The first dissenting and courageous voices from the Spanish judiciary. The judge of the Barcelona Audience, also a member-elect of the governance chamber of the Catalan High Court (TSJC), Montserrat Comas, has expressed her dissent against the agreement adopted by this chamber, this Friday, in which it adheres to the view of the Spanish Supreme Court's governing chamber, made in the context of the current Spanish political situation. This view upholds that "jurisdictional practice always conforms with legality" in reponse to the joint statement by the Spanish Socialist party (PSOE) and Together for Catalonia (Junts) which agreed to carry out reviews for cases of lawfare, or the judicialization of politics. In five points, judge Comas - known in Catalonia for handing down the Palau de la Música corruption sentence, her criticism of the rebellion accusations against the pro-independence leaders and as a spokesperson for Judges for Democracy (JJxD) - maintains that judges should not evaluate political agreements, according to the document to which ElNacional.cat has had access.
The president of the social law chamber of the TSJC, Andreu Enfedaque, also adhered to the dissenting vote lodged by Comas. These two judges are among the first to speak out openly against the demonstrations being conducted across Spain by the judiciary, in an open war against political statements on the existence of alleged judicial irregularities through which dissidence has been legally pursued - in this case, the dissidence being the Catalan independence movement.
No reference to 'lawfare'
The first point made by judge Comas affirms that the proposed text for the amnesty law presented by the Socialist group, registered in the Congress of Deputies on November 13th, "does not contain any reference either in its explanatory statements or in its substantive text to what is known as lawfare".
The initial agreement between the PSOE and Junts for the investiture of Pedro Sánchez, when finally reached on November 9th, did speak of lawfare, but in the face of the confusing wording, on the same day the PSOE clarified that no congressional committee would review any judicial resolution. This clarification, however, did not help because Spain's governing judicial organ, the General Council of the Judiciary (CGPJ), followed by the majority of judicial associations, and now, in Barcelona, the body of investigating judges, agreed, by majority votes, their rejection of the law of amnesty, without having seen the document. Some dean judges have even called demonstrations against the amnesty law, from which JJxD has distanced itself.
Application of the amnesty in Catalonia
In a second point, Comas states that "the governing chambers of the regional High Courts are not competent to issue accords in response to pacts between political parties", since this is not included in Spain's law of judicial power (LOPJ). And she adds: "As a legal governance organ of the judiciary, the governance chamber of the TSJC is bound to maintain neutrality in partisan debate, even more so in the autonomous community of Catalonia, the location of the majority of judicial organs that will have to "interpret and apply the amnesty law if it is approved" by the Spanish parliament.
Judge Comas' third point made it clear that "parliament is the body that represents popular sovereignty and exercises the legislative power of the state". And she also notes that "the legitimacy of the judicial function derives from the connection of judges and magistrates to the Constitution and the law", and that control of the legislator is "exclusive competence of the Constitutional Court".
Finally, magistrates Comas and Enfedaque declared that "the legal and constitutional system guarantees judicial independence and it is up to the General Council of the Judiciary to protect judges who could find their independence under attack". And because of all this, they conclude that "the pronouncement made by the governing chamber of the TSJC is not correct".
The press release on the accord reached by the TSJC governing chamber, chaired by Jesús Maria Barrientos, specifies that "the plenary session has not made any pronouncement on the proposed amnesty law". However, the three points of the accord are a direct criticism of the text of the PSOE-Junts pact for having referred to the existence of lawfare, that is to say, of judicial resolutions that have been "forced" in order to pursue, in this case, the Catalan independence movement.
— TSJCat (@tsj_cat) November 17, 2023
In its press statement, the TSJC states that by a majority decision, it adhered to the original accord by the Supreme Court's governing chamber, whose three points state that it "(1) recalls that the rule of law, on which the European Union and our constitutional order are founded, demands absolute respect for the division of powers; (2) it affirms that the exercise of jurisdictional practice always conforms with legality, with the defence of the Constitution and the safeguarding of the rights and liberties of all citizens, in particular, of equality in the application of the law; (3) it stresses the need to preserve and guarantee judicial independence with respect to all the Institutions. It sees as incompatible with this the auditing or supervision of jurisdiction tasks by the other powers of the state."
The TSJC's press statement ends by noting that judges Enfedaque and Comas voted against the accord and have announced a dissenting opinion.