Does no one ever learn from the past? Spain, Chile and the rest…

Now that Spain’s ‘democratic’ memory law has passed the lower house, they’ll likely push it through the senate quickly. Meaning it will likely pass before the end of July and the government will try to use it to outlaw the Franco Foundation (in violation of the constitutional rights to freedom of ideology and expression).

This was noted by the General Council of the Judiciary. which said Francoism was protected by the constitution. So the coalition had added a clause that Francoism is forbidden when it additionally insults the victims that had suffered under it. Problem being that a right to not be insulted is not directly mentioned in the constitution and serves a classical justification for censorship. Who gets to decide what is insulting to the victims anyways? Surely the government aligned prosecutors will have to prove the Franco Foundation insults victims of the dictatorship before the courts, right? Will merely defending the dictatorship count as an insult? In that case the notion of insult to the victims is used, precisely to justify the kind of censorship of Francoism that the General Council of the judiciary said was unconstitutional.

As previously mentioned, there is a constitutional court crisis surrounding court nominees that won’t be resolved till probably at least September. Will the outgoing Conservative majority settle/strike down the law before new appointments are made? Will the Franco Foundation and Vox successfully challenge the law before that?

The President of the Supreme Court (and at the same time the General Council of the Judiciary), Carlos Lesmes Serrano, supports the President of the Constitutional Court. The government has the majority of the judicial council, the supreme court and the constitutional court and the presidents of all 3 against it.

My aunt who has lived in Spain for over 20 years, asked if the appointment system for the Constitutional Court in Spain is different from other countries like Germany or Belgium.

The answer is yes. It unusual for the government to get to appoint 2 justice by itself. Especially a parliamentary government that doesn’t need more than a simple majority in parliament for support. The 60 % requirement for the parliamentary nominations is also on the weak side (though it could be worse).

Due to all the deadlocks, the Supreme Court is now missing 14 % of its judges according to the European rule of law report. Which is why members of the General Council of Judiciary have demanded from the government that it repeals its 2021 law, that prevents the council from making certain appointments while it is serving ad interim.

Imagine if this got the same attention as complaints from the judicial elite in Poland. There were already complaints about the Supreme Court struggling to function due to vacancies 7 months ago.[1]

The way things stand now, the court has a 7-5 Conservative majority. If the Far-Left government succeeds in replacing both governmental nominees, there will likely be a 7-5 Progressive majority for the next 9 years. Unless, the majority Conservative General Council of the Judiciary deviates from the tradition to appoint one Conservative and one Progressive and appoints two Conservatives instead (if the Leftist government indeed passes a law to allow it to make 2 new appointments). Then there would be a 6-6 split for years to come. I guess that would be fitting for Spain.

It seems the Right can preserve its 7-5 majority on the Constitutional Court as long as it can keep in place the law the Left ironically passed last year, which prevents the General Council of the Judiciary from appointing 2 new members to the court. Since apparently the 2 government appointees are linked to the judicial council ones even though this has been an ambiguous matter as well. (Honestly Spain’s constitutional system is insane when you really look into it).

If the Left does get a majority on the Constitutional Court for many years, while the regular judiciary remains rather Conservative and opposed to the increasing Totalitarianism… this would actually be like 1973 Chile. There the Constitutional Court was disproportionately influenced by Allende’s appointees, while the regular judiciary strongly opposed his totalitarian tendencies. It is the sign of a decaying system.

The Socialists and Communists are doing the exact same thing they did in 1936. They use the contested plurality victory of that year to argue that the Popular Front government had majoritarian legitimacy and they try to downplay or deny its attacks on the separation of powers and the opposition. Again, they are indulging separatists and again there is rumbling within the army.

You may think you’ve read me ranting about this before. Well I remember reading about Socialists and Communists in Spain disrespecting constitutional liberties and the army threatening democracy from the Right before. It was the prelude to the Spanish Civil War. Now I am reading about it in current news.

I also remember that the election of a Communist in Chile who aligned with violent radicals led to a Right-wing coup. Now Chile has elected a Communist and extremists have drawn up one of the most Far Left constitutions that according to polls only 36 % of the people support, meaning it will likely be defeated in the upcoming referendum. In that case Pinochet’s constitution will remain in full force.

If all the polls turn out to be wrong and the referendum succeeds due to/along with ‘reported irregularities’… expect riots… again.

And again, Brazil might elect Lula again and…

All I really hope at this point is that when the Far Right does carry out its coup, it will remember the stance the judiciary made against the Socialists and Communists and respect judicial independence as a result.

Being a Centrist in 2022 sucks. Macron has given it a bad name without even actually being an actual, real, genuine Centrist.

Ramon Giralt

Sources:

1. https://spainsnews.com/the-government-accepted-espejel-and-arnaldo-to-guarantee-nine-years-of-progressive-majority-in-the-constitutional/