Yesterday we saw the data from the authoritarian drift that the government of Pedro Sánchez has taken. It is logical to ask: how has Spain reached this point?
Obviously, the degradation of a democracy is not something that usually happens overnight, unless an extraordinary and convulsive event occurs, such as a coup. In fact, this slow degradation means that many citizens do not notice it. However, there have been some moments that have accelerated this degradation, by bursting one of the mechanisms that every democracy needs to avoid taking an authoritarian drift: those that limit the action of political power and serve as a brake to their abuses.
The brakes of the Constitution of 1978 against abuses of power
The Constitution of 1978 established three important mechanisms to stop abuses of power. The first is of an individual nature: the protection appeal to the Constitutional Court (TC), and its purpose is to stop possible violations of rights by citizens. The second is the unconstitutionality appeal, with which 50 deputies or senators can appeal laws to the Constitutional Court if they consider they violate the Constitution. The third is the question of unconstitutionality, which is similar to the appeal, but imposed by a court or tribunal. Article 165 of the Constitution remitted the operation of the Constitutional Court to an organic law. In this way, the keys to the brakes on abuses of power were left in the hands of those who could commit them.
The previous appeal of unconstitutionality approved in 1979
In 1979, during the term of centrist Adolfo Suárez, the Organic Law of the Constitutional Court was passed. In its original wording, its Article 79 established a prior unconstitutionality appeal for the statutes of autonomy and organic laws (which are in charge of regulating fundamental rights). This mechanism was introduced in order to prevent a government from infringing fundamental freedoms and rights through a fait accompli policy, that is, taking advantage of the possible delay of the Constitutional Court when issuing a ruling on an appeal.
This prior appeal meant that an organic law appealed before the Constitutional Court could only enter into force once that Court resolved the appeal. In addition to stopping possible abuses of power, which was its main purpose, this legal mechanism it also created a culture of consensus that forced the opposition to agree on laws on fundamental rights, otherwise a law approved without consensus and that was harmful to fundamental rights could be stopped and annulled before coming into force. This mechanism also forced the Constitutional Court to be diligent when resolving appeals, otherwise it could lead to the indefinite blocking of fair laws.
In 1985 the Socialists eliminated this previous appeal because it was in the way
In 1982 the Spanish Socialist Workers' Party (PSOE) came to power after winning the general elections by an absolute majority. The ideological agenda of the socialist government of Felipe González soon collided with this legal brake on the abuses of power. In 1983, the socialists approved a law to decriminalize abortion, a law that implied a de facto legalization of the act of killing unborn children, seriously injuring the most basic of human rights: the right to life. The deputies of People's Alliance (AP) and the Union of the Democratic Center (UCD) voted against this law, which was appealed that same year before the Constitutional Court by 54 deputies from both parties. When this organic law was appealed, its entry into force was suspended.
The socialist ideological agenda had accelerated, and the same thing happened with five other organic laws approved by the PSOE in its first two years of government, laws that affected fundamental rights, like the one on abortion, and that the Socialists refused to agree with the opposition. Instead of opting for an agreement on delicate matters that affected the development of our freedoms, the PSOE decided to simply remove this brake on abuses of power, approving an organic law that suppressed the previous appeal of unconstitutionality by deputies and senators, limiting it to the government (that is, to the very political power whose abuses it tried to stop that previous appeal).
The then socialist vice president said that Montesquieu had died
In the preamble to this reform, the socialists had the cynicism to argue that "this previous resource has been configured as a distorting factor of the purity of the system of relation of the constitutional powers of the State" : shortly after they approved an Organic Law of the Judiciary that liquidated the separation of powers, by granting the government control of the General Council of the Judiciary and the Constitutional Court. A few months before approving that law, the socialist Alfonso Guerra, vice president of the government, said: "Montesquieu is long dead", referring to the Baron de Montesquieu, who formulated the democratic principle of the separation of powers in 1748.
The violations of fundamental rights that triggered that measure
The result of that blow to democracy has been seen in subsequent organic laws that have been appealed to the Constitutional Court. The recourse to the 2010 abortion law, also approved by the Socialists, has not been resolved for 12 years. In this way, the Socialists have been able to impose their ideological agenda every time they have governed, through a fait accompli policy that allows infringing fundamental rights by taking advantage of the slowness of the court in charge of protecting them. A court whose independence is purely fictitious, since the big parties, the PSOE and the Popular Party, have shamelessly shared the appointment of their magistrates for years.
The Popular Party did not recover to the previous appeal when it governed
In 2010, with the PSOE in power, the Popular Party presented a bill to recover that previous appeal, which was rejected with 186 votes against, 144 in favor and 1 abstention. The Popular Party was able to approve this initiative during Rajoy's term, but it did not despite having an absolute majority, nor did it during José María Aznar's term.
The result is a political regime in which the government can harm fundamental rights without any effective restraint, and with a Constitutional Court that usually resolves appeals late and when the damage has already been done. The socialists are the main culprits for having led our democracy down this authoritarian path, but the Popular Party is also responsible for not having done anything to repeal the outrages committed by the PSOE.
In 2020 Vox proposed to recover the previous appeal of unconstitutionality
Faced with two major parties that have led us to this situation, we Spaniards only have one hope left: in 2020, Vox party proposed to recover the previous appeal of unconstitutionality. That party did not limit itself to formulating that idea: on December 10, 2020, Vox presented an organic law proposal to recover this brake on abuses of power. To this day, two years later, this initiative has still not been voted on in Congress, whose Bureau is controlled by the PSOE and its ultra-leftist allies from Podemos.
Photo: PSOE. The three socialist presidents who have governed Spain in the last 40 years: from left to right, José Luis Rodríguez Zapatero (2004-2011), Felipe González (1982-1996) and Pedro Sánchez (since 2018).
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