Grave Error

As a U.S. trained lawyer living in Spain and following Spanish politics, I am often frustrated by Spain’s political debates and constitutional system. In the US, there is a very clear cut definition of the roles of each of the three branches of government and a richly defined and well conceived division of powers amongst each. In the US, we are quite proud of our system of checks and balances, whereby each branch of government is allotted certain, separate and distinct powers with counter-balancing powers alloted to the other branches. This concept is known as the Balance of Powers.

In recent weeks, though, a debate in Spain has risen as to whether politicians should critique the decisions of judges. In other words, whether the Executive or Legislative Branches have the right to criticize the Judiciary Branch and whether, if so, politicians are in fact questioning the very independence of the Judicial Branch. This entire debate has come about due to certain judicial decisions (and pending decisions) with respect to members of ETA. PSOE, the ruling political party, has denounced the PP, the opposition party, for second guessing judges. Although, in my mind, PSOE is only arguing for total deference to judicial independence to keep from getting its own feet wet, PSOE is completely mistaken in it logic because of the very nature of the Spanish constitutional system which is actually in need of either restructuring or greater Executive, and Legislative oversight. Allow me to explain:

First and foremost, in Spain there is no real separation between the Legislative and the Executive Branches. The chief executive is also the president of the congress. Whoever has majority in the congress names the nation’s executive. Members of both houses of congress (senators and deputies) are voted in blocks (from party lists) and not as individuals. This means that the politicians themselves are not accountable to the electorate, but rather the political parties are. This translates into constant political grid lock and bickering. There is almost never any consensus or jointly sponsored bills between the ruling and opposition parties. Even the terminology, ruling and opposition, creates conflict.

Just as incomprehensible is the lack of a separation between certain functions of the Executive and the Judicial Branches. In basic political and democratic theory, the Executive Branch’s primary role is to execute and enforce the law. On the other hand, the Judicial Branch’s role would be to interpret the law. Nevertheless, in Spain (as in other European countries), the Judicial Branch has instructive judges. An instructive judge independently investigates the merits and evidence of a criminal case. As a matter of fact, an instructive judge can even, completely independently upon her own accord, bring criminal charges and initiate a criminal proceedings. In other words, an instructive judge essentially has the same functions as a prosecutor and may, at its own discretion execute the law. Of course, the final enforcement would belong to the police.

But, who is checking the Judicial Branch? In the US where judges only interpret the law, the Executive Branch decides what criminal cases to bring, and has the obligation to investigate and the burden of doubt. The Executive Branch’s power is limited by two important counter forces: first and foremost, the democratic process. If people do not agree with how the Executive is enforcing and executing the law, they vote for someone else in the following elections. And the second balancing power is the Judiciary. Judges listen to the defense and to Executive and decide how the law applies in the case.

The judicial branch is unelected, and for a good reason. This ensures their independence. They do not need to worry what the “street” will say about them after they have rendered a decision. This also protects minorities from the inherent danger of the democratic process — majority will. Nevertheless, the judges also face an important counter-balancing power: the Legislative Branch. If the Legislative Branch does not like the judicial decision, then they simply change the law. And if the Executive Power does not like the law, then they do not enforce it. And although the highest judges are unelected, they are nominated by the Executive and approved by the Legislature.

All good? The Legislature passes laws that represent the will of the people. Then, the president and the president’s ministries (including the prosecutors and police) enforce the law and bring criminal charges in front of judges. The president is also subject to the will of the electorate. Then, the judges interpret the laws that were passed by congress and brought to them by the prosecutors. And we come up with a decision. When we don’t like the decision, we start all over again, but in each step, there was a chance and a second chance to right the wrong.

Not in Spain? The President and the Congress is the same person essentially. The judges are acting like prosecutors. And the opposition is complaining. The ruling party, PSOE, says that we can’t question the judges because it threatens judicial independence. But, with this statement, I am left with three important doubts: (i) if the Executive Branch, which also equals the Legislative Branch, has prosecutors then the Executive is responsible for bringing or not bring criminal charges, making sentencing and parole recommendations, (ii) if the Judicial Branch has the power of prosecutors to investigate and initiate criminal proceedings, then the independent Judicial Branch is in serious need of balancing through the political process — in other words, the people have the same obligation to critique the Judicial Branch as they do elected officials, and (iii) if the outcome of the judicial proceedings are not to the country’s likings, should Congress change the laws?

So, Mr Zapatero, what is it going to be? In my mind and under the Spanish constitutional system, you have five choices:

1. Take prosecutorial responsibility as Chief Executive and President of the nation,

2. Take legislative responsibility as leader of Congress and change the law,

3. Critique the Judiciary because it is a citizen’s duty to monitor all political authority, whenever that authority is making independent and unchecked decisions,

4. All of the above, or

5. Change the constitution to make your country work better.

For now, Mr. Zapatero, you have not taken any. You are doing what you always do, let other people decide under the guise of “consensus”, “dialogue” or “democracy”. Obviously, you don’t know the smallest thing about any of these.

Because to say simply that the Judiciary is independent and that your only role is to sit back and watch is essentially to declare that the Executive Branch is meaningless. All that exists is the Legislature to pass laws and the Judicial Branch to, not only interpret the law, but to execute the law and prosecute criminals. So, basically, that turns the President of Spain into nothing more than the head of the police to accompany criminals from the court house to their cells to the streets.