Why this is prevarication, by Professor Javier Perez Royo

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Photo: Jordi Sanchez, in an archive photo (Credit: EFE)

By Javier Perez Royo

13th March, 2018

On February 28, I published an article entitled “Prevarication against Democracy”, in which I warned that a decision by judge Pablo Llanera that prevented the candidate proposed by the President of the Parliament from attending the investiture session would be a prevaricating decision. The prevarication was consummated last Friday with the judge’s decision that the reader almost certainly knows.

Given that the accusation that I am making is serious, I will try to explain it, out of respect for the Judiciary and also for readers.

The crime of prevarication amounts to a defaulting of the principle of democratic legitimacy of power. Within the Constitutional State there is no exception to the principle of democratic legitimacy. Any exception – any – is a contravention of the principle.

In the case of powers of a political, legislative and executive nature, democratic legitimation is visible. Citizens elect the Parliament and then the Parliament elects the President of the Government.

In the case of powers of a legal nature – those of the judiciary -, democratic legitimation is not visible. Hence, the judge must make it visible every time he or she acts. That is why judgments, judicial decisions, “will always be justified,” says article 120.3 CE. The justification of judicial decisions is, above all, a requirement of the principle of democratic legitimacy. It also fulfils the function of not creating the defendant’s defencelessness. But the visibility of democratic legitimation comes first. It is the way in which the judge has to prove that he acts as a “power of the State”.

In each step the judge has to demonstrate that it is the “general will” and not his “personal will” that prevails in his or her decision. And he or she has to do it by interpreting the legal norm that is relevant to the issue on which he has to decide. And this has to be done by also making use of the rules of interpretation that are generally accepted in the world of law.

In last Friday’s ruling there is absolutely none of this in the part relating to the judge’s decision to prevent the candidate proposed by the President of the Parliament from being able to attend the investiture session. I do not agree with the first part of the ruling regarding the extension of the provisional detention, but in that part there is the appropriate legal reasoning. In the second part of the ruling, there is no legal reasoning. There is a semblance of reasoning, which is not the same.

The investiture of the President, like that of any of the other Presidents of Autonomous Communities, is part of the so-called “constitutionality bloc”, that is, part of the combination of the Constitution and the Statute of Autonomy. No other legal norm can penetrate this domain, in which there is what could be called a “constitutional reservation”. Only the constitutive norms of the “bloc of constitutionality” can regulate it.

Any decision that is made about the investiture process has therefore to be based on those rules and nothing other than those rules. There is no other relevant norm for the judge to rest his argument on.

And what the “block of constitutionality” says is crystal clear. Article 152 of the Constitution requires that the president of a Autonomous Community must be a member of Parliament. The prime minister of the Government of the Nation does not have to be one, but the president of a Community does.

The Statute of Autonomy requires that he or she be proposed by the Speaker, after talks with the spokespersons of each of the parliamentary groups and, after the investiture debate, an outright majority is required in the first ballot and a simple majority forty-eight hours later.

Obviously, though the “constitutionality bloc” does not say anything about it, it is understood that the proposed candidate must be in possession of the right to vote, that is, he or she has not been deprived of it by a final court judgment.

This is all the “constitutionality bloc” says and this is only what the judge may take into consideration when making a decision about a candidate proposed by the Speaker of the Parliament for the investiture. I do not think it needs to be remembered that the Constitution and the Statute of Autonomy are legal norms and that they are the supreme norms of the legal structure and that it is not they that have to be interpreted in accordance with ordinary laws, but quite the opposite: ordinary laws have to be interpreted in accordance with them.

What judge Pablo Llanera did in last Friday’s ruling was quite the contrary. In the second part of the ruling there is no legal reasoning. There is legal charlatanism, which is quite different. There is not a single reference to the Constitution and the Statute of Autonomy, as if they were not directly applicable legal norms. In this case they are not only directly applicable, but applicable to the exclusion of all others. It is a classic case of prevarication*. The investigating judge has made up his mind to prevent candidate Jordi Sánchez from attending the investiture session because his heart told him to do so, but not for any legally relevant reason.

A judge’s prevarication* cannot constrain the investiture of the President of the Generalitat.

* =  “Prevarication” is an abuse of authority, an offence committed when an authority, judge / lawyer or public official issues an arbitrary resolution in an administrative or court affair, in the knowledge that this resolution is unfair, and therefore violates the duties of the public servant.

Such acts are displays of abuse of authority.

Original Link (Spanish): https://www.eldiario.es/zonacritica/prevaricacion_6_749685061.html

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