Do not despise procedure, do not despise democracy, by Francesc de Carreras

There is a widespread awareness in Spain that the rules of the political game, fundamental agreements that were respected until recently, have been violated. This situation started about ten years ago in Catalonia and after a while it got involved in Spanish politics.It’s already openly in a motion of no confidence in 2018.

In some cases, legal rules are broken and this can be corrected by going to the courts, but delay in resolving them will inevitably cause collateral damage; In other cases, political rules that are not expressly stated in the law are broken and these rules are more difficult to correct because their return depends on the will of those who violate them. In addition, the latter widely contributes to discrediting the democratic system and reducing citizens’ trust in their institutions. Perhaps this is the intention of its authors: Let’s not forget that there are parties in the government and some parliamentary groups that support it, trying to break the political system. Therefore, we are faced with a dangerous situation of constitutional overflow.

Examples abound: non-renewal of members of constitutional bodies in violation of a clear constitutional duty, Royal decrees without the presumption of “extraordinary and urgent necessity” required by the Constitution, The suppression of the crime of sedition, which is in fact an amnesty in disguise,d hoc for some perpetratorsThe low technical quality of the laws that lead to the opposite of what the legislator intended, as can be understood from the implementation, recently passed law to reform the crime of sexual harassment and assault. As with the so-called lawsuit, some have been the subject of controversy. trans law.

«Disrespect shows that laws are viewed as simple powers of the Executive»

What is the main common and cross reason for all this nonsense? The disregard for procedure, both in appointments and in the drafting and approval of laws, this also implies contempt for democracy and shows that laws are viewed as simple orders of the Executive, not the product of popular deliberation and consensus. the cameras have the necessary transparency so that citizens can also participate with their opinions.

This is a typical populist form of government: parliamentary procedures are considered to be simple—annoying, of course—means to get what the parliamentary majority wants. It is forgotten that in a representative democracy procedures are not only instrumental but also important. It is forgotten that democracy is not just a decision, but also deliberation and discussion before reaching agreement or consensus.

Félix Ovejero in the short and bright opening pages of his latest book Separatism and democracydistinguishes between two models of democracy: deliberative democracy and deliberative democracy, both are separated by an imprecise boundary. So, we don’t fit either model, and we’re rapidly approaching the third, populist democracy; this is not really a parliamentary democracy, but a representative system where the important thing is to vote every four years without the need for an election. In this period, the elected government will not be controlled in terms of judicial, technical, parliamentary or public opinion.

“It has been forgotten that democracy is dialogue, discussion, compromise and compromise”

From this perspective, Democracy is just voting, as Catalan separatists have argued in recent years. It is forgotten that democracy is dialogue, discussion, agreement and agreement. Kelsen is forgotten, only Schmitt is used, decision making and not thinking, the great polemic between a social democrat and a Nazi before the Second World War. It seems that we are going back to the old authoritarian days, abandoned by the great German constitutionalists who emphasized the opposite of the second half of the last century, namely the importance of the method of making laws in parliament.

One of these greats, Professor Böckenförde, argued that a fundamental element of democratic laws is that they are made in the constant presence of the public through discussion, negotiation and compromise between different political forces. As a result, The democratic legitimacy of law comes not only from the body that ratifies it – namely the Parliament – but also from the participatory process. In this way, the law has been detailed by taking into account the voices and votes of different parliamentary groups and the debates that have arisen in the public.

For this reason, our Constitution prescribes different procedures in the formation of the law, even before some of them enter the Parliament as projects or proposals. They are the opinions of the Council of State, the General Council of the Judiciary or other independent institutions.I even know the reports of Cortes’ lawyers.

What happens if some of these obligatory transactions are ignored—or circumvented by trickery, something that happens most of the time, such as presenting government bills as bills from the parties that created it: technical errors, insufficient consideration of new laws, damage to Parliament’s reputation. All because you didn’t follow the procedure. And to respect procedure is to respect democracy.