The drift of the events experienced in Spanish politics in recent years deserves a deep and calm reflection on the role that Law is being given not only by politicians, who in most cases have GREAT legal training, but also by the institutions themselves.
The Spanish constitution of 1978 affirms in article 1.1 that Spain is constituted in a social and democratic State of Law. The location of such a statement in the first article and in the first section of the constitutional text is not by chance, but rather due to the importance that it entails, since in said section the vault on which our constitutional system is sustained is designed. The Constitution clings to the rule of law the first time it has to say something. Nor is it by chance that such commitment to the rule of law is the foundation of our constitutional model. The Rule of lawsince its term was coined by the German doctrine of rule of law and conceptualized it Kant, has served to rationalize the exercise of power and subject it to known and knowable limits and rules, in such a way that no power is excluded from control in the exercise of its functions. In the Anglo-Saxon world, this mutual control of the three powers of the State has been called check and balance. And that is what the constituent intended when it drafted the aforementioned article 1.1 of the 1978 Constitution.
After a few first years of constitutional joy and of a fortunate rediscovery of the Rule of Law in our country in which, with some other visible stain among which we can highlight the expropriation of Rumasa by Royal Decree-Law, the approval of some first Statutes of Autonomy whose unconstitutional charges are not were resolved by Constitutional Court Judgment 76/1983 on the Loapa or the formula for the election of the members of the General Council of the Judiciary in the LOPJ of 1985, origin of some of the current problems, the constituted powers exercised their functions in a more or less reasonably, without crossing the red lines that the Constitution and, therefore, the Rule of Law, marked them.
We can affirm that throughout that time the Law was used to recognize and develop unknown fundamental rights in the pre-constitutional stage and, ultimately, to expand the legal sphere of citizens.
However, in recent times, not only in Spain, but especially in our country, Law is being used as a way to limit the rights of citizens, to colonize institutions by the executive branch and, ultimately, to as a tool of social oppression.
Focusing on our country, the management of the COVID-19 pandemic or the constitutional crisis caused by the renewal of the members of the CGPJ and the magistrates of the TC are paradigmatic examples of what has just been stated. In the first case, the restrictions on fundamental rights adopted through non-suitable regulatory instruments were declared unconstitutional by the TC itself. In the second case, the unprecedented attack by the executive power on the judiciary, with the help at the last minute of the parliamentary majority in Congress, has caused a constitutional crisis resolved, in my opinion, falsely and momentarily, with the renovation of a TC room. We must remember at this point that the aforementioned article 1.1 of the constitution regulates political pluralism as the highest value of the legal system, which prevents the parliamentary majority from approving unrelated amendments presented at the last minute in a bill that had nothing to do with it. to do with its processing, robbing the opposition of its right to participate through the necessary and reasonable consideration and calm debate.
Likewise, it is obligatory to remember that all constituted powers, including the legislative power, are limited in their functions by the constitutional text and that, precisely, the constitutional courts were created to ensure that this limitation is fulfilled, that the constitution is not a paper wet or programmatic, but rather a norm with a direct normative efficacy, and that the legislative power does not exceed its functions and inherits the all-encompassing powers recognized to absolutist monarchs under the guise of legitimizing the ballot box.
It is disturbing to see how the cause of all these evils has the same origin: the expansion of regulatory capacities and powers that the executive power has been monopolizing over the last two hundred years to the detriment of the legislature, which it has tamed for a long time. . It is even more curious to observe how this was not the initial desire of the doctrine of the separation of powers. If Montesquieu raised his head!
The consequence of all this is worrisome. The exorbitant power that Western democracies, for historical reasons whose analysis goes beyond the objective of this reflection, have granted to the executive power is getting it to use the Law at will through bills, legislative-decrees, decree-laws and regulations, regulating practically all the activities of citizens in a limited manner and changing their legal position from a negative link to the law (Merkl) to a quasi positive link, from general subjection relationships or increasingly frequent special subjection relationships in which the citizen is in a complicated statutory position. And, unfortunately, as far as I am concerned, as Professor Santamaría Pastor has already shown on more than one occasion, administrative law, once a champion of legal guarantees against the abusive exercise of power in the Franco dictatorship by the work of the RAP generation, headed by Professor Garcia de Enterria, The democratic system of 1978 has become the vehicle chosen by the executive power on most occasions to establish all kinds of regulations ablatory rights and legal limitations of different depth to citizens, with which the balance between exorbitant powers public rights and social guarantees in the face of the exercise of that power is once again in danger after the transition of two hundred years to achieve said balance is again at stake today.
It is therefore worth asking what we are doing with the Law. It is necessary to show that it is being used not as a guarantee for citizens against the abusive exercise of power by the institutions, but as a vehicle for imposition and intrusion into their legal sphere. That is not the guaranteeing role that the Law is called upon to fulfill in a Rule of Law. Not, at least, the one that was thought when it was designed. It is inevitable to remember again the famous conference of the professor Garcia de Enterriaprecisely, at the University of Barcelona on March 2, 1962, in which he lectured on the fight against the immunities of power in administrative law and remember that we must be vigilant in the face of the new challenges that still underlie the exercise by the executive branch of discretionary, governing and regulatory powers.
Likewise, it is convenient not to forget the words of Stanley Payne when he affirms that democracy is the system of fixed rules and uncertain results. It seems that this is forgotten and that the executive power in the different countries has rediscovered new formulas for the spurious use of the Law with the old intention of subverting the current legality and transforming it at will, trying, as far as it can, to modulate and stress the rules of the law. democratic game.
The pillars of the Rule of Law in Western democracies (principle of legality, separation of powers and recognition of fundamental rights) are in danger. And, paradoxically, the Law is the instrument that is being used to threaten them. The law backwards.
Antonio Jesus Alonso is
Director of the Center for Law Innovation (CID-ICADE)
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