Fragility of democracy in times of populism and polarisation: is freedom under threat?

Summary:

On 2 April 2024, the Rafael del Pino Foundation organised the dialogue "Fragility of democracy in times of populism and polarisation: Is freedom under threat?", with the participation of José Manuel García-Margallo, MEP and former Minister of Foreign Affairs, and Fernando Eguidazu, former Secretary of State for the European Union, on the occasion of the presentation of his book "España, terra incógnita", published by Almuzara Libros.

José Manuel García-Margallo: We are in the middle of a process that will necessarily bring about change. It began with undue pardons, then came the repeal of sedition, the softening of embezzlement and now we have reached amnesty. Amnesty is unconstitutional and brings about regime change. There have been three very important amnesties in the history of Spain: that of 23 September 1939, that of 15 September 1977 and that which is currently being discussed in the Cortes. The first is an example of an amnesty granted by the victors to the vanquished and is almost parallel to the text of the bill now being discussed in the Cortes. The 39 law declares crimes against the constitution and public order committed from 14 April 31, the date of the proclamation of the Republic, to 18 July 36, the date of the uprising, to be non-criminal offences for people who met two conditions: that their ideology coincided with that of the National Movement and always including murders which could be considered as a protest against the unpatriotic sentiment of the organisations and governments which, through their conduct, justified the uprising.

The second amnesty is the one we did in the Cortes in 1977. It was an initiative of the Basque Nationalist Party, of Jaúregui, who resolved it by saying that the amnesty was a great solemn act that would forgive and forget all the crimes and barbarities committed by the two sides in the Civil War before it, during it and after it, right up to the present day.

The amnesty we are discussing now is much more similar to that of 36. It is not supported by all parties and is aimed at a specific group, which is significant for its ideology. The bill exonerates all criminal, accounting and administrative responsibility, as long as it was committed during the two consultations with the intention of provoking Catalonia's independence.

The amnesty is one more step in this process that will end with the balkanisation of Spain as a prior step to the secession of its territories. Bildu says that without pro-independence Basques and Catalans there is no state government and this offers them the possibility of negotiating things. Negotiating what? In a text signed by all pro-independence parties on the 40th anniversary of the Tejero coup d'état, it is said that there was nothing to celebrate that day because it was not a triumph of democracy. Far from being a failed coup d'état, it literally says, it was a coup d'état to reinforce the regime of the 1978 Constitution. There will be no democratic normality in Spain as long as the right to self-determination is not recognised, the text continues.

Self-determination does not fit in the Constitution, the signatories of this text are aware that they do not have the votes. Therefore, what they are doing is taking the institutions, emptying them, filling them with a different content and sewing them together. It is a worm of the system that empties the institutions of their content to the point of dissolving the state. Musolini came to government with 35 fascist deputies, nothing more. For three years he governs within the Italian constitution, but he gradually erodes the institutions and when he finds himself with an insoluble problem he establishes by decree the totalitarian one-party regime of the fascist regime.

Fernando Eguidazu: We are experiencing three challenges at the same time. The first is the demolition of the spirit of the Transition. The spirit of the Transition was concord, tolerance, respect for others. This is what inspired the Constitution of 1978 and the entire period we have lived through until very recently. Today we are experiencing the opposite situation, one of tension, confrontation, polarisation, which is not spontaneous, but part of a deliberate political project, which was explicitly expressed in the elections of July last year, which is to delegitimise the opposition. Legitimacy is sought not in the Constitution, but in the Second Republic. The left considers itself the heir of the Second Republic and the others the heirs of Francoism, which means that they are not morally legitimised to govern.

This leads to a perverse approach, which is that there is nothing worse for the country than for the opposition to govern. That implies that whatever the person who says that does is justified, it is acceptable, because the greatest evil that the country can suffer is being avoided. That is a denial of democracy because democracy, by definition, implies alternation. Democracy sacralises alternation. If you don't accept it, you are not a democrat. That is the great challenge.

The second challenge is the emergence of extreme left-wing populism, which directly wants to do away with the regime of the 78 Constitution and replace it with something very confused, basically undemocratic, a kind of plurinational republic in the style of Chavism. The third challenge is independence, which has taken advantage of the situation to force a secession that does not even have the support of the majority of the Catalan people.

The nationalists have been disloyal from minute one, both the Catalans and the Basques. The Catalans are the ones we are worried about now, and after one always comes the other. In the past, Catalan nationalism was built up little by little, gradually reducing the State's competences in order to increase its own and create its own institutions. The goal was now patience and then independence. Now two things have happened that have led to the abandonment of this path of progressive emptying of the state. The first is the 2008 crisis. Artur Mas and CiU were frightened by the public reaction to the cuts and decided to look elsewhere for the culprit, in Spain, with the Spain robs us. So Catalonia does not have the resources, but if we are independent, we will have them. That is the fundamental step. Then they have seized the moment, something the Catalans have always done, in 1931, 1934 and 1936. They have taken advantage of the fact that Spain is immersed in an economic crisis and that the government is focused on resolving it. Now they are taking advantage of the fact that they have the key to the Spanish government and a president who is willing to concede whatever is necessary to maintain power. Now we have the final straw, which is the referendum, and there will be one. Not a referendum on self-determination, but there will be some kind of referendum.

José Manuel García-Margallo: Contrary to widespread opinion, the Second Republic was a catastrophe. It began with a statement by Azaña saying that the Republic would be left-wing or it would not be, thus leaving out half of Spain. The right wing was delegitimised, so delegitimised that when the CEDA won the elections and put its ministers in government there was a coup d'état in Asturias, the Basque Country and Catalonia. A regime that in five years had five coups d'état and ended in a civil war and a dictatorship is a success seems an important literary licence.

The Transition was possible because it was led by two centrist parties, the UCD and Felipe González, who had renounced Marxism. That is the amendment to the totality that Sánchez has made in his party.

The nationalists were disloyal, they broke the trust of those of us who had believed in them. But they are not the only ones responsible for what has happened; we must also include the socialist party, specifically the Socialist Party of Catalonia. When Tarradellas came, he said that the Catalans wanted to be the vanguard of prosperity, freedom and well-being for all the peoples of Spain. The approval of the Constitution and the statutes allowed us to believe that this was the case, but it was not true.

From then on, they proposed a fiscal pact to the government, which they knew could not be an excuse to break bridges. This was preceded by an action by the PSC that became the moment of rupture, the Pact of Tinell. Maragall had the feeling that the socialists had been overtaken by Pujol, and he attributed this to the fact that they were not sufficiently nationalist. They put forward a statute that includes many things that are in the so-called Brussels agreement: Catalonia goes from being a nationality to a nation, Catalan is the preferred language, it assumes all the powers of the administration, relations between the Catalan and Spanish administrations are bilateral, as if they were between states, and finally, it demands its own tax agency. All this is in the agreement signed in Brussels between Sánchez's envoy and Puigdemón.

There is not going to be a referendum on self-determination. The formula is going to be a Maragall bis, a modification of the statute that includes the recognition of the Catalan nation (the Basque nation will follow), Catalan will be established as the only language, bilateralism between administrations will be established in addition to assuming all pending competences and establishing its own Treasury. Why? Because they are not interested in independence. The nominal sovereignty of Spain suits them to remain in the European Union, but there will be nothing left of Spain but Zara. They will set up a general council of the judiciary and the autonomous laws will not leave the slightest margin for the intervention of state law.

The coup refinement of Poland and Hungary is the model followed by Sánchez's government: gradually seizing all the powers of the State, twisting or violating the Constitution outright. The first hollowing out of the Constitution is produced by the invasion of the executive power in the legislature, by the use and abuse of the decree-law that has become the normal process of legislating. Between 2016 and 2021, 126 decree-laws were passed and only 69 laws were passed, most of which were nothing more than the conversion of validated decrees into laws. It is shocking that the decree-law serves to cover everything. The decree on energy saving devotes five of the fifty pages to energy saving and the rest are measures that have absolutely nothing to do with it, such as the transport pass or grants for students. The anti-drought decree-law, approved just before the regional elections that won the PP, includes a reduction in the interrail season ticket for young people. The height of imagination is the Covid decree, which is used to include Pablo Iglesias in the Delegate Commission for Intelligence Affairs, on which the CNI depends.

The second of the main ways is that, when the decree-law is not satisfactory, they resort to the draft law to avoid the mandatory, but not binding, reports that the Constitution has established to guarantee the separation of powers and legal certainty. The "yes is yes" law is a clear example of this, as is the amnesty law, which is the same thing.

The second aspect is the occupation by card-carrying militants, of due obedience. Sánchez appoints Dolores Delgado, former Minister of Justice, who is a card-carrying militant and who began her work by rejecting nineteen complaints against the management of the pandemic. When she resigned, she appointed her right-hand man, Germán Ortiz, who corresponded by appointing her as prosecutor for democratic memory, against a report by the Council of Public Prosecutors accusing her of misuse of power. The prosecutor's actions up to now, the appearance of the Koldo case after an election, is striking.

The most serious is the Constitutional Court because the big operation in the making is a Catalan statute of autonomy, which will be appealed to the Constitutional Court and will be endorsed by that institution. Europe has nothing to say here. It has a say on the amnesty, on embezzlement, on the issue of high treason over Russia, but a statute that is declared constitutional is unlikely to have access to the European Court of Justice of the European Union.

There have been some very notable developments here. In July 2022, the government intends to take advantage of the reform of the penal code to introduce several reforms to the organic law of the judiciary and the Constitutional Court. And it wants to do several things: reduce the majority so that those who support the government have no counterweight, accuse the members of the council who oppose this appointment of prevarication, and eliminate the prior examination of the suitability of magistrates, with the result that we have the leaders that we have.

When these things are brought to a halt, the President of the Government has a phrase that could be sculpted in marble. He says: "we are facing an attempt to trample democracy, not only by the political right, but also by the judicial right, encouraged by the media, and this is not acceptable". The chairman of the Justice Committee is clearer and more forceful. He does not like this attempt to overturn the law and said: "41 years ago the right wanted to stop democracy. It did it with tricorns. Today it has wanted to do it with togas." Sánchez in the end wins the game, elects the magistrates, one of them a former minister, another a former director general of the ministry of the presidency, and they elect Conde Pumpido president of the Constitutional Court.

The speed of the Constitutional Court in approving everything that was an obstacle for the government is remarkable. In just weeks it resolved the appeal against the abortion law, the appeal against Celá's education law, the appeal against euthanasia, the extravagant swearing-in formulas that the president of Congress had tolerated and the reform of the council of the judiciary. With the amnesty it goes a step further.

Fernando Eguidazu: The list of colonisation of institutions is so long that we would end up saying which ones are not already colonised. There are some things that are extremely serious. One is the level of the people who occupy these posts and another is the shameless way in which they are appointed, without even covering the forms.

This has a really damaging effect on democracy because it conveys the image to citizens that the institutions are the spoils of the victor and that these institutions are at the service not of the State but of the Government. Then there is a second very serious consequence, which is that it gives the President of the Government disproportionate power, which is far removed from the spirit of the Constitution. Just think what it means, if this goes all the way, for a government to control the Public Prosecutor's Office, the Tax Agency and the courts. It is frightening.

This is not just a question of political expediency. There is a populist background to this story, which is the concept that democracy is above the law and that democracy is in Congress. The Congress is the Spanish people, therefore the Congress is sovereign, therefore with an absolute majority it can do whatever it wants and the institutions have to submit because that is the national will. This is radically false. The first article of the Constitution states that national sovereignty resides in the Spanish people, from whom the powers of the State emanate. The powers are three: legislative, judicial and executive. The legislative power is two chambers, not one, it is the Congress and the Senate. That means that Congress is subject to the law. All powers are subject to the law, including Congress. It cannot do anything by skirting the law. It is not true that democracy is above the law.

This has also been repeated by those close to the government, saying that judges cannot oppose the will of the people. This is not the case. There can be no democracy without law. There can be formal democracy because there are elections. There are also elections in Russia and Venezuela, but we do not say that they are democracy. Democracy and the rule of law, in a liberal constitutional democracy such as in European countries, are indissoluble. Without the rule of law there is no democracy.

This is the populist code that beats behind this colonisation of institutions.

José Manuel García-Margallo: A car needs two wheels and now we have one broken down. That is what needs to be fixed. Pedro Sánchez has become what Isabel II was, the traditional obstacle. Only when Sánchez disappears will the PSOE, which is absolutely necessary for governability, be able to regenerate itself, to return to what it was, a party that believes in social democracy, in the principles of equality and solidarity, which are the opposite of what it is applying, with privileges and inequalities. Pedro Sánchez is a very strong president inwardly, he has absolute control of the apparatus, but he is extraordinarily weak outwardly because he depends on others, on what his partners tell him.

Fernando Eguidazu: It is not enough to say go away, Mr Sánchez. The destruction and deterioration is so great and coexistence has been so weakened that we have to offer the country something more. We have to offer it a government programme, we have to offer it a State pact, and that should have three parts. First, we have to recover the spirit of the Transition, that is, return to calm, put an end to polarisation, to tension, to confrontation, and seek an agreement with the new socialist party. It is not a question of renouncing programmes, but there are some basic truths, such as constitutional loyalty, the separation of powers, the neutrality of the institutions, the unity of Spain, respect for the law, on which the main political forces have to agree, because all countries that have followed this path have had stability. England has had political stability since 1660, the Netherlands since the same period, the United States since 1865. There is no reason why Spain should not have that stability. We have had it in two periods of history: the Restoration and the Transition. That is the first basis of any future programme, to recover concord and a civilised relationship between the centre right and the centre left.

The second is institutions. It is not enough to return to normality, because what is happening may happen again in the future. Institutions must be shielded, but they are not shielded by laws, because laws are modified by another law. A constitutional reform would have to be made. This is a tall order. It would require consensus among the main forces and broad public support, but it is feasible. In any case, if we really want to protect the institutions, this will have to be considered at some point.

Then, the third leg would be to close the autonomous model. To make it clear which competences belong to the State and which belong to the autonomous regions, to prevent commercialisation. This does not eliminate independence, but it reduces the room for manoeuvre for blackmailing the State. Within this part, the most important thing is the fiscal pact.

These three things are the key to the future and that is what we must offer Spaniards as an alternative, because it is not enough to change the government, because that is a necessary condition, but it is not enough.

José Manuel García-Margallo: The centre right and the centre left must understand each other on the fundamentals. Secondly, the three rules that made the Transition possible: the principle of legality, consensus on fundamental issues and the prudence of not putting issues on the table that cannot be accepted by the other side. To reach economic pacts that will allow us to get out of the situation in which we find ourselves. Countries advance through productivity. In the last few years, productivity in Spain has increased by 0.31 Tbp3T; in the European Union, by 0.91 Tbp3T. In per capita income we have lost almost sixteen years. The Okun malaise index, which is inflation plus unemployment, in Spain is the highest in the European Union and has increased by 50% since Sánchez has been in the Moncloa. In the end we would have to go back to the constitution of Cadiz, to article six, which says that love of country is one of the main obligations of Spaniards who, in addition, must be just and beneficent.

The Rafael del Pino Foundation is not responsible for the comments, opinions or statements made by the people who participate in its activities and which are expressed as a result of their inalienable right to freedom of expression and under their sole responsibility. The contents included in the summary of this conference, written for the Rafael del Pino Foundation by Professor Emilio González, are the result of the debates held at the meeting held for this purpose at the Foundation and are the responsibility of the authors.

The Rafael del Pino Foundation is not responsible for any comments, opinions or statements made by third parties. In this respect, the FRP is not obliged to monitor the views expressed by such third parties who participate in its activities and which are expressed as a result of their inalienable right to freedom of expression and under their own responsibility. The contents included in the summary of this conference, written for the Rafael del Pino Foundation by Professor Emilio J. González, are the result of the discussions that took place during the conference organised for this purpose at the Foundation and are the sole responsibility of its authors.

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