Garzón

Two investigating magistrates (Varela and Marchena), prosecuting another investigating magistrate (Garzón) for misconduct, are being accused of misconduct. That accusation has been levelled in the court of public opinion; formal complaints will follow if Garzón is found innocent.

There are four issues in the Garzón case, and a problem arising from all four. First, the issues:

1) Did Garzón accept payment from a major Spanish bank in return for favours? The bank financed a lecture series at an NYU research centre subsidised by two other bank and Coca-Cola, among others. NYU has issued a statement exonerating Garzón, who had seen identical charges against him dropped twice since 2008. For an account of the charges, see the following piece from last Sunday's Vanguardia:

If after a leave of absence Garzón did not declare a conflict of interest in cases to which the bank was party, the problem may be with conflict of interest guidelines rather than the judge. The investigating magistrate handling the case, Manuel Marchena, has also been busy on the lecture circuit, giving talks at events that have sponsors.

2) Did Garzón knowingly exceed his powers in ordering that conversations between suspects in a political corruption case and their lawyers be taped?

3) Did Garzón knowingly exceed his powers in undertaking his investigation of Civil War-era mass murders? Human Rights Watch and Amnesty International have criticised Spain for keeping a 1977 political amnesty law on the books, arguing that it comes into conflict with points of international law from which Spain is not exempt, under its treaty obligations. The UN Human Rights Committee has likewise asked that the 1977 law be repealed.

4) How can it be proven that a public official has knowingly exceeded his or her powers? Garzón is a magistrate working within a complex judicial framework. His actions have not been arbitrary; he believes them to be grounded in points of law. In the ordinary course of court business, disputes over Garzón's actions would be approached as questions of jurisprudence, argued before the judges before whom his cases--those he has investigated--are brought to trial. If the judges do not accept Garzón arguments, out they go, along with the case. Prevarication doesn't mean falling into error: it means knowing that something is wrong and lying about what one knows.

Now, the problem. No-one is debating the fine legal points of the second and third charges against Garzón. No-one understands them. They have been taken for what they do, politically, not for what they say, legally. Lawyer-client privilege is a serious matter; perhaps the law on that point, and so on the wiretaps, is clear, and Garzón did overstep his remit.

The New York Times, The Financial Times and The Economist all smell a fish. The fish is systemic, the unravelling of Spain's post-Franco political settlement. Garzón is regularly referred to by his defenders as a "progressive judge"; in the foreign press he's a "leftist judge". If you let such qualifiers attach to the judiciary with no qualms, justice is partial, and there is no justice. I am reminded, tangentially, of another prosecutor, Archibald Cox. Fired by Nixon over a disputed point of law, Cox did not go down in history not as Nixon's political enemy. "Whether ours shall be a government of laws and not of men," Cox said after his dismissal, "is now for Congress and ultimately the American people to decide." That's the point: the rule or law can exist above politics. Whether or not this is true not matter so much as the belief that it might be true. If you lose that belief, you cease to believe that the game of politics can be played cleanly. Politics has bled into everything in Spain, nothing is clean, and Garzón is no Cox.

A Programme for Political Reform in Spain

In a democracy, the very existence of a political class is repugnant. The more mature a democracy, the better it will weather a political class's pursuit of its class interests. As Spanish democracy is not mature, it would benefit from formal changes designed to weaken the political class and its structures (e.g. patronage) in favour of more effective scrutiny of public life. Here are my suggestions:

1. Abolish the closed-list electoral system.
2. Reserve 75% of parliamentary seats for small electoral districts, each sending a single representative to parliament. Use an alternative vote or instant run-off system for voting in these constituencies.
3. Reserve 25% of parliamentary seats for open party lists to allow for ideological as well as territorial representation. Restrict anyone winning such a seat from serving more than two terms, unless he or she should run for and win an election in one of the small constituencies.
4. Require parties to choose local candidates democratically and locally, i.e. by open election in each electoral district. Restrict voting in such elections to local party members of at least one year's standing.
5. Require parties to choose open-list candidates openly and democratically, i.e. by open election among all party members of at least one year's standing.
6. Require parties to choose parliamentary leaders and members of the party executive openly and democratically, i.e. by open election among all party members of at least one year's standing. Set fixed terms for such offices.
7. Restrict all holders of elected offices from holding any discretionary appointments in the public sector for five years after they leave office. Remove all parliamentary privilege save that protecting holders of elected offices from prosecution for slander or libel for remarks made in an elected assembly. All other protection is either an admission that that the justice system is open to political manipulation or an invitation to break the law.
8. In municipalities, institute direct elections for mayor.
9. In municipalities where members of the municipal council are paid a full-time salary, restrict the number of council members in accordance with a sliding scale. (Some Catalan municipalities have one full-time councillor per 4500 inhabitants, under a city-wide closed-list electoral system. Over-representation is wasteful, an indirect subsidy for political parties.)
10. In municipalities whose population surpasses a set threshold (i.e. 20,000), institute an electoral system of districts or wards for council elections. Under the current system, neighbourhoods have no political voice.
11. Determine a fixed and very low percentage limit for the salaries of holders of discretionary posts, in relation to the overall budget for the municipality, autonomous community, or the state itself.
12. Remove the principle of parliamentary representation from the governance of public bodies such as public broadcasters and the choice of justices for the Constitutional and other Courts. Party interests are not the public interest. Public appointments commissions, reporting to the ombudsmen (e.g. the defensor/a del pueblo, the sindicatura de greuges), should recommend appointments on the basis of merit after open public competitions.
13. Ombudsmen themselves should be chosen by a 75%+1 parliamentary majority vote. If no parliamentary consensus is forthcoming, ombudsmen should be elected directly by popular vote in a special election free from party affiliation.
14. Charge the ombudsmen with assessing all public sector advertising and communication. Make it a duty of media outlets to refuse public sector advertising that is not primarily informative and in the public interest. Give the ombudsmen power to fine both advertiser and media outlet if any public-sector advertisement, paid communication or campaign is demonstrably propagandistic.
15. Finally, and perhaps most radically: adopt a federal structure. The distribution of powers is currently determined by legislation subject to the constitution and thus to greater judicial interpretation. Write the distribution of powers into the constitution and the room for dispute between levels of government would be minimal.

Judicial Independence

When is arbitrary power superior to formally democratic mechanisms? When naming judges, perhaps. The judges of Spain's highest court serve limited terms. They are chosen by the lower and upper houses of parliament, the executive, and the judiciary's own administrative body. In the press, judges' names are often mentioned together with the party that put his or her name forward. They are known to belong to competing judges' associations, the largest of which are routinely referred to as conservative and progressive. Couple this court challenges to legislation launched by political parties themselves, and the judiciary soon resembles a chess game. Thus, the more prominent judicial decisions become, the greater the public's perception that the judiciary is shot through with party-political loyalties, for a prominent judge is (thanks to the press) a judge whose political affinities are known. A democratic mechanism--parliamentary election of judges--ultimately undercuts the very legitimacy which it was designed, in the 1970s, to restore.

What happens when judges are named by the executive, as in some Westminster democracies? In a word: scrutiny. Where power is openly concentrated in one individual's hands, and that individual happens to be the head of government, the likelihood that an abuse of power will reflect on public perception of his or her character is very high. The trade-off in such a system is the prevalence of patronage appointments to lower benches; but appointments to the court of last resort need to stainless for the sake of those appointing as much as those appointed.

Independents

Few Spaniards realise that a socialist sits in the U.S. senate. Senator Sanders of Vermont describes himself as such, but was not a Socialist candidate. He has won elections as an independent since his first run for the mayoralty of Burlington, Vermont, in 1981. He's also served in the U.S. House of Representatives. He is a party-less animal, an anomaly, the exception that proves the rule.

There is another independent in the U.S. senate; there are independents in the U.K., Canadian and Australian parliaments. Some have left or been expelled from parties, others have eschewed party affiliation and nonetheless succeeded. Election-winning independents demonstrate that direct links with an electorate can be forged, and representative democracy served by representatives and the demos, without mediation.

In Spain, the only electoral mechanisms allowing for independents are the Senate and, in theory, municipalities where a single person serves as the council. Otherwise, the electoral system excludes human beings as biologically constituted--as individuals. Why?

Recruiting

It seems common-sensical that knowledge industries of any kind shouldn't limit their hiring to local candidates. Those raised and trained elsewhere bring the benefits of training which may be different and better; they may also bring knowledge of languages and so of the bodies of knowledge available in those languages. I recently spent time at a well-endowed US university year, working under an Australian, sub-letting from an Irishman and then from a Canadian who both worked for the same institution. The more cosmopolitan the field of study, the more international the workforce: thus, among the fifty or so tenured or tenure-track staff in Economics at the same university, there's a Greek, a Canadian, an Icelander, three Germans, a Chinese woman, a Chilean, a Brazilian, four Italians, two Belarussians, three Japanese, a Frenchman, a Turk, an Argentine, a New Zealander, an Englishman, and an Indian. That university is private and blessed with hotlines to US visa offices, as I know from personal experience. As an comparative exercise, it might make more sense to look at large, publicly funded universities in second cities, like Birmingham in the UK and Montreal in Canada. Here's a link to a list of U of Birmingham Economics faculty, where you'll find a Dane, an Italian, and at least two Indians; and to a similar list for the Department of Economics at McGill University in Montreal, home to a Spaniard, a Moroccan, a Scot, an Englishman, a Japanese, five Americans, an Australian, a Dutchman, a Thai, and a Chinese man. How does this compare with the largest institution in the Catalan university system, the huge Universitat de Barcelona? To be fair, the UB has more faculty in Economics that any of the three examples in the US, the UK and Canada. For the sake of comparison, then, I've chosen the most international (in subject matter, at least) of their Economics departments, which teaches economic policy and the structure of the world economy. The staff list is here.

Notice anything? CVs are not listed (they're likewise absent from the Department's home page), so we have to go on names and surnames. That said, the list looks very local. One staff member out of forty-eight does not have two surnames. She is a visiting professor. Otherwise, it looks a lot like a closed shop.

(Not all Barcelona universities recruit quite as locally as the UB: the UPF's Economics department is fairly international in provenance and training. )

Universities are not free to hire anyone with a PhD: candidates for full, permanent posts must have been vetted by a public agency in charge of assessing academic output. The process takes six months. More about that tomorrow.

Heritage Language Classes

This post is unfair.

When I came to Spain, talk of immigration actually meant talk of emigration: of internal migration, especially in the 1960s, of Spanish guest workers in Germany, Republican exiles in France or Mexico, and economic migrants to Argentina or Chile. Now immigration means newcomers to Spain, who make up about 12% of the population. Immigrants brings skills that exporters need. By speaking Russian, Chinese, Polish, or Urdu to their children, they are passing on language skills and cosmopolitanism. Those skills are desperately needed. Language teaching is poor in Spain, and attitudes towards language learning contradictory (as reported in the following story from last Friday's La Vanguardia):

About six years ago I met a highly educated Russian woman at a central Barcelona playground. She was speaking to her daughter, who might have been four, in lightly accented but fluent Catalan. (Her Catalan was better than the Catalan premier's, but that's another post.) She told me that she'd been told, by a teacher at a public school, to give up speaking to her daughter in Russian. Her daughter will have no access to the Russian language in the public educational system until she enters university.

Here comes the unfair part. In polities whose experience of immigration is long and intense, policy makers know enough to use public schools to preserve immigrant languages. Heritage language teaching, as its known, can mean a dual-language school-day in New York, in Spanish, Chinese, Russian, Korean and French. In Toronto, free after-school classes are on offer in fifty languages, from Danish and Armenian to Marathi and Yiddish. Is it fair to ask Barcelona to mimic New York and Toronto? I suppose not, but it is necessary. If Catalan policy makers wake up to the potential of their young charges in time, the Catalan economy will stand a better chance of finding its niches and prospering. If they allow their teachers to discourage trilingualism and do nothing to raise awareness of the importance of heritage languages, a vital opportunity will have been lost.

Recommended

Three related pieces: in the Economist, "Why is Spain so Corrupt?"; in El País, "Por qué hay tanta corrupción en España," of which the former is a gloss, by the political scientist Victor Lapuente Giné; and a short opinion piece in today's Vanguardia by Jordia Barbeta on the parliamentary representation of those Catalans who have been without electricity since last Monday's snowfall. Barbeta points out that the snowed-in towns have no effective voice in Barcelona or Madrid because they are without local representation. Barbeta doesn't suggest scrapping proportional representation as practised in Spain; I do.