast, the people who have been involved in scandals can hardly expect any sympathy.
Judge Marchena missed his chance to be considered honorable on the day that his name came to light as a result of the deal between PSOE and PP. In fact he was the one anointed to carry out all political control over the judiciary. That day, and not on Monday, was when he should have stated that he was not an instrument at the service of politics and that in order to preserve his independence, prestige, and honor, and especially that of the General Council of the Judicial Branch and that of the Supreme Court, he would renounce his appointment.
In the meantime I will continue in prison, and I will remain persuaded that, when we leave this State behind, we will be able to build a country where Justice and Law, where freedoms, are not subject to the whim of the powerful
He did not do that. I do not know the reasons why he was silent. But in this case his silence made him fully complicit in the established pact. The problem is not the senator and PP spokesman nor his text message; the problem is what Cosidó explained. And, Marchena already knew all that long before Cosidó made it known via his cell phone. The choice and publication of the name of who should preside over the CGPJ is inappropriate for political parties, basically because the law does not give them this responsibility. Marchena knew this, yet he accepted the game for weeks. He is as guilty as the PP and the PSOE of conspiring to alter the spirit of the law that guarantees the independence of the judiciary.
Will Marchena be able to look me in the eye when I sit in the dock, knowing as everyone knows that his actions will be partial and partisan, and that they will influence the entire Second Courtroom? I know that I will be able to look at him face to face.
And in the meantime I will continue in prison, waiting for justice to be done. And I will remain persuaded that, when we leave this State behind, we will be able to build a country where Justice and Law, where freedoms, are not subject to the whim of the powerful. I have been held in prison unjustly for more than 400 days. I will hold out as long as it takes, but they will not silence me. I'm not afraid of them.