Silva and Vidal, or goodbye to Montesquieu

Xavier Casals
3 min
Silva i Vidal, o l’adéu a Montesquieu

¨Just when I reopened the investigation of Miguel Blesa, the disciplinary dossiers began to fly over my court. [...] With charges like these, all judges could be expelled from their judicial career¨, said Elpidio José Silva in Justice Evicted. And after having ordered prison for Blesa, the former president of Caja Madrid, this judge has been charged with and tried for dereliction of duty in the case. The result has been a sometimes grotesque media trial, given that Silva has taken advantage of it to spread his own European candidacy as leader of the RED (Citizens' Democratic Renewal) Movement. This episode, from our perspective, would be indicative of three political trends that continue to gain strength.

1. The expansion of democracy 2.0. Firstly, the entry onto the political scene of the judge adds a new player to the groups pushing for direct democracy, and which they want to portray as an expression of civil society and not of traditional parties. In general, they want to make an electronic town square on the internet a reality: a participative and immediate horizontal democracy without a vertical leadership. This offer has grown to the point that today it is difficult to differentiate between the profiles of new parties Equo, Podemos, Red Ciudadana- Partido X or the brand new RED party.

In any case, the rise of this new acronym indicates that this democracy 2.0 has taken root because the social networks form the message and at the same time serve to make the new political players known and facilitate low cost popularity. In Catalonia we have seen this with the CUP and Procés Constituent parties.

The continuity of the superjudges. Secondly, Silva has a clear predecessor in his leap into politics in the person of Baltasar Garzón in the legislative polls of 1993. At that time, the famous judge ran as the number two of the candidacy of Felipe Gonzalez in Madrid, and justified his decision claiming a desire to fight against the corruption that affected the PSOE and to regenerate the party. His political career, though, was short-lived: elected MP in June of 1993, he left his seat and career as a government appointee to the national anti-drug program in May 1994, and said that he had been used as ¨a puppet¨ and that it was impossible to fight the corruption of the executive branch.

Garzón's political action at the time was not an isolated phenomenon, but it shaped the emergence in Spain of a populism that emanated from the judiciary. As Antoine Garapon explained in Judge and Democracy (1997), prominent judges everywhere tended to take on a redemptive mission towards democracy, that fed off the discredit brought upon the State and the disappointment with politics, in such a way that the judiciary ended ¨the process of depoliticization of democracy¨. The landmark example of these superjudges was the Italian Antonio Di Pietro, the visible face of Mani Pulite (¨clean hands¨, the great judicial crusade against political corruption), who entered into politics in 1996, was a government minister, and led Italia dei Valori (Italy of Values), a party that wanted ¨a just and honorable country¨. Today Silva is also carrying the banner of regeneration and is portrayed in the media as an outside-the-establishment fighter against the abuse of power.

3. The boundaries between politics and the judiciary are becoming blurred. Lastly, the Silva case shows that the boundaries between the political and judicial spheres are increasingly more diluted, whether due to the emergence of superjudges, the control that the executive powers want to exercise over the judiciary, or because a politicization of the judiciary and a judicialization of politics has taken place. Remember, as an example, the appointment of former PP card-carrying member Francisco Pérez de los Cobos as president of Spain's Constitutional Court, or the media explosion of the union Manos Limpias (founded in 1995, and which adopted the name of Italy´s Mani Pulite).

Now in Catalonia there is a battle being fought on these blurry boundaries between politics and the judiciary: 33 magistrates who signed a declaration in favor of the independence consultation have been investigated by the police. What´s more, one of them, Santiago Vidal, has been revealed as a coauthor of an eventual Constitution for an independent Catalonia, which has led the CGPJ to call him to account.

Therefore, the cases of Silva and Vidal are not unconnected but, rather, they are an indication that politics is increasingly under judicial scrutiny, as shown by the discussions that seek to contrast legality and legitimacy in the independence process. Today, political battles are won as much at the polls as in the courts of law, while we attend the discreet burial of Montesquieu and his separation of powers.

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