I confess my perplexity. In recent weeks, the General Council of the Judiciary and the professional associations of judges and magistrates have spoken out on the amnesty bill, with the intention that their opinion be heard by public opinion. In addition, some judges have demonstrated at the door of the courts. With all due respect, do they have the right to do that? Aren’t they violating the separation of powers they claim to defend?
Spaniards can express themselves, individually or collectively, on any initiative of the Government or political parties. Freedom of expression protects us. However, there are exceptions. One, as we know, is that of members of the armed forces, who cannot publicly express their political views 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 article 395 (I spent some time looking for it), the law says that judges and magistrates cannot belong to political parties, nor attend as members of the judiciary in acts of a political nature, and that they will forbidden “to address to the powers, authorities and public officials or official corporations congratulations or censures for their actions”. That is to say, that members of the judiciary cannot praise or criticize the public authorities, nor can they intervene in the political debate, and they cannot do so either individually or collectively through the professional associations of judges and magistrates (article 4 of the regulation that regulates the activities of the associations).
The reason is the same as in the case of the military: the State puts in their hands a power of great scope; in return, it requires them to renounce their use for partisan purposes. However, unlike the military, who have maintained an exemplary attitude for many years, there are judges and magistrates – a very sacrificed profession – who often give opinions on matters of a political nature. We’ve seen plenty of that over the past few weeks. First, a few members of the General Council of the Judiciary, the most conservative, spoke about the amnesty. Afterwards, the full Council and the professional associations spoke, followed by those surprising demonstrations of judges and magistrates, with togas and fists.
I don’t know if I’m getting in where I’m not asked to, but it really catches my attention that this happens. Does the express prohibition of the law not apply to them? For what reasons? If active high-ranking military officers spoke out about the amnesty, they wouldn’t last ten minutes in office, would they? And let’s not say if they went out to demonstrate in uniform at the door of the barracks. So, why can the judges criticize the bill, if the same prohibition weighs on them?
As a citizen, I am baffled. In their statements, the judges and magistrates invoke the defense of the separation of powers, but I do not know if this is a convincing reason. Separation of powers works in two directions. On the one hand, it prevents the executive or legislative powers from interfering in the jurisdictional work of the judiciary. Neither the Government nor the Parliament can order the judges to convict or acquit someone or to rule one way or the other on a case. But on the other hand, in return, judges and magistrates must refrain from interfering in the legislative work of Parliament and in the governing work of the Executive. From here comes – I understand – the prohibition established by the organic law of the Judiciary to express its approval or censure of acts and political initiatives.
I do not want to question the integrity of the members of the Judiciary, but are they sure that the pronouncements of these last weeks on the amnesty bill are not an interference in the work of the legislature? Don’t they amount to an attack against 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 pronounce on legislative projects when they affect them. But among the attributions of the CGPJ (article 560 of the organic law of the Judiciary) is not that of pronouncing when and on what the Council wishes, but in the cases and matters established by law, always at the request of the Parliament or the Government. And it seems to me even more doubtful that associations have this right. Accepting that when they feel that a political initiative affects them they can breach the prohibition established by law, wouldn’t that 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 matters it deems appropriate. Only he is competent to make laws, without any kind of interference. Whether or not these laws are in accordance with the Constitution is something that the Constitutional Court will have to decide in the event that it is required.
I may be wrong, but in recent weeks I could not 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 structure and sowing confusion among citizens, who 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 am full of doubts.