Justice and politics

The High Court of Justice of Catalonia has not missed the opportunity to enter the elections campaign. It seems that the court wants to force an election call at a time of maximum hospital occupation and high circulation of the virus. They appeal, ironically, to the need to put an end soon to the institutional provisionalness that they themselves provoked with the disqualification of president Torra.

The court is appealing to an alleged "public interest" to precipitate the elections. All representatives in Parliament agreed, on paper, to postpone the elections. However, the judges give themselves the capability, surprising to say the least, to interpret the public interest over and above what the representatives of the citizenry think.

Nevertheless, we must not be naive. Looking at the High Court's track record, it is not hard to believe that the magistrates want to align themselves with the interests of the Spanish government (and state), which is making a very strong bid for Salvador Illa to be the next president of the Generalitat. And, in this operation Illa, it seems that an electoral delay represented a very big risk, for some reason that we do not know. There is no need to resort to conspiracy theories, only an alignment of interests is needed, which in this case is evident and easily opens the door to spontaneous coordination mechanisms. Fortunately, however, the success of these operations is decided at the ballot boxes and in Parliament, as it happened in 2017, when Inés Arrimadas was candidate.

Context is important in order to interpret things. On the same day that it maintained the 14 February elections, the High Court of Justice decided to disqualify the Minister in charge of organizing them, for his collaboration -when he was mayor of the town of Agramunt- with the Catalan independence bid referendum of October 1st. It should be remembered that several courts had previously closed many similar cases against other mayors. But Minister Solé is a big game political piece. Previously, the same court had disqualified president Torra for a delay in taking down a banner, members of the Parliamentary Bureau for allowing debates, and president Mas, Joana Ortega and Irene Rigau for organizing the 9-N.

With this background, then, what has happened this week should not surprise us. However, we do have to be concerned. Because this judicial activism, which persecutes and disqualifies public officials for minor matters and forced interpretations because of their ideology, is the main threat to democracy in Catalonia. The judiciary has also become accustomed to imposing decisions on the other democratic powers, in areas as diverse as the management of the pandemic or the percentages of language use in education. And it often does so with very evident ideological biases.

The case of languages in education is perhaps one of the most illustrative examples in this sense. We only have to compare what the High Court resolves in Catalonia with the High Court of the Valencian Country: while in Catalonia it forces a percentage of 25% of Spanish, in the Valencian Country the judges rejected a decree that provided for a system similar to the one they want to impose in Catalonia. That is to say: what they impose in Catalonia they reject in the Valencian Country, because in one case the situation of the Catalan language worsens, and in the other, it improves.

All this judicial activism is, of course, highly technical in legal terms, and with a very particular ideological discourse. It is based on a very narrow conception of the rule of law that is the predominant one in Spanish juridical culture. It is a strictly procedural conception, which forgets the substantive dimension of the rule of law. And it is based on a mythology according to which what judges do is merely a mechanical application of the law. From this perspective, any decision taken by the judiciary is legitimate and correct if it has formally followed the procedures. And any critical argument about the substantive dimension of judicial decisions is rejected as an attack on the rule of law and democracy. However, as is well known, this strictly procedural conception allows -and has historically allowed- for many rights' violations and many authoritarian systems to be accommodated.

And that is why, despite the fact that the judiciary decides to take an activist role, and to widen its radius of action as much as it can with such obvious ideological biases, we often read that decisions cannot be questioned. Because to do so, they say, is to want the government and the legislature to be able to act without limits. And then, some jurists and politicians (or former politicians) with little imagination resort to effective but not very rigorous comparisons with other cases, where threats to democracy and violations of rights come from the government itself, such as in Hungary.

This is an interestingly reductionist view of the issue, which is largely explained by the ideology that activist judges protect. The proper functioning of democracy obviously requires a balance of powers. And this calls for judicial control of the other powers to protect rights, it is clear. However, democratic monitoring of the behavior of the judiciary is just as important. Because in order to preserve a minimum quality of democracy, the governance of judges would not have to expand uncontrollably over the decision-making spheres of the powers that are democratically elected. And neither should it act with the manifest partiality with which it systematically acts in Catalonia. And when the judiciary does this, it must be able to be questioned and subjected to political criticism. Because this political criticism of a politicised justice that enters politics on a daily basis is not only legitimate (of course), but also highly convenient, and even necessary to preserve a minimum democratic quality.

Jordi Muñoz is a political scientist.