The triumph of the rule of law

The solid, measured and well-argued ruling of the Supreme Court in the case proces is a full-fledged triumph of democracy and the rule of law, in addition to constituting an excellent and pedagogical reading not only for jurists but for any citizen concerned with these issues. , that we should all be. It should be remembered that the oral trial, broadcast on streaming , had a great following also turning the magistrate and president of Room II, Manuel Marchena , into a very popular character. All this has special merit because this judicial process perfectly illustrates how our political class gave up addressing a problem that was to be resolved (a political problem first and then legal) delegating all responsibility for the defense of the constitutional principles on which it is based our democratic coexistence in judges and in criminal law. It is known that the judges are the last trench of the Rule of Law , but also the Criminal Law is -or used to be at least- the last ratio of the defense, that is, the one that must intervene lastly when they have already been exhausted all possible legal political instruments. Citizens will think that the strange thing is that there was no political and legal defense before. And rightly so, because of course they were of one kind or another but they simply were not used for short-term, electoral or pure and simple comfort reasons. In this regard, the last governments of the PP of Rajoy (the first with a large absolute majority) whose astonishing passivity to the secessionist escalation and disloyalty promoted from the Catalan institutions from 2012 culminated with the events judged in the judgment of October 14, 2019. Nor should we forget his enormous awkwardness in the management of 1-0 and the absence of a strategy worthy of the name.

In short, it is hard to believe that the independence challenge had been reached so far without so much irresponsibility and without the feeling of impunity generated in the Catalan rulers by the succession of national governments willing to look the other way before the very obvious breaches of the legal system as well as before the patrimonialization and lack of neutrality of the institutions, not to mention clientelism and institutional corruption. Perhaps, although it is difficult to say, because what we have seen in Catalonia is but an exacerbated and justified example in the nationalist ideology of the deterioration of the rule of law and institutional weakness also visible in other autonomous communities and in the State itself. And it is that the politicization of each and every one of the institutions does not come free either in terms of good governance , democracy or the fight against corruption.

Only in that context is it possible to understand the sequence of proven facts contained in the ruling of the Supreme Court on the basis of which it condemns its authors to a series of penalties that to the most conservative political parties and citizens seem insignificant compared to the seriousness of the The most progressive political parties and citizens seem too high. Of course, independence seems to be an aberration and an attack on democracy and fundamental rights. All this without the majority of opinion makers has bothered to read it, of course .

The problem is that secessionists (and a part of the Spanish left) sign the thesis - deeply illiberal and anti - enlightened - that plebiscitary democracy is above the law, understanding by democracy the fact of voting even in an illegal referendum without the minimum guarantees and appealing to the fiction of the poble sun in flagrant contradiction with the plurality of Catalan society. In case this sounds a bit primitive to a little more sophisticated ears (those of citizens who value liberal representative democracy, separation of powers and the rule of law) the indepense argument adds that in Spain the law is unfair, the oppressive State and Franco and the puppet judges of politicians. Based on these beliefs, protests have been organized.

Because if there is no doubt about it, it is that the legal system was violated by high authorities of the State (such as the governors of the Autonomous Community of Catalonia) which they themselves recognized even boasting of it. In the oral trial, what was involved was to see to what extent this violation deserved a criminal reproach and to what extent . The sentence also starts from the thesis that the bluff was played. Among other things because that was the position held by most of the defenses throughout the oral trial. That is to say, the Catalan rulers knew perfectly well that they could not achieve unilateral independence with the means deployed although they had convinced part of the citizenship to the contrary. For that reason and not because of the absence of violence, the commission of the crime of rebellion is ruled out, considering that it is not possible to speak of a pre-ordered and instrumental violence to achieve the final objective .

In this sense, the proven fact No. 14 of the sentence is absolutely devastating and deserves an extensive appointment. "The defendants now being prosecuted were aware of the manifest legal infeasibility of a referendum of self-determination that was presented as the way to build the Republic of Catalonia. They knew that the simple approval of legal statements, in open contradiction with democratic rules provided for the reform of the constitutional text, could not lead to a space of sovereignty.They were aware that what was offered to the public as the legitimate exercise of the 'right to decide', was but the decoy for a mobilization that would never lead to in the creation of a sovereign State Under the imaginary right of self-determination, the desire of political and associative leaders to pressure the Government of the Nation to negotiate a popular consultation crouched, the excited citizens who believed that a positive result of the call self-determination referendum would lead to the desired hori Zonte of a sovereign republic, they did not know that the 'right to decide' had mutated and had become an atypical 'right to press'. Despite this, the defendants favored a legal framework parallel to the current one, displacing the constitutional and statutory system and promoted a referendum devoid of all democratic guarantees. Citizens were mobilized to show that judges in Catalonia had lost their jurisdictional capacity and were also exposed to personal compulsion through which the legal system guarantees the execution of judicial decisions. "This paragraph should be read by secessionists in good faith, because basically the Supreme considers that its rulers, irresponsibly, frivolously and perfectly conscious, embarked on them - even with personal risks - on a trip to nowhere, or so they affirmed in the trial, even if it was for defense purposes In the end it was a trick, nothing serious .

What has been serious and professional has been the performance of room II of the TS with special mention to its president, who already had the opportunity to set an example of dignity with his resignation to the alleged candidacy for the presidency of the CGPJ agreed between PP and PSOE according to the famous whatsapp of Ignacio Cosidó , then spokesman for the PP in the Senate. That of course was also alleged by the defenses in the trial to highlight the lack of independence of the magistrates of political power. And it is that until our great parties do not renounce the political control of the members of the CGPJ , who in turn appoint the magistrates for the highest positions of the judicial career, we can not prevent this type of accusations and more in cases as relevant as the process . In this same sense, the sentence criticizes the lack of rigor and seriousness of the politicians when analyzing the allegation of the defense of the violation of the presumption of innocence because they spoke of pardons before a condemnatory sentence had been issued.

I also do not resist making another extensive quotation of this important ruling relative this time to the much-loved civil disobedience practiced from the institutions and not from the seat of a bus prohibited for people of color. "To become active subjects of civil disobedience to political leaders incardinated in the structure of the State of which they are a part; political leaders with creative normative capacity and who present themselves, in an irreducible paradox, as characters that embody a public power that disobeys himself, in a sort of autoimmune disease that devours his own organic structure, this is not, of course, the space of civil disobedience Disobedience as an instrument of vindication and social struggle is, above all, a reaction against to the exhaustion of the orthodox mechanisms of political participation. It is not a vehicle for political leaders who hold power in the autonomous structure of the State to wield an attitude of devastating disobedience against the constitutional bases of the system that, do not forget, derives its own democratic legitimacy. " In short, if our politicians did not live up to this challenge at the time - and we will see if they become one - our judges have been when they have had to judge facts based on the provisions of our Criminal Code . They have done it for what they are; great professional jurists in a rule of law worthy of that name. We can be very proud because it was not easy.

Elisa de la Nuez is a State lawyer, co-editor of Is there a right? and member of the editorial board of EL MUNDO.

According to the criteria of The Trust Project

• Supreme Court
• PP
• Catalonia
• General Council of the Judiciary
• Senate
• PSOE
• Mariano Rajoy
• Manuel Marchena
• Spain
• Editorial

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