A sad story about politicians and the decline of the rule of law

Who stole my illusion of the rule of law?

23 / Jan

The new year has started and the calendar is already full of appointments and deadlines. We closed the office for two weeks to catch our breath, but experience shows that this is impossible. There are always emergencies matters that do not care about our holiday plans, overdue work, planning for 2023, etc.. The dynamics of business today are sometimes stifling. This Christmas period has been no different.

We now live in a world where regulations change almost monthly and the requirements for a simple act like, say, transferring an amount between Spain and abroad increase exponentially. Speaking of dozens of acts to be performed in a day where we are up against high bureaucratic walls, it is easy to imagine that we lose a lot of time with useless and mind-numbing little things that have nothing to do with law.

But this phenomenon caused by a government that wants to intervene ever more deeply in our lives with contradictory rules on the one hand, and on the other hand does not allow any correction by judges or citizens and where necessary quickly adjusts its rules to circumvent those corrections and still get what it wants, also makes legal work increasingly difficult.

In light of this phenomenon, I read an article by a well-known author and judge, Jose Ramon Chaves. Normally he is neutral in his commentary, highlights cases from different perspectives and with a businesslike view, but in the month of December he wrote an article that stands out and which I think is interesting for our clients to take note of. I think it is good despite the dynamics of daily life to occasionally reflect on other issues that are also important.

We have translated it. It goes under the title “Who stole my cheese of illusion of the rule of law?”, a title that draws on Spencer Johnson’s fable called “Who moved my cheese”. Here is the translation of the following article:

“¿Quién me ha robado mi queso de la ilusión por el Estado de Derecho?”

I am returning from a trip to Madrid after two successive legal conferences, with the participation of many people who believe in the Law and in its capacity to order life in society, achieve peace and guarantee basic rights.

And when I listen to the political news first thing in the morning, I am perplexed. I wonder if it is a hoax or if there is a hidden camera and I am the subject of an experiment.

Three long decades studying law, publishing on what it is and what it should be, trying to settle disputes in law, and I have the feeling that the title of a well-known best-seller reveals: Who moved my cheese; what sunburst or moonburst has caused politicians to behave so irresponsibly in what should be a state of law?

I can only use my status as a citizen to exercise my freedom of expression as an outlet or a cry in the wilderness. The current panorama of the rule of law and the division of powers seems to be a blend between Donald Trump and Groucho Marx on a bad day:

– A recently passed law, with rigorous formalities and safeguards, that is interpreted disparately by judges and courts.

– A parliament that instead of modifying the law, modifies the Preamble with the self-confessed aim of imposing on judges “the way to interpret the law”.

– A Constitutional Court that will address the admission and precautionary measure against the suspicious legislative decision, in order to adopt the eventual unusual measure of blocking the parliamentary decision.

– Firm, laborious and fully guaranteed criminal sentences, which are emptied with the magic hand of a law so that the lion’s tail erases the traces of its claws. 

– A whole country, with all its institutions and bodies, which see the pillars of rational and stable laws, subject to short-term negotiation with minority groups, by means of an electoral price or unmentionable booty.

– Political parties (the two majority parties, yes, both of them) that have tolerated, during numerous successive legislatures, the chumminess in the appointment of the members of the General Council of the Judiciary and the Constitutional Court.

– A General Council of the Judiciary that has become a ghost ship, since not only is it in office, but in its painful work it has not earned the legitimacy and respect (quite the contrary) to decide on judicial or Constitutional Court posts.

– Politicians who use and enjoy labelling judges’ appointment quotas as “conservative” or “progressive”, perverting the essence of appointments for which the Constitution only wants merit, ability and prestige.

I am saddened by how low the vast majority of politicians and rulers of all stripes have fallen. Justice, the laws and the division of powers are played with impunity. The rules of the democratic game, good faith and chivalry have been exchanged for post-truth, knife-pointing and personal disqualification. And witticism turned into law produces monsters.

A sad, sad panorama and a disdain for the common citizens who only want judges and courts to exist and independently resolve cases according to the law, and not to witness a spectacle of cobra and mongoose fighting matches.

…. while the courts and tribunals are collapsing

…. while the Constitutional Court accelerates or sweeps under the carpet the lawsuits according to the political impact.

…. while the condemned get a substantial Christmas reduction in their sentences

… while embezzlers are rubbing their hands together

… while those who are out of office in the General Council of the Judiciary are paid as if they were working …

Desolating. Outrageous. With what face can I speak publicly that we are in a State of Law that politicians have to twist, what a bad joke is this about legal certainty or the independence of the Constitutional Court?

I fear that many of us jurists feel that we are writing and talking about the Rule of Law like the musicians on the Titanic, playing the melody while the ship is sinking, waiting for the lifeboat of a moral and institutional regeneration that seems increasingly distant.

And yes, I have been robbed of the cheese of my illusion for Law and Justice. I only hope that the waters return to their course before it is too late. For the good of all.

Said by citizen J.R.Chaves on 15 December 2022, the coldest winter legally speaking that I have ever experienced in my entire life.

Roeland van Passel