The Spanish judicial leadership (and the left)

From the 19th century to the present day, a serious lack of a genuinely "liberal" political culture has been evident in Spain, especially in the institutions of the judicial leadership. The journey begins with the Cadiz Constitution of 1812, which does not even mention the judiciary, conceived as a subsidiary body of the executive branch. Under Franco's regime, the courts constituted the legal arm of the dictatorship. In fact, the judges of the highest institutions have been more loyal to the goals of the permanence of the State (unity and monarchy) than to the goals of political liberalism and the rule of law (individual and collective rights and freedoms, judicial impartiality, separation of powers).

The transition of the 1970s did not represent a break, but rather a continuation of the composition of the judiciary under Franco. Spanish democracy was born with a very weak foundation. And the situation hasn't changed much. This structural deficit means that Spain cannot be considered a fully liberal democracy.

All states are nationalist. But there are different forms and ways of being so. Judicial decisions in recent years have inferred concepts reminiscent of the Schmittian friend/enemy contrast, sovereignty and the state of exception, the criminal law of the enemy, or the understanding of the "defense of the Constitution" as the mere defense of the state and its inherent nationalism. The Constitution and current legality constitute a serious structural problem when they are ultimately interpreted by courts with little liberal culture and an authoritarian nationalist bent. And we are talking about Spain, one of the states with the strongest components of national pluralism (national majorities and minorities) among democracies.

To live in a full democracy, not burdened by a past that fosters illiberal behavior (values, practices), it would be necessary to profoundly reform the structure of the five most important judicial institutions in the State: the Supreme Court, the General Council of the Judiciary, and the National Court (a court in continuity with the dictatorship's Public Order Tribunal). To these five institutions, we must add the regulation of a Constitutional Court tainted by the shifting partisan colors between the two main Spanish nationalist parties and which often acts as a third parliamentary quarter.

In practice, part of the judicial leadership acts in collusion with the deep state (deep state), along with performances by politicians, senior ministerial officials, and senior police and Civil Guard officials. One deep state which has the complicity of a good part of the media in the state capital.

The list of illiberal actions is not short. Notable in this century are the numerous cases of espionage against politicians and citizens (Pegasus), the political and police-related Operation Catalonia, fabricated reports against Catalan politicians (Mas, Trias, etc.), self-serving leaks in trials, the lack of interest in clarifying the CNI (secret service) involvement in the attacks, the failure to comply with the amnesty law, etc. Illiberal state nationalism can also be seen in the ridiculous concepts, tortured arguments, and arbitrary sentences imposed on the Catalan leaders of the Trial.

Then nothing ever happens. The impunity for such behavior is total. In Spain, prevarication seems to have become a legal sport. It's a crime with zero effectiveness. The formula for this "common evil": illiberal political and legal decisions plus practical impunity. Something that is once again evident when, in Congress, politicians responsible for crimes can mockingly raffle off the comments and questions of a powerless opposition.

In terms of political parties, the Spanish right (PP, Vox) endorses this authoritarian behavior. And the left (PSOE, Sumar, Podemos) doesn't dare to confront it, even when it too is affected. It's a left that in practice remains submissive in the deep state, sometimes remaining a superficial victim. In relation to Catalonia and the national pluralism of the State, its supposed emancipatory character evaporates. On the national question, that is, on Spanish national questions, the Left does not combat the degradation of the rule of law. The expression "Spanish Left" often turns out to be an oxymoron.

The comparative politics of democracies offers solutions for the recognition of national pluralism and the political accommodation of minorities: for the regulation of different national symbols, collective rights and institutional frameworks, powers of self-government—including at the European and international levels—, financing and infrastructure, etc. There's no need to invent much. Nor does it need to be invented in relation to a liberal democratic judicial system. The Spanish left is mentally very backward. It needs a radical update, in emancipatory terms, of what it means to operate within the rule of law of a plurinational democracy.

An easy prediction: the independence movement will return. With Spain's current political landscape, it's inevitable.