“Constitutional democracy may be in crisis, but we cannot get out of it by perverting it.” This is just one of many roundabout statements that Javier Cremades – lawyer, academic and president of the World Association of Jurists – makes in his book “On the Empire of … the law”, in which he attempts to make a local to global diagnosis of the current situation. In this work, published by Galaxia Gutemberg, Cremades speaks out to warn against what can happen if democracies do not protect and do not take care of this “experience” with which they acquired not so long ago and which is called the rule of law: “Totalitarianisms are hidingthey are effective and can prevail.
-Why focus on the rule of law?
-The rules of law are beginning to be the subject of citizen conversations because they seem fragile, threatened and no longer by external forces. Today it seems that autocracies work and people are satisfied, and it seems that in democracies the opposite happens to us, that we are dissatisfied, disconnected, and this presents a risk because for a constitutional system the connection between citizens and the system is fundamental, otherwise it cannot function.
-Why is this connection failing?
-There are two phenomena, one external and the other internal. The exterior is that autocracies have managed to penetrate democracies by abusing our freedoms and generating numerous interferences in public debate and difficulties in accessing the truth. But there are also internal elements which are deconstitutionalizing. When we see parties and powers from the right and the left attacking the independence of justice, questioning its functioning, accusing (judges) of being politicians in robes, this produces a disconnect between citizens and the system. We have seen the executive branch complain about the judicial scrutiny to which it is sometimes subject and claim that it is suffering from a “legal war”. But all citizens are subject to judicial review and the rule of law, including public authorities, including public authorities. (…) In Spain we have experienced a process of erosion of institutions.
-Do you think then that the government of Pedro Sánchez is contributing to this erosion?
-I pointed out in the book three major tumors which can affect the health of the system: the difficulty of accessing the truth; the attack on judicial independence, judges have become the last bastion of the rule of law and are the weakest; and polarization. The dynamic of an increasingly polarized public life is to defend oneself when there is a judicial front, but I think one must be extremely careful because any government can erode the rule of law simply by criticizing the actions of judges. We must not only comply with court decisions, but respect them. Stephen Breyer, the legendary justice of the United States Supreme Court, said that the rule of law requires a citizen to accept a judicial decision knowing that it may be wrong, because he knows the consequences of refusing. And this applies to the government, but also to the opposition. The Constitutional Court has already ruled on the amnesty law and said that it is constitutional, we must accept it. I think that governments on both the right and the left are tempted, because of the aggressiveness from which they suffer, to attack the referee, and the referee is the judiciary, which is a fundamental power.
-The system of election of members of the General Council of the Judiciary does not help, I understand.
-In the book, I analyze a dozen countries which have seen their rule of law stressed, eroded or destroyed, such as Venezuela or Nicaragua, where we have seen the mutation of a constitutional democratic system into an authoritarian system, into a real tyranny. Spain has suffered from strong tensions, partly due to the hypertrophy of political parties. A Constitution was drawn up after 40 years of absence of political freedoms, and the political party, in article 6 of the Magna Carta, is particularly strengthened. This political party penetrated the judicial system precisely through the system of election of judges. The two main ruling parties are responsible for the current system, which is not optimal, because one of them promoted change and the other, while it could change it, did not do so. And there is strong political interference in the selection of the Council and therefore in the highest judiciaries of the State and that is not convenient.
The best systems are those where the judges themselves elect the judges, where there is a technical and not ideological criterion on the ability of people to interpret the law, which is a complex abstract science, requiring high specialization, and where only the best, who must have a high dose of integrity, a capacity for independence and great technical knowledge, must be called for this. For me, the current system needs to be fixed. Judges are children of their time, judges live in a specific generation and have their ideology, but they are obliged by the law not to take it into account when they apply the law, (…) they are themselves also a power subject to the Constitution and the laws.
“The parties, when they have convictions like that of the Attorney General, the first thing they do is attack the judges”
-I understand that the situation in Spain worries you.
-It’s my country, I know it more closely, I worry about the discredit of institutions due to the actions of the parties, that when they have convictions against them, like that of the Attorney General, the first thing they do is attack the judges. And this is not possible, we must take great care of our judges, respect them. We must strengthen the link between the political community and the judicial system. In Spain there is a deterioration that we must reverse, we must regain this respect (…) for the entire legal system, because we must be very clear that the rule of law is an experiment. Next year the United States will be 250 years old, that’s a very short time and this experience could be lost. Totalitarianisms are hidden, are effective and can prevail, and we do not want to lose a system which is the only one capable of fully protecting the dignity of the person. If a power attacks the judiciary, citizens must come out to protect the judges (…) because they are the last frontier we have left, we have no other way to apply the law.
-Do you consider the pandemic to have been a litmus test for democracy?
-Without a doubt because there were two dangerous situations. One of them stems from what Aristotle said that power tends to expand. Power tends to perpetuate itself, then become corrupted. Therefore, in a space where the margins of action expand because government intervention is broader and the margins of the private sphere decrease, the government and public authorities will try to occupy everything, but not only the Spanish socialists, all governments have tried to tell us how we should live, with whom we should talk, how many times we could visit our loved ones. It was a truly dangerous situation and it was necessary to recover the sphere of autonomy, of freedom, because the rule of law is not a system of laws, it is a system of anthropocentric laws.
“Any effort within the framework of the law to restore the rule of law to Venezuelans seems to me intelligent, necessary and constitutes an ethical obligation”
-How would you define the situation in countries like Nicolas Maduro’s Venezuela?
-It is arbitrariness and maximum totalitarianism. What happened in Venezuela is very interesting because, as Moisés Naín, a Venezuelan writer, said, it is a regime that has actually worn the garb of democracy for many years. Formally, it looked like a system where there were judges, there was a parliament, there were elections, it looked like a democracy, but it was not the case and it is no longer the case since the constitutional reform that occurred in the early years of Hugo Chávez, because it was an illicit and unconstitutional reform. He cheated to change the rules of the game and from that moment on the whole game was flawed, it was no longer an anthropocentric system and that is why the power had the capacity to expand and dominate everything: there is no longer a single independent career judge in Venezuela.
-What is your opinion on the actions adopted by Donald Trump regarding the Donald Trump regime?
-Any effort within the framework of the law to return to Venezuelans a state of law that they should never have lost seems intelligent to me, it seems to me necessary, it seems to me an ethical obligation. I think the days of Nicolas Maduro’s regime are numbered and we will probably see a change within a few days. And this will have a lot to do with the presence of María Corina Machado – Venezuelan opposition figure and Nobel Peace Prize winner – in Oslo.
-What tools or keys are needed in societies like Spain to maintain the rule of law?
-We must follow this path of understanding that citizens are responsible for their own rule of law, and with our opinion, with our vote, with our taxes, with our life together, we defend a system where power will always be limited and monitored, controlled by free public opinion through professional journalism and also this micro-power that citizens must now observe, criticize, participate. But also monitored by which is the element of closure and control, namely the judicial power, which is the last thing left to us and the most fragile and weakest power.
About The Author
