Wednesday, November 14, 2018
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Editorial

​The president of the High Court calls for responsibility and understanding from all institutions to ensure judicial independence

With all the tension occurring over the Catalonia issue, we waited with baited breath for Carlos Lesmes's discourse, president of the Supreme Court and the General Council of the Judiciary, at the inception of the Judicial Year.


Carlos Lesmes


He did not disappoint in his discourse, in which he stated that "Judges assume the leading role that society entrusts to us for their defence with self-denial, prudence and responsibility...The democratic Rule of Law does not admit disintegration between law and democracy nor between democracy and judicial power".


The president of the High Court called for "responsibility and understanding" from all institutions to ensure judicial independence as one of the basic pillars of democracy.


He also asked for an attitude of "constitutional loyalty" from the Public Powers" as a premise to maintain a fruitful and tolerant dialogue between them at all levels.


On the 40th anniversary of the Constitution, Lesmes highlighted the imprint of the constitutional text as the foundation of coexistence and freedom, "particularly when its legal value is devalued, when democratic principles are confronted with the Rule of Law or when it tries to erode the legitimacy of the judicial power through actions that far exceed the freedom of expression or the right of defence."


INDISPUTABLE RESPECT FOR THE LAW


In his discourse, the president of the Judiciary also referred to the "serious uncertainty" that recent judicial decisions in other EU states have generated by unilaterally interpreting regional legal concepts of the so-called European area of freedom, security and justice; what has caused "the widespread perception of an unpardonable loss of form and virtue of certain instruments of judicial cooperation" based on mutual trust.


"Nevertheless, a strong, united and cohesive Europe has to consolidate its leadership through the values of the Rule of Law and, for this reason, despite the difficulties, our Justice is called upon to safeguard the Constitution, precisely because it is the most intense expression of our commitment to Europe", he added.


Lesmes also recalled the words of the German lawyer Otto Bachof when he took office in 1959 as rector of the University of Tübingen and said that "one might think that, perhaps, too much weight has fallen on the judges shoulders, a statement shared by those who denounce the 'judicialisation' of matters of a political nature."


"However, although only through political action can significant changes in society made or solutions to the most serious conflicts be provided, it is clear that respect for the law is inalienable, as is its constant judicial safeguard," de remarked.


Lesmes added that "these premises are unknown when, from certain public powers, instead of preserving that right in the framework of an inclusive society, citizen disaffection with the judiciary is fed -once again, by the unfocused view that no judge can decide against the popular will- demonstrating an absolute ignorance of the dimension and meaning of the Rule of Law ".


In this way, he assured that "the democratic Rule of Law does not admit disintegration between law and democracy nor between democracy and judicial power", and that those attempts of disintegration, "far from weakening the judges, reaffirm, on the contrary, their operativity to respond with efficiency and absolute independence to the attacks against the amalgamating framework represented by the Constitution".


"Faced with the truth after the fact, which pursues impunity under the apparent shelter of popular will, the general public has to realise that the response of the judiciary is aimed at avoiding the damage that involves dismantling nothing less than an entire intergenerational cohabitation pact, then, if such a response did not occur, the effect would be devastating and the system of freedoms would be fatally weakened", he concluded.


A FULLY DEMOCRATIC CONSTITUTION


The president of the Judicial Power also said that a Constitution "can only be described as fully democratic when it allows itself to be changed" and recalled that the Spanish one "provides its own mechanisms of reform and even substitution to satisfy the defends of legitimate change that allow us to get over stares of dissatisfaction, without having to impose them", unlike the French or the German ones, "no legal nucleus is inaccessible to change ".


"But a fully democratic Constitution, and ours is so, requires that its reform is undertaken by the mechanisms provided for in the constituent pact itself. The opposite would mean to release power of all subjection to right to the people, with irreparable damage for the freedom of the public at large", he added.


Lesmes also made reference to the fact that "sometimes violence or cunning -or even the combination of both- have allowed a certain organic model of constitutional democracy to be overwhelmed when established procedures were not following, but let's not forget that these processes of subversion, by ignoring the values and principles of the Rule of Law, deeply divide society, seriously alter coexistence and can have devastating effects on the internal peace of a State.


"Therefore, when the Constitution is under attack, it cannot renounce defending itself, because that would mean renouncing the defence the principles under which it was configured, and of the State itself, which is democratic and lawful", he warned.


JUDICIAL INDEPENDENCE, THE PILLAR OF DEMOCRACY


The president of the High Court and the General Council of the Judiciary (CGPJ, the abbreviation in Spanish) has stated that judges, "concious that the formidable set of principles and values of the Constitution constitutes an existential condition of our model of coexistence, we assume with self-denial, prudence and responsibility the role entrusted to us by the society for its defence".


Lesmes recalled that some reactions to judicial decisions have led, "even to personal attacks on magistrates, encouraged not only from certain social sectors, but what is more worrying, on some political leaders, the criticism of whom is reprehensible within the framework of normalcy and institutional respect"; and has warned that "biased or partisan views that pursue the gratuitous discredit of the judicial institution may affect the freedom of mind and the calm with which the constitutional responsibility to judge has to be exercised".


Faced with these situations, he went on to say that the CGPJ "has acted and will continue to do so, without hesitation, in defence of judges and magistrates and of their decisive and indispensable task of protecting and guaranteeing the rights and freedoms of all the public at large".


In addition, he called for "responsibility and understanding from all institutions, not by a misplaced corporate spirit of defence of judges, but by the need to ensure the independence of the courts, as one of the basic pillars of the rule of law and democracy itself."


CONSTITUTIONAL LOYALTY


Finally, Lesmes said that the Constitution arbitrates a model of coexistence, but that the key to its effectiveness lies "in the ability to generate the 'emotional attachment' of a majority of the public at large".


"The notion of 'constitutional loyalty' thus acquires a significance," he said before adding that this loyalty should not necessarily imply "an uncritical emotional identification" with the Constitution, but "a sincere and positive attitude when interpreting and applying its rules". Moreover and above all, to appreciate that our fundamental norm is inextricably linked to the guarantee of the supreme values of a free society, without which it is not recognizable as such".


This attitude, he added, "is desirable not only for the public at large, but also for public powers, as a premise to maintain a fruitful and tolerant dialogue between them at all levels, without perversions or ambiguities in the use of language, giving words the sense that corresponds to the reality of what is meant by them".


Lesmes ended his discourse by calling for a concerted effort "so that society finds reasons for adherence" to the Constitution and to explain its "formidable legacy", without renouncing its reform "if the Spanish people demanded it, the depository of sovereignty".


"Meanwhile, a healthy sense of identification with the model of our State deserves to be valued with the serene vision, typical of a mature society that recognizes, regardless of frivolities and demagogies, that no Constitution in Spain's hazardous political history has given rise to a coexistence in peace and freedom such as the current 1978 one has given us", he concluded.

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