Amnesty and separation of powers

I confess my perplexity.

Oliver Thansan
Oliver Thansan
26 November 2023 Sunday 03:46
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Amnesty and separation of powers

I confess my perplexity. During the last few weeks, the General Council of the Judiciary (CGPJ) and the professional associations of judges and magistrates have spoken out on the amnesty bill, with the desire that their opinion be heard by public opinion. In addition, some judges have demonstrated at the doors of the courts. With all due respect, do they have the right to do so? Aren't they violating the separation of powers that they claim to defend?

We Spaniards can speak out, individually or collectively, on any initiative of the Government or political parties. Freedom of expression protects us. However, there are exceptions. One of them, as we know, is that of members of the armed forces, who cannot publicly express their political opinions or join political parties. The reason is simple: the State puts a very considerable power in their hands, the use of force; In return, it requires them not to use this power for political purposes.

Another exception, according to the organic law of the Judiciary, are judges and magistrates. In its article 395 (I have spent some time looking for it), the law says that judges and magistrates cannot belong to political parties, nor attend events of a political nature as members of the judiciary, and that they will be prohibited from “directing to the powers, authorities and public officials or official corporations congratulations or censures for their actions.”

That is, members of the judiciary cannot praise or criticize public powers, nor can they intervene in the political debate, and they cannot do so either individually or collectively through professional associations of judges and magistrates (article 4 of the regulations that regulate the activities of associations).

The reason is the same as in the case of the military: the State puts powerful power in their hands; in exchange, it requires them to renounce its use for partisan purposes.

However, unlike the military, who have maintained an exemplary attitude for many years, there are judges and magistrates – a very sacrificial profession – who frequently give their opinion on matters of a political nature. Over the past few weeks we have seen it in abundance. First, a few members of the CGPJ, the most conservative, spoke out about the amnesty. Then the full Council and the professional associations spoke, followed by surprising concentrations of judges and magistrates in togas and fists.

I don't know if I'm going too far, but I'm very surprised that this happens. Does the express prohibition of the law not apply to them? If senior active military commanders spoke out about the amnesty, they would not last ten minutes in their positions. And if they went out to demonstrate in uniform at the door of the barracks, let alone. So why can judges do it, if the same prohibition weighs on them?

As a citizen I am baffled. In their statements, judges and magistrates invoke the defense of the separation of powers, but I do not know if this is a convincing reason. The separation of powers works in two directions. On the one hand, it prevents the executive or legislative branches from interfering in the jurisdictional work of the judicial branch. Neither the Government nor Parliament can order judges to convict or acquit someone or to rule one way or another on a lawsuit. But on the other hand, on the other hand, judges and magistrates must refrain from interfering in the legislative work of Parliament and in the government work of the Executive. Hence – I understand – the prohibition established by the organic law of the Judiciary to express its approval or censure of political acts and initiatives. I do not doubt the good intention and integrity of the members of the judiciary, but are they sure that their statements in recent weeks on the amnesty bill are not interference in the work of the legislature? Don't they represent an attack on the separation of powers?

Some analysts consider that the General Council of the Judiciary and the associations of judges and magistrates have the right to rule on legislative projects when they affect them. But among the powers of the CGPJ (article 560 of the organic law of the Judiciary) does not include that of ruling when and on what the Council wishes, but in the cases and matters established by law, always at the request of Parliament or the Government. . And it seems even more doubtful to me that associations possess this right. Wouldn't accepting that when they feel that a political initiative concerns them they can violate the prohibition established by law be opening the door to corporatism?

The separation of powers does not mean that Parliament cannot adopt rules on the judiciary. Parliament is sovereign to adopt the rules it deems necessary on the matters it considers appropriate. He alone is responsible for making laws, without any type of interference. Whether or not they are in accordance with the Constitution is something that the Constitutional Court must decide, if required.

Maybe I'm wrong, but during the last few weeks I couldn't help but wonder if, with their attitude, the members of the CGPJ and the judges and magistrates who have spoken publicly are not damaging the constitutional framework and sowing confusion among citizens, who They may lose confidence in them as arbiters of their legal problems when they see how loosely they interpret the law that governs their behavior. Aren't they making political use, contrary to the law, of the power that the State grants them? I'm full of doubts.