A Spanish Judiciary in Crisis

After several false starts, Spain became a successful democracy in 1978. Some years after the brutal Spanish Civil War (1936–39), General Francisco Franco began grooming Juan Carlos I de Borbón to assume leadership in his stead. In 1969, Franco formally named him his successor with the expectation that the young heir to the throne would carry on his authoritarian regime. Franco had bypassed Juan Carlos’s father, thinking the elder held views that were too liberal. That proved a grave miscalculation: upon Franco’s death in 1975, Juan Carlos sent the old general rolling in his grave by deftly leading the country into democracy, which culminated in Spain’s 1978 Constitution; and Juan Carlos’ installation as king shortly thereafter.

The constitutional monarchy has proven resilient, enduring several challenges that might have ruined another country. At present, however, Spain is embroiled in a political crisis over its judiciary: to the country’s embarrassment, a recent European Union survey ranked it 22nd out of 27 countries in the confidence citizens had in the judiciary’s independence. A European report warns that “the rule of law is in retreat” in Spain. All of this may hold lessons for the United States, given its own unfortunate judicial polemics.

A look at several critical historical moments throws light on the present crisis. The most dramatic incident occurred in 1981. With 200 armed soldiers at his back, Lieutenant-Colonel Antonio Tejero burst into Spain’s elegant parliament building, wearing the iconic three-cornered hat of the Spanish Guardia Civil. The invasion occurred during a roll call vote for the parliamentary president, and the perpetrators began firing automatic weapons in an attempted military coup. Because of the importance of the vote, the proceedings were broadcast live on Spain’s SER radio channel, and the first thirty minutes of the coup were videotaped

King Juan Carlos I became a national hero once again when he demanded that the military lay down their arms, dispelling any illusions that he would support the coup. The aggression was diffused within 24 hours. Although the Spanish government repaired the stained glass windows, they wisely did not plaster over the bullet holes in the walls, which still remain. 

In 1996, Spain seamlessly underwent her first formal transfer of power when José Maria Aznar’s conservative Partido Popular (“People’s Party” or PP) gained a majority over Felipe Gonzalez’s leftist Partido Socialista de Obreros de España (“Spanish Socialist Workers Party,” or PSOE). I was in Madrid at the time staying just a few blocks from the proceedings and watched it on television with a small crowd. The transition was gracious and good-humored, and undoubtedly buoyed the country’s hopes for the future. This goodwill has dissipated, hence the growing political tension surrounding the judiciary.

Juan Carlos captured the imagination of the country yet again when, at an Ibero-American Summit in 2017, the boorish Hugo Chavez of Venezuela began calling the previous prime minister, Aznar, a “fascist,” and “less human than snakes.” The king interjected, “¿Por qué no te callas? (“Why don’t you just shut up?”) Overnight, ¿Por qué no te callas? became a nationwide meme, appearing on t-shirts, bumper stickers, and even serving as a popular answering machine message. Once as highly esteemed as Elizabeth II of England, we now unfortunately know that Juan Carlos I has feet of clay: beset by allegations of financial corruption, in 2014 he abdicated the throne to his 6’6” son Felipe VI and, in 2022, fled Spain to Abu Dhabi. Unfortunately then, there is no longer a seasoned monarch who might, by virtue of his office, personality, and reputation, provide a sentido de estado, as the Spaniards call it: a dedication to the good of the nation—a call to statesmanship. 

A well-timed terrorist act can change an election. 

Through the last few decades, Spain has enjoyed a predominately two-party system, led by the PSOE and PP; at the same time, several influential regional parties also occupy seats in the national parliament, especially the ERC-Sí (Catalonia) and the PNV (The Basque Country). It’s as if there were a “Texas Party” in Austin, also holding seats in the US House of Representatives. Most recently, the populist wave across Europe has spawned the left-wing Marxist Unidas-Podemos (“United We Can”), the right-of-center Ciudanos (“Citizens”), and the farther-right Vox (“Voice”). Neither of the major parties can now govern without uneasy coalitions. 

Spain experienced its own 9/11 attack on Thursday, March 11, 2004, that was later dubbed “3/11.” This horrific incident continues to reverberate through Spain’s political landscape, even to the present day. During the morning rush hour, ten bombs ignited on four commuter trains proceeding from Alcalá de Henares, a bedroom community a few miles northwest of Madrid, as the trains pulled into Atocha, Madrid’s largest train station. Almost 200 people were killed and an estimated 1,800 were injured. Rescue workers reported hearing scores of cell phones firing off in the pockets of corpses as Madrileños tried to contact their friends and loved ones. The terrorism occurred three days before Spain’s general elections and proved fatal to the Aznar administration. 

The PP might have survived had they not so clumsily handled the affair: Aznar immediately blamed the Basque separatist group ETA, whom he loathed, only to concede shortly thereafter that the perpetrators were Islamic terrorists provoked by the Prime Minister’s support for the 2003 invasion of Iraq. Consequently, and contrary to all the polls, the PSOE regained a majority in the Congreso de Deputados, suggesting that a well-timed terrorist act can change an election. 

In 2017, the autonomous community of Catalonia, in violation of the Constitution, staged an illegal referendum calling for a declaration of independence from the rest of the country. The PP-controlled government led by Mariano Rajoy dealt with the attempt severely and several of the Catalonian leaders, including Catalonia’s President Carles Puigemont, fled the country. Others were jailed until the PSOE pardoned them just last year.

As Spain’s political party system has become more fractious, its ability to confront challenges as well as it has in the past has diminished. The present crisis has to do with the politicization of Spain’s judicial system. The European Union has put Spain in the same category as Hungary and Poland as countries in which the independence of the judiciary is either compromised or at risk. The Economist calls it the country’s “biggest institutional mess since Catalonia staged an illegal independence referendum in 2017.” A member of PSOE unhelpfully compared the PP’s role in the controversy to the attempted military coup in 1981.

Certain features of Spain’s judicial system will seem curious, even overly technical, to those accustomed to the common law tradition. Such is the case with Spain’s “General Council of the Judicial Power (CGJP), sometimes called the “Watchdog of the Judiciary.” Though many Spaniards don’t even understand its role or importance, the stakes involved in the disputes over the GCJP couldn’t be higher. 

According to Article 122 of the 1978 Constitution, it is the “governing body of the Spanish Judiciary and carries immense responsibility as it is by far the most important in appointments to the Supreme Court, the Constitutional Court and a whole host of other judicial positions both in Madrid and across the country.” 

The CGJP is not a formal part of the judicial system, but it oversees the institution and provides a protective buffer between the judicial branch and the government, the legislature, and the monarchy. Its creation was inspired by judicial entities in Italy and France, and it also has antecedents in mid-nineteenth and early twentieth-century Spain.

Minor parties revel in “punching above their weight,” and so to get what they want they essentially blackmail the larger parties by refusing to provide the support needed for workable coalitions.

The monarchy, the Senado, and the Congreso share in the appointments to the CGJP, but it is the super-majority required in the legislature—a 3/5 majority—that is decisive, and therein is the deadlock. In previous years, this has been easier because of the two major parties’ unavoidable obligation to cooperate, but now the multiplication of Spain’s political parties renders this much more difficult. 

Accordingly, a mechanism designed to protect the judiciary from politics now ironically generates more political friction. Consequently, the terms of several judges on the Constitutional Court have expired and the tenure of several members of the CGPJ is technically over, but they have continued to serve on expired mandates in a kind of “caretaker” role. 

Despite occasional agreements, the PSOE and the PP are increasingly hostile from one to the other. For their part, the regional parties, ERC-Sí and PNV are narrowly concerned with gaining more autonomy for their respective regions. The new ideological parties, Podemos, Vox—and to a lesser extent Ciudanos—are usually only focused on one or two hot-button issues that do little to unite the country. For them, to compromise on these issues is heresy. These minor parties revel in “punching above their weight” and so to get what they want they essentially blackmail the larger parties by refusing to provide the support needed for workable coalitions.

To add fuel to the fire, the PSOE has tried to push through legislation that gives the Congreso the power to appoint members of the CGPJ by a simple majority, meaning they could “pack the court.” Even worse, in a clumsy display of opportunism the PSOE added a provision that diminishes the crime of sedition as a favor to the Catalans, given that sedition was the most serious violation in the 2017 referendum. The PP, however, appealed the PSOE law straight to the Constitutional Court itself, presently with a slim conservative majority, who peremptorily—and cleverly—held that the proposed legislation is unconstitutional because it combines two unrelated issues. For their part, Spanish progressives argue that, over the last few decades, the PP has used its moments in power to manipulate the CGPJ, making it less democratic and more conservative. 

In October 2022, the PSOE and the PP agreed on a stopgap measure that fills the vacancies in the Constitutional Court but does so by bypassing the CGPJ. Key to this agreement has been the statesmanlike demeanor of PP’s present leader, the moderate Alberto Núñez Feijóo, who replaced the brash, 41-year-old Pablo Casado. Now, all the talk is of an urgent need for a renovación of the CGPJ, but what a renovated CGPJ would look like is uncertain, nor is it clear whether the changes would diminish the independence of Spain’s judiciary.

The pressure is on. Hundreds of judicial positions around the country are vacant, waiting on action by the CGPJ. Questions regarding the legitimacy of the CGPJ are becoming increasingly urgent, especially as several new high-profile laws are in the headlines and are en route to appeals to Spain’s highest courts. One is “solo sí es sí” (“only yes means yes”) which is designed to protect the “sexual liberty of women.” The objective is laudable but the difficulty has come with its application. Already it is inadvertently lowering the sentences of some convicted sexual criminals as well as raising questions about the due process of the accused. Another law, successfully pushed by Spain’s “Minister of Equality,” the Podemos-affiliated Irene Montero, allows children as young as 14 to announce a change of gender with no medical analysis at all. Both of these laws will be appealed to the highest courts.

In addition, in July 2023, the presidency of the Council of the European Union will pass from Sweden to Spain. Although the six-month rotating presidency is equal parts symbolic, ceremonial, and substantive, it will be a considerable embarrassment for Spain if it does not have its judicial house in order, and it will undercut any influence Spain hopes to exercise during its tenure. All of this is transpiring in the face of impending local, regional, and national elections in 2023. At this point, PP is projected to win, but nothing is certain at the moment.

One Spanish commentator fretted over what she described as the increasing political polarization in Spain, and the fear that Spain might suffer the same kind of turmoil currently on display in the United States. She observed, with Spain’s civil war in mind, “We do not handle drama well.” A political scientist at Carlos III University in Madrid fears the worst, namely that, “Polarization is damaging the democracy in Spain as is happening in the US.” A colleague of mine in Pamplona darkly laments that Spain has deteriorated into a “partocracy,” in which political parties rule, rather than a democracy, in which the people rule.

He places the ultimate blame, however, on the voters. “If voters act like children,” he says, “they will elect clowns.” We can only hope that leaders with a sentido de estado will emerge in Spain. If not, in the not-too-distant future, Spain’s remarkable success may only be a memory.