Vicente Guilarte, Consuelo Madrigal, Manuel Aragón and Andrés Betancor
On 20 June at 7 p.m., the Rafael del Pino Foundation organised a dialogue entitled "Institutions of the Democratic Rule of Law" with the participation of Vicente Guilarte, Consuelo Madrigal, Manuel Aragón and Andrés Betancor. On the occasion of the publication of the work entitled "Instituciones del Estado Democrático de Derecho, Conversaciones. Contribution to the civic culture of democratic institutionality", coordinated by Andrés Betancor.
Vicente GuilarteGutiérrez. President of the CGPJ, deputising for him, from 20 July 2023. Doctor of Law. Practising lawyer since 1979. Professor of Civil Law. He has been counsel to the Spanish Association of Property and Mercantile Registrars and legal advisor to the University of Valladolid and is a member of the Royal Academy of Legislation and Jurisprudence of Valladolid.
Consuelo Madrigal Martínez-PeredaSpanish jurist. From January 2015 to November 2016, she served as Spain's Attorney General, the first woman to hold the position in the institution. A graduate in Law from the Complutense University in 1978, Madrigal entered the prosecutor's career in 1980 and has been assigned to the Prosecutor's Offices of Santa Cruz de Tenerife, Palencia and Madrid, as well as to the Court of Auditors. In the Attorney General's Office, she was a prosecutor in the General Technical Secretariat during the mandate of Carlos Granados. Until 2008, she was Prosecutor of the Criminal Chamber of the Supreme Court and in February 2008 she was appointed to the post of Prosecutor General of the Spanish Supreme Court. Appointed Coordinating Prosecutor for Minors by Attorney General Cándido Conde-Pumpido and reappointed in 2013 by Eduardo Torres-Dulce. Following the resignation of Eduardo Torres-Dulce as Attorney General of the State in December 2014, the Government proposed Madrigal to fill his position. Since April 2018, she has been a Full Member of the Royal Academy of Jurisprudence and Legislation, occupying the vacancy of the 41st medal of the corporation.
Manuel Aragón is Professor of Constitutional Law and Emeritus Magistrate of the Spanish Constitutional Court. He was director of the Centro de Estudios Constitucionales and member of the Consejo de Estado. He has been President of the Economic and Social Council of the Community of Madrid. Disciple of the former Vice-President of the Constitutional Court and former President of the Council of State, Francisco Rubio Llorente. He was Dean of the Faculty of Law at the Universidad Autónoma de Madrid. He was actively involved in the academic training of His Royal Highness the Prince of Asturias, for whom he was tutor when Don Felipe studied law at the Autonomous University. He is a member of the Royal Academy of Jurisprudence and Legislation. He is also a member of the Royal Academy of Sciences, Arts and Letters of Cordoba. Honorary doctorate from the Universidad Juárez Autónoma de Tabasco (Mexico). He has been ordinary lecturer in Comparative Constitutional Law at the University of Florence (Italy) and visiting lecturer at various European and American universities. He is an extraordinary professor at the Universidad Externado de Colombia and the Universidad Nacional Autónoma de México. In Spain, since 1979, he has been Professor of Constitutional Law at the universities of Zaragoza, Basque Country, Valladolid, Complutense de Madrid and Autónoma de Madrid. He retired as a professor from the Universidad Autónoma de Madrid, where he currently continues to carry out his university duties as an "emeritus" professor. He is the author of a dozen books and more than two hundred scientific articles on Constitutional Law.
Andrés BetancorProfessor of Administrative Law at Pompeu Fabra University, Barcelona (since 2003), author of books, chapters and articles (more than 120 works) in his field of specialisation (public law, control of power, administrative organisation, economic and environmental regulation). He is a regular contributor to the media, in particular to the newspaper El Mundo, as well as to Expansión (more than 200 articles). He currently directs the programme "Institutions of the Democratic Rule of Law" at the Rafaél del Pino Foundation.
Summary:
On 20 June 2024, the Rafael del Pino Foundation organised the dialogue "Institutions of the Democratic Rule of Law". The event was attended by Vicente Guilarte Gutiérrez, President of the CGPJ, deputising for him from 20 July 2023; Consuelo Madrigal Martínez-Pereda, former Attorney General of Spain; Manuel Aragón, Professor of Constitutional Law and Emeritus Judge of the Constitutional Court of Spain; and Andrés Betancor, Professor of Administrative Law at the Pompeu Fabra University.
Manuel Aragón: Institutions are the fortress of the system, but the fortress holds if the garrison is good. They are the fortresses of the system, but for them to be so, they have to be fortresses with a well-established defensive structure, well served by their incumbents. If institutions decline, erode, the system decays. Without strong institutions there is no economy to sustain itself, no society to live in freedom, no checks on power, no structure that amalgamates a political system into a constitutional democracy. But institutions have to conform to two principles, firstly that they have sufficient powers to perform their duties. The second is that they have to be organised in such a way that they form a complex capable of mutual control; the division of powers is an institutional division. Institutions of control, whether regulators or courts of law, have to be impartial and independent, and be aware that their powers are limited by the constitution. In a constitutional system, no sovereign institution, not even Parliament, all have their power limited by the Constitution, so that Parliamentary sovereignty is a fallacy. If Parliament were sovereign, it would mean that the parliamentary majority would be sovereign, which leads to despotism. In a democratic state there is no sovereign other than the Nation, which depends on the people, the living element of the Nation. If this were not the case, the Constitution would be a blank page on which the legislator could write at will, it would lack legislative force. Since the Constitution limits power, it cannot be admitted that Parliament is sovereign.
Consuelo Madrigal: The Public Prosecutor's Office objectively defends, under the principles of impartiality and legality, legality, citizens' rights and the public interest. Sometimes, lately, we see that one's own freedom is invoked in order to trample on the freedom of others. We prosecutors then ask ourselves whether there are uses of freedom that are a risk to democracy and to freedom itself. The answer is that everyone is protected by the law; what protects citizens is not freedom, but the law. Therefore, we have to interpret the defence of legality as it is structured, which ends at a pinnacle with the Constitution and the Treaty on European Union. Prosecutors are committed to this triple level of legality. There are cases where prosecutors are faced with a law that may raise the dilemma that the preamble of the law invokes the sovereignty of the Cortes to shape the will of the people. The dilemma continues if there are issues that violate ordinary legality. Then, the prosecutor has to defend this triple legality, first by excluding the national precepts that oppose European legislation, by raising, if necessary, the confrontation of that law with European Union law, and by urging the non-conformity of a law with the Constitution.
Vicente Guilarte: The CGPJ and its function is to defend judicial independence. In order to be able to do so, it has to participate in this idea, to be an independent Council. If it is flawed from the outset, it drags down the mechanisms that it then activates. We all have to assess to what extent we are helping or not to promote judicial independence. The Council must defend that independence in the face of specific attacks on it.
Manuel Aragón: Today, democracies do not usually die by force, but by their internal deterioration. This, which is linked to institutions, is one of the main real threats to constitutional democracy. This threat consists not in destroying the constitution by force or by unlawful means, but in falsifying it. Jurists have to react firmly and continuously to this. There is another threat related to the previous one, which is the occupation of the institutions by political parties. The place of the parties is the parliament, not the institutions of technical control. This destroys the division of powers, it destroys controls. There are political wills that take over almost the entire state. The problem is how to react. There are debates in the Congress of Deputies that are truly embarrassing, in which there are lies, insults, political polarisation, frontism. This is happening today in most democracies. How do we deal with these threats? First of all, by making public the opinions of those who think that this is the way to decide the system, but in a reasoned and reasonable way, from the professoriate, the newspapers, the books. But that is not enough. The call for harmony, consensus, constitutional values and principles, judicial independence, has been a constant in the reign of Felipe VI since the first day of his accession to the throne. Those words represent me perfectly.
Consuelo Madrigal: The defence of legality is not exclusive to prosecutors. Legality is defended, in the first place, in Parliament by making good laws, in accordance with the principles of good legislation, necessity, rationality, technical information, comprehensiveness, reports, debates. In other words, a law that comes from deliberation. Prosecutors must also defend bad laws, because of this perversion of legislative deterioration, even when that deterioration is the decree-law, but we must always defend what comes from Parliament with the Constitution. What threat is there? If the institutions are invaded by partisan influence, if they are colonised by members of a particular ideology, this is the threat. This is the threat. How can this be remedied? By amending the statute of the Prosecutor's Office to bring its ordinary and statutory functioning into line with the Constitution itself. It is not just that the attorney general is appointed by the government, but that, once appointed, he or she remains a vassal of government decisions. This can happen and must be avoided by regulating these relationships and reducing them to the essential minimum, but subjecting them to guidelines of transparency and accountability. It is also necessary to establish a catalogue of conditions of suitability that cannot be ignored, including the guarantee of impartiality. It is not enough to leave everything to the personal disposition of the attorney general. It must be guaranteed in the same way that judicial independence is guaranteed. The main guarantee of this is the demand for accountability linked to their decisions, just like judges. This is what is pending, the responsibility of public prosecutors in general and, above all, that of the Attorney General of the State. This places us before a State power with an immense impact on the lives of citizens, the power to accuse, to promote, encourage or discourage criminal investigations of friends or enemies, as the case may be. A power exempt from the corresponding responsibility.
Vicente Guilarte: The CGPJ block is much worse than this relative paralysis of the courts. The bad thing is the institutional degradation. What is perceived is that we are in something very complex, that there is no way out, that is degrading the judiciary. That is the big problem. Institutions have to be strong, so we need to return to constitutional channels and a council that is truly strong. The problem is political appetite, the desire to have a majority quota in the Council. It is very difficult to have two majority quotas. The second milestone is to maintain relative discretion in the appointment of senior officials. The appointment of senior officials should be made objective. The principle of merit and ability should fully apply to appointments and the person who assesses this principle should have the status of an eligible person. Judges should have a direct say in such appointments. If this is achieved, the problem, the appetite of political power to capture the Council, will be alleviated.
Manuel Aragón: Democracy is like the grass in a garden, which receives its sap from the bottom up, but its maintenance is from the top down, through continuous watering and care. That is what democracy is like. Its legitimacy comes from the bottom up, the will of the people. But its maintenance comes from the top down, through education and the teaching of customs, through the exemplarity of institutions and political leaders. Democracy cannot be maintained by inertia alone. Without citizens committed to the values of democracy, without a sufficient majority of these citizens, democracy perishes. The law cannot do everything. It is important that there are jurisdictional controls. They are indispensable requirements, but they are not enough. The social guarantee of the Constitution is the strongest, even if it is the least institutionalised. If citizens are jealous of their freedom and vigilant in the face of oppression or the distortion of institutions, democracy, even if it has jurisdictional and political controls, cannot be maintained. This constant watering down from the top down. That is what takes hold. If this watering is lost for a long time, it dries up and takes a long time to recover. Without a collective constitutional spirit, a constitution cannot be maintained. Ours is a good Constitution, which has no problems. It has problems in its application because of its distortion.
Consuelo Madrigal: Citizens, when we are in a situation of risk, are the great hope. The parties have laminated civil society. That is why this is the time for citizens, for civil society. This framework is what gives validity or otherwise to political and social discourse. We must strengthen this civil society framework, create new spaces for freedom and debate in the digital and analogue world, in which the right to assembly, communication and participation is exercised. How can this be achieved? With education, with exemplarity. We need to raise the ethical tone of public life, to have the courage to speak of ethics in public life. Being a citizen is an ethical and moral duty, but it is not easy, so we have to help.
Vicente Guilarte: Judges are exemplary and we must help them to be so. Exemplarity is decisive, because the media terminals of politics are becoming stronger and stronger. Politics believes that capturing the judiciary is their obligation and they are trying to do so.
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