The former Spanish constitutional judge Prof. Dr. Joaquín Urías, professor of Spanish constitutional law, published an explosive article on publico.es on 15 January 2023 under the title «Hay que meterle fuego al Tribunal Constitucional (o no)», which vividly illustrates the desolate situation of the Spanish legal system and describes conditions that are still not widely known in the world. The most important passages are reproduced below in translation.
«The progressive majority has regained control of the Constitutional Court. The government and the media that support it are cheering like children with new shoes. The right, on the other hand, who controlled it until a few days ago, have launched a campaign to discredit and delegitimise our highest constitutional body because a toy has been taken away from them.
Both sides are irresponsible. They are not aware of it, but by putting their own interests above those of the country and its citizens, they are putting the entire democratic system at risk. So much so that one wonders if it would not be better to simply abolish the Constitutional Court. Not because it is politicised, which is no bad thing, but because it may no longer serve any purpose other than to legitimise a system that is increasingly unfree. is. The future of the country depends to a large extent on the judges who are now in the majority, and on their personal responsibility. And one can doubt that they can do justice to this task.
The political choice of the members of the Constitutional Court is quite reasonable. A body that has to make constituent decisions needs direct legitimacy. [...]
But there is also a legitimate expectation that judges will act independently beyond these ideological orientations, apply the constitution honestly and not take orders from anyone.
The problem in Spain, then, is not the political choice, but the fact that the major political parties are electing more and more people close to them, with limited legal and intellectual ability, as judges whose present and future depend on their ability to maintain the favour of these parties. They do not act as free judges, but as pawns subject to the orders of one party or another, which does not hesitate to demand their support for even the smallest of their tactical interests. Such a court is not only irrelevant, as one of Spain's best jurists recently warned, but becomes a danger to democracy because it formally legitimises injustice and oppression. A court with vassal judges, as we have had for two decades, is the greatest conceivable danger to our democratic system. As an example, two important points: the damage that the Constitutional Court does to the territorial system and the erosion of citizens' fundamental rights.
Spain's great constitutional failure was undoubtedly the territorial division of the state. The 1978 Constitution was unable to pacify the so-called 'regional question'. The constitutional text provides for a virtually federal system in which the areas with the strongest sense of identity can enjoy a high degree of self-government. The people who live in the Basque Country, Catalonia, Galicia, Andalusia, the country of València or the Canary Islands should have been able to decide their future on a daily basis, to make their own rules and implement their own policies without having to submit to decisions from Madrid on a daily basis.
If this has not happened, the Constitutional Court is to blame. Given the constitutional ambiguities, this decidedly centralist institution has been curtailing the political and regulatory powers of the autonomous communities as much as possible for decades. This constant drive to turn Spain into a centralist state has not stopped, whether controlled by progressive or conservative majorities.
On this point, the vast majority of constitutional judges have shamelessly adopted the intellectual inadequacy of a stale and outdated Spanish nationalism, incapable of accepting something that is undisputed in the United States of America or in Germany, to cite just two examples: a country can be strong and united even though the different territories that make it up have their own rules of law that correspond to the needs and ideals of their people. Solidarity between territories, fiscal justice or respect for territorial identities unite more when it comes to a common project than unification and coercion from the centre.
A constitutional court with low-level pawns subservient to the interests of the party that promoted them, rather than with independent and intellectually sound judges, will continue to be a centralist court even if it is subordinated to the orders of the government rather than those of the opposition.
Moreover, if there is anything that marks the decline of the Constitutional Court in the last two decades, it is its eagerness to place power and its privileges above the rights of citizens. Civil servants who are only out to please and keep the powers that appointed them happy can hardly do their real job, which is to put barriers in the way of those very powers.
The essence of democracy is the rights of citizens, which make them free and equal by allowing them to change from the role of subjects to that of sovereigns. In the face of the arbitrariness of public power, citizens have a protected space of freedom. In a democracy, people have the right to speak their minds, even if it bothers those in power. And they have the right to occupy the streets and publicly show that they oppose any issue, no matter how bad it may be for the government in power. And if they commit an illegality, they have the right to be tried only after a trial with all the necessary procedural guarantees, even if powerful people want to punish them. Rights mean that immigrant children can go to school, no matter what the authorities think about it. All these things and much more ultimately depend on the Constitutional Court.
If instead of judges and prosecutors we have stooges from one political party or another, what will happen, as in Spain, is that they will rule in favour of those in power in all these cases and degrade the quality of our democracy with impunity so as not to upset the masters of their fate.
The major political parties and most of the media are portraying the renewal of the Constitutional Court as a battle between the right and the left to control the direction of its decisions. The right wing is furious that the left wing, which is now cheering, has taken control. This is an unacceptable prospect.
If the political wrangling of the last few months only serves to change the master to whom the judges serve as vassals who care more about their personal interests than the future of the country, then it is the death blow to our democracy.
We need an independent constitutional court. The tenured judges can be progressive or conservative. It is good to know where each of them stands, and it is reasonable that the tendencies that have been shown to have a majority in the elections should prevail, because that way we can guide the sensibility with which they approach the interpretation of the Constitution. But if they are not independent, if they will never dare to stand up to the party and government that put them in office, it does not matter how they think: we are just as lost. If they want to continue acting as mouthpieces for their master, the best thing to do is to abolish the Constitutional Court. Let us hope that this will not be necessary!»
Why is there no audible criticism in the European Union of the untenable conditions in Spain, of the multiple human rights violations against the Catalan people, the 'Jews of Spain'? Why do democratic parties from other countries form a coalition in the European Parliament with ultra-right National Españolists who act against the mandatory law of the two major human rights covenants of the United Nations? Why is the Spanish government not being put in its place at European level?
The Catalan people, their political leaders and leading figures of Catalan civil society are being subjected to repression in Spain that is unprecedented in Europe. The Catalan nation is oppressed as a minority in the Spanish multi-ethnic state. The Catalan parliament was dissolved in October 2017 in violation of organic law of the Spanish constitution, and the president of the parliament was imprisoned. The democratically elected Catalan government was unlawfully declared deposed. Who on earth will believe the European Union is serious about its commitment to human rights if it continues to remain silent and look the other way?
https://blogs.publico.es/dominiopublico/50094/hay-que-meterle-fuego-al-tribunal-constitucional-o-no/