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Mark Nayler
Friday, 9 August 2024, 15:33
Separating law and politics in Spain just became a whole lot more difficult. A few days ahead of his dramatic return to Barcelona on Thursday, ... Catalonia's ex-president Carles Puigdemont published a letter in which he claimed that the Spanish judiciary contains many judges who are "willing to disobey the law". Their offence? Not applying the amnesties granted to Catalan separatists by Pedro Sánchez.
But when it was approved by parliament at the end of May, the amnesty didn't automatically become binding on every judge currently presiding over cases against separatists. There is no meta-law, as it were, over and above the amnesty, telling judges that it must be used in every situation in which it has relevance.
Instead, it was a key clause in this divisive piece of legislation that its application in particular cases would be at individual judges' discretion. They were initially given two months from the law's publication in the official state gazette (on June 11th) to decide whether or not to do so - i.e. up until early next week.
Puigdemont accuses "Spanish patriotic judges" ("patriotic" is clearly being used as a synonym for "politicised" here) who choose not to apply the amnesty of "non-compliance. That is, rebellion against democratic institutions". He thus implies that it is the judiciary's job to unquestioningly apply the new legislation. Yet it was precisely on these grounds that the Spanish judiciary, as well as the EU and Spain's opposition parties, expressed concerns about the amnesty's possible effects on the rule of law.
These critics argue that the amnesty violates what is supposed to be a robust division between government and the courts, between politics and law. This is why many judges are seeking extensions to the two-month deadline as they challenge the legislation in EU tribunals. Puigdemont sees this as old-fashioned unionism; but let's not forget that the government he accuses these judges of "disobeying" is bound by the Constitution to defend Spanish unity.
Puigdemont also claims in the letter that "Spain can never [have] rule of law while judges disobey Parliament and, especially, if nothing happens to them when they do". Critics of the amnesty make exactly the opposite argument: that Spain can never have rule of law while its government intervenes in judicial proceedings in order to extend its time in office - and gets away with it.
In only one of those two situations could a country's judiciary be described as independent; that is, free to interpret laws as it deems appropriate in specific cases. It's the one that Puigdemont describes, which is still (just about) the reality in Spain. If the former Catalan president wants to maintain that judicial independence could exist in a state in which judges are the puppets of politicians, the burden of argument rests squarely with him.
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