Ángel J. Gómez Montoro :: Ángel J. Gómez Montoro
Full Professor from Constitutional Law
"It is not difficult to understand that those in power have little enthusiasm for limits; and it is also understandable that political parties like even less to lose elections and go to civil service examination. But not respecting the constitutional limits and putting the permanence in power as the only goal, at any price, is to undermine the instructions of democracy, at least of the democracy of the constitutional State: the one that guarantees the fundamental rights or the power subjected to the law."
The English often say that the treasury and the police must remain outside the partisan game of government precisely in order to have guarantees when they cease to govern. Beyond British pragmatism, what lies behind this statement is the certainty that democracy presupposes alternation in power and the need for institutions that remain outside the political game. But there is an even more relevant argument, and that is that democracy -the authentic one, the one that does not bear adjectives- implies both the government of the majority and the limitation of power, also that of that same majority. It presupposes a system of checks and balances (the famous 'checks and balances' of American constitutionalism) that remedies the temptation of all power which, as Montesquieu pointed out, is none other than to expand without limits.
Hence the importance of the division of powers - especially between political power and judicial power - but of a prior and even more relevant division between constituent power and constituted power: no constituted power, not even Parliament, is above the Constitution, which is precisely the instrument that guarantees that power is limited. Hence the special and transcendent position of the Constitutional Court.
It is not difficult to understand that, by contrast, power has little enthusiasm for limits; and it is also understandable that political parties like even less to lose elections and go to civil service examination. But not respecting constitutional limits and setting the permanence in power as the only goal, at any price, is to undermine the instructions of democracy, at least of the democracy of the constitutional State: the one that guarantees fundamental rights, the protection of minorities or power subject to the law. Therefore, those who do not respect the limits of their own power, who oppose majorities and the rule of law, who try to silence public opinion and control the institutions called to act as a counterweight, are not democrats. That is why there is little democracy in the so-called popular democracies which, in reality, do not imply either that the people govern or that a strong Parliament represents them, but rather that, as has been demonstrated time and again, the latter ends up being the puppet of an executive which, at the same time, is in the hands of a president with caudillist tendencies. And, unfortunately, in these times of the resurgence of populism, it does not seem necessary to bring up examples.
The above statements are well known and recalling them would be superfluous if it were not for the fact that we are living in times in which they are being questioned, at least with practices that are deteriorating our institutions to limits that seemed unthinkable not so long ago. What we experienced in December has shown to what extent we can no longer consider ourselves immune to risks that seemed to us to be typical of countries with barely consolidated democracies. Of course, if we have reached this point, it was not by chance but as a consequence of a progressive deterioration: the distribution of quotas in the appointment of members of constitutional bodies, the systematic delay in their renewal, the abuse of the decree-law, but also the understanding of parliamentary majorities as monolithic blocs in which no one can disagree (loyalty to the party above what is considered good for the citizens), the disqualification of the courts -including or rather starting with the Constitutional Court- in the face of resolutions contrary to one's own interests, etc., have been a breeding ground without which we would not be in such a worrying situation.
And it is certainly worrying because, although the consensus in the committee to elect magistrates of the Constitutional Court has made it possible to overcome the serious crisis of December, the institutional deterioration has never gone so far: the reforms of organic laws regulating constitutional bodies carried out not only without consensus among the majority parties, but in an absolutely partisan and improvised manner (the spectacle with the reforms of the competences of the committee General of the Judiciary can only be described as regrettable), the abuse of the bill to avoid possible negative opinions of the bodies that, for technical reasons, the attempt to affect the status of the Constitutional Court by means of an amendment approved monolithically against the opinion of the legal services of the Chamber (and of any jurist with a minimum knowledge of constitutional jurisprudence) or the situation in which the Constitutional Court has been placed are serious facts that evidence a deterioration of our democracy.
Can this be fixed? I am afraid there is not much reason for optimism. But if our political actors really have the will to fix it, it would be enough to start doing things right with the committee General of the Judiciary: Mr. Speakers of the Parliamentary Groups, negotiate and propose candidates for the renewal of the committee; instead of distributing quotas and choosing like-minded candidates, look for profiles on which there can be agreement, thus respecting the will of the constituent; Madam President of the congress and Mr. President of the Senate, fulfill your obligation and convene the session to elect the members of the committee; future candidates, do not accept that they impose the name of the president or the president that you have the right -and the obligation- to elect.
And we could continue with the Constitutional Court, which must ensure as soon as possible that the latest crisis remains an isolated episode, that it does not undermine an institution that is part core topic of the system. Gentlemen magistrates, do not allow yourselves to be pigeonholed into blocks and do not accept arguments other than those derived from the Constitution itself and the rest of the block of constitutionality.
It is quite possible that things do not happen as I have just pointed out and that we continue in a drift that is putting at risk what we have built together in these almost five decades of democratic regime. But, those who do so and those who support it, must at least be aware of the seriousness of their actions; and those of us who observe it, have the obligation to do our best to stop the institutional deterioration.