The Ancien Regime 5

All the King’s Bastards

Big daddy in his younger days, handsome but vile

In La Vanguardia (27 Oct 2012) Juan José López Burniol makes an impassioned case against the intention of Artur Mas and his colleagues in the CiU, ERC and ICV parties who have pledged to carry out a referendum on Catalan independence whether or not it is legal under Spanish law.

His article, entitled “The law is like the air” (in the sense that you don’t notice it until you don’t have it), makes a solid, coherent and impressive case for respecting the laws of the land above all other considerations:

The state is not, despite all appearances, a hierarchically-organised structure that goes from the King at the top down to the lowest functionary. All of these are instruments of the state. The state is, in essence, a juridical system made up of laws, all of them related to each other, such that the violation of any of them has repurcussions on all the others.

His argument, developed further in the piece, is that since the rule of law is indivisible and sovereign, to break that law in any way is to threaten the peace and security of all:

It is a very grave decision to do without the law. Above all, if we bear in mind that the law – the democratic law – is a binding plan for living together in justice, which makes us all free and equal. From this it follows that the law is the best defence of the weak against the strong.

A coherent point of view with fine historical precedents, from Socrates, through Hobbes, to Kant. It ought to give pause to those would-be rebels who think to challenge the Spanish constitution and the system of justice it embodies.

The only problem with this argument, with regard to Spain, is that it is utterly untrue. The King is not an instrument of the state, he is the state, and is completely above its laws. The Spanish law does not make us equal, for in fact there are whole categories of persons with special legal privileges. And it most assuredly does not protect the weak, but rather it is their scourge.

The law is in reality the refuge of those with power, influence and money when the weak seek to challenge them. The greatest injustices are perpetrated daily and completely legally. And despite many years of popular clamour for some justice to be introduced into the legal system, nothing has been done by their legislators to satisfy that popular desire.

In fact Spain is only barely a democracy, its democratic credentials based on the fact that the citizens can vote once every four years for a party with closed lists of candidates. The successful candidates take their seats without even once having campaigned in public, and instead of representing their electorate, or even appearing before them occasionally, they settle in to represent their party machine. There is zero accountability and zero transparency. The self-maintaining machine, not the law, rules here.

Let’s take these contentions individually:

1) The King is not an instrument of the state, he is the state and is above its laws. There is no dispute possible here. Section 56 of the Constitution of 1978 makes it explicit that “He arbitrates and moderates the regular functioning of the institutions”. Moreover it guarantees that “The person of the King is inviolable and shall not be held accountable”.

What that means in practice can be seen in the case of Albert Solá (56) and Ingrid Artiau (45), who claim to be illegitimate children of the King. By obtaining without consent some genetic material belonging to him or someone from his close family, they have established a 99% probability that they are his children, but this test is not admissible in law.

When they brought their case to the Spanish family law courts, demanding a DNA test, the case was thrown out, not because it was disproved, but because the “person of the King is inviolable” according to the Constitution.

Constitutional expert Antonio Torres del Moral, professor of Constitutional law at the UNED university, supports this decision. “The inviolability [of the King] is absolute… The King may not be brought before the courts.”

However, he recognises that this is grossly unjust to the pair, who are claiming their rights under the law to be recognised by their putative father. “It’s an injustice in consonance with the law”, he states, apparently unaware that justice is what law is all about.

So much for the monarch being an instrument of the state to guarantee justice for all. So much for equality under the law. Incidentally, this case was not reported in any major newspapers of Spain except El Mundo, the right-wing anti-monarchist daily, whose report was then picked up by the BBC and others. The mainstream Spanish press have suppressed it totally and it has not been reported on TV or radio.

2) The law in Spain does not make all equal, there are categories of privileged persons. Apart from the King’s “absolute” immunity from criminal and civil law, the King and all the royal house are protected from criticism by a law of lese-majeste, making any comment on this issue a potential jail sentence for those rash enough to enter into this debate.

At present the King’s son-in-law Iñaki Urdangarin (Duke of Palma) is accused of embezzlement, the charges stating that his Noós Foundation fraudulently invoiced regional governments in the Balears and Valencia to the tune of €20 million. Charged along with him is his partner Diego Torres and his partner’s wife. But Iñaki’s wife, Princess Cristina de Borbón, is not charged, nor even cited as a witness, despite leaked documents showing that she received payments from the allegedly fraudulent network.

Princess Cristina is very simply not to face justice. Her status as a member of the royal family makes her immune from being even named in such a criminal case, never mind charged.

3) The law is not the defender of the weak, it is their scourge. It’s very hard to find consensus on any issue in Spain, but there’s one thing that almost everybody agrees on: the law on mortgages and repossessions is cruel and unjust.

Unlike in other countries, where the repossession of the property liquidates the mortgage debt, in Spain the unfortunate mortgage defaulter loses his home AND is thereafter fully liable for the full amount of the loan plus accumulated interest. With no law on personal insolvency, this debt can never be cancelled, though of course companies in Spain can become insolvent and thereby liquidate their liabilities. Nearly all homeless people are also massive debtors, liable to, but unable to pay, the mortgage on the house they no longer live in.

The injustice of this situation is evident. On Sunday the Bishop of San Sebastián José Ignacio Murilla described it as “immoral” and “absurd”: “The banks go on evicting people from their homes, at the same time as these financial institutions are piling up tens of thousands of empty apartments which they cannot sell or rent.”

Fernando Ónega in the same edition of La Vanguardia as the article cited at the beginning makes the same point: “A country which allows 400,000 families to be thrown out of their homes for a mortgage is an unjust country. But a country which does not rebel against the legality which allows the same homes to be passed on for half the price to the bad bank, is a country of cowards”. Neither the bishop nor the journalist are left-wing radicals, yet they feel deeply that the country, and its legal system, is corrupt and absolutely unjust.

The “democratic law” vaunted by López Burniol has no response to this injustice. No reform of the existing law on personal debt or mortgage liability has ever been proposed, and the existing PP government has no plans to introduce one. Meanwhile 400,000 families – perhaps a million people – are rendered homeless and saddled with a lifetime’s worth of undischargeable debt. Some prefer to throw themselves off the balcony when the bailiffs come to evict them.

4) The law is the protector of the strong, the moneyed and the connected. Félix Millet, who was arrested for fraud amounting to more than €30 million in 2009 and has yet to come to trial, could probably tell you how much it costs to buy a judge. His strategy, approved by the Barcelona judge Juli Solaz, is to stall the case indefinitely and ensure that he does not face jail in the meantime. Apart from the services of the judge, his connections within the CiU party ensure that his trial date will never come up.

This case could be repeated by many hundreds of similar ones, where rich, powerful and connected defendants delay trial indefinitely, with the active connivance of judges who have either been bought or influenced.

Felipe González, Prime Minister of Spain for 14 years (1982-96), agrees. He believes the transition brought democracy in most cases, but not in the justice system, which has "never breathed the oxygen of democracy.. the greatest deficiency in the Spanish democracy is justice".

So returning to the article cited at the beginning, I’d like to “correct” it and close with a version that more closely approaches the truth of Spain. What López Burniol should have said, referring to the reality as experienced rather than the noble tradition of liberal democracy in the abstract, is something like this:

The state is not, despite all appearances, a juridical system made up of laws. The state is, in essence, a hierarchically-organised structure that goes from the King at the top down to the lowest functionary. All of these, except those who are immune from prosecution, are instruments of the law. The law – the not-very-democratic law – is a binding plan for living together in injustice, which makes us all abject and unequal. From this it follows that the law is the best defence of the strong against the weak.

Maybe not such a robust defence of the Constitutional order when viewed in the cold light of day, after all.

Sources

López Burniol article
http://www.lavanguardia.com/opinion/articulos/20121027/54353532012/juan-jose-lopez-burniol-el-derecho-es-como-el-aire.html
King's Bastards case
http://www.bbc.co.uk/mundo/noticias/2012/10/121026_rey_juan_carlos_paternidad_espana_jmp.shtml
Urdangarin/Noós case and payments to Cristina
http://politica.elpais.com/politica/2012/09/09/actualidad/1347225924_908406.html
Bishop of San Sebastián on "immoral" laws
http://politica.elpais.com/politica/2012/09/09/actualidad/1347225924_908406.html
Fernando Ónega on same
http://www.lavanguardia.com/politica/20121027/54353530678/fernando-onega-malas-perspectivas-madrid.html
Felipè González on undemocratic justice
http://www.publico.es/espana/444579/gonzalez-carga-contra-el-pp-por-no-aceptar-que-franco-fue-un-golpista
Félix Millet case
http://ccaa.elpais.com/ccaa/2012/07/23/catalunya/1342995256_986831.html