MARC MOLINS I RAICH
PhD in Law and criminal lawyer
The president of the Generalitat, Quim Torra, in the Superior Court of Justice of Catalonia (Andreu Dalmau / EFE)
The ruling recently handed down by the Second Chamber of the Supreme Court in the case of the banners has once again generated a certain debate in the street.
On this occasion the facts prosecuted are not controversial, since President Torra expressly acknowledged having disobeyed the mandates of the Central Electoral Board: “As in the movies …, yes, I disobeyed the mandate of the JEC.”
In the exercise of power, institutions must remain neutral
Despite this explicit recognition of the facts, the legal analysis is not straightforward and has required almost two hundred pages of legal reasoning contained in the two rulings that have been issued before the Constitutional Court and the European Court of Human Rights pronounce themselves.
One of the most controversial arguments, probably the one that has generated more debate in the legal and social sphere, is the one that refers to the hierarchy of the JEC to give orders to the president of the Generalitat during the electoral period. In the understanding of the defense of President Torra, as the country’s highest authority he could not receive or have to obey the orders of this administrative body, so that the disobedience he recognized should not have any judicial repercussions.
The legitimacy of the Central Electoral Board to issue binding orders during the electoral campaign is defined in the legal texts and has been the subject of a profuse technical elaboration by the jurisdictional bodies called to prosecute the case. In spite of everything, this time I would like to dedicate a brief full stop to assess the concept of power and hierarchy that, in my opinion, distills the defensive approach that President Torra chose.
The political and institutional supremacy of the presidency of the Generalitat de Catalunya in its field of competence is unquestionable. The legal system itself recognizes this condition and, in the face of involution attempts championed by some political parties, it must make us maintain a firm and calm struggle to ensure that they remain in force.
Despite this, the problem arises precisely at the moment when the meaning of this supremacy and the power it embodies is misunderstood, denying the legitimacy of any dissenting approach.
When power is not understood as a source of obligations, as a limit to the ability to act, as a reason for respect and consideration for the people over whom it is administered, as a reduction in one’s freedoms and free will, as an obstacle to one’s own desires …, when power is conceived as a faculty that empowers without limits, that legitimates without exception, that exonerates responsibilities and that enervates hierarchies … when that happens, compliance with the law becomes but a choice and the collective order a mere expectation conditioned by chance of the circumstances.
In this scenario, beyond what the deviation of power itself represents, institutions become strict instruments of superfluous and irrelevant gestures placed at the service of the current discourse.
In a democratic and legal state, power creates obligations because it is only considered legitimate when it is exercised with scrupulous respect for people who disagree with the one who administers it. In this scenario of responsible exercise of the conferred power, the institutions – not the people – have to maintain an exquisite neutrality, since this shows the ethical and legal limitations that distinguish the citizen from the ruler.
With total independence of the success or failure of the rulings handed down to date – we will need time to fully assess them -, and of the ideas that the disobedient act intended to defend, the fact of obviating the fulfillment of a mandate that is intended as a guaranteeing of the free formation of the vote by arguing the lack of external limits evidences an improper way of understanding the power of our times.