The ingenious discussion imagined by lewis carroll between Alice and Humpty-Dumpty on the meaning of the word “glory” reveals the deep connection between language and power.
‘When I use a word,’ Humpty-Dumpty insisted, rather scornfully, ‘it means what I want it to say. No more no less.
“The question,” Alice insisted, “is whether words can be made to mean so many different things.
‘The question,’ Humpty-Dumpty settled, ‘is who’s in charge. That is all.
I believe that this dialogue reveals what is intended with the reform of the Penal Code: that what seemed to many of us an attempt to break the constitutional order (call it rebellion, treason or sedition as the Supreme Court said) from now on we call it piously aggravated public disorder.
And in just over a month, which is how long the legislative procedures will foreseeably last, we will see what can be done with words.
The bill that the parliamentary groups of the majority have presented in Congress on November 11 deserves some comment regarding the forms and procedure as well as the substance.
The aforementioned initiative that, given its technicality, it is presumable to think that it has been drafted in government headquarters, submerges its main object in the depths of a text that adapts the Penal Code to different EU Directives referring to heterogeneous matters. It is what is called an omnibus law that, despite the camouflage attempt, cannot prevent its main objective from flashing with an intense red light: the elimination of the crime of sedition.
[Robles defiende la reforma de la sedición: “La Constitución está protegida y blindada”]
Delegating the legislative initiative in matters as delicate as criminal matters to parliamentary groups is a legitimate procedure. But it has its risks. Given the assets in question, historically, the reforms of the Criminal Codes were preceded by documented studies in which, with the participation of great specialists (Codification Commissions) and with the advice of specific bodies (State Council and, in this case, , the General Council of the Judiciary) the types were appraised, the penalties were harmonized and possible inconsistencies and difficulties in the application of any partial reform were studied.
In short, giving participation to the experts and professionals who would have to apply the norm, it was intended that the criminal legislative decision would be, as the Enlightened wanted, wills ratione animata. That is, a decision of Parliament enlightened by reason.
But, lately, the principle of deference is plummeting into decline in our societies, driving penal populism. Widening layers of citizens reject the authority, until recently unquestioned, of the experts.
It is alleged that they live in their ivory tower, totally disconnected from the spirit of the people and prisoners of their own corporate interests. There is no longer trust in the professionals who are now considered part of the caste (John Pratt, Criminal Populism).
“A negotiation without publicity between three or four lay people around a stretcher table is enough to decide which legal rights must be criminally protected and with what intensity”
And since, with the comeback of populism, confidence in the experts and technicians of the public Administration itself has declined, we see how frivolously, responding to group pressures or the emotionality of the times, it changes in a matter of days the Penal Code and gambles with that terrible power, according to montesquieuwhich is everything related to penalties.
Legal reforms that once required lengthy debates among those conversant in criminal policy are now passed expeditiously. A negotiation without publicity between three or four lay people around a stretcher table is enough to decide which legal rights must be criminally protected and with what intensity.
The Parliament, divided into blocks of berroqueña stone, it will limit itself to certifying the results of the negotiation carried out behind the curtains and there will be no lack of a chamber jurist to endorse a posteriori the decision.
This is how it is being legislated in times of declining deference. Afterwards, we should not be surprised by what is happening, for example, in the application of the famous ‘yes is yes’ law, or what may happen later with the projected annulment of the crime of sedition.
If it had been the Government that had presented this project, the mandatory reports would have predictably questioned the reasons given to justify the suppression of the crime of sedition. According to the explanatory statement, it is comparative law that forces us to review obsolete criminal offenses such as sedition to standardize our Penal Code to the countries around us. The majority of the Government maintains that the crime of sedition does not exist outside of Spain.
But the question is not in the name of the crime, but in knowing if the acts that the current type of sedition punishes in Spain are regulated with lesser penalties outside our borders. What we call table, beyond the Pyrenees they call it table, Tisch, table, table… but they refer to the same thing.
And as the Supreme Court has already made clear (Report on the pardon of the Criminal Chamber of the Supreme Court issued in the file processed on the occasion of the execution corresponding to the case 3/209907/2017, May 29, 2021, pp. 15 -17) the acts typified in our crime of sedition are punished much harsher, although with another name, in the US, Germany, France, Italy, Belgium or Portugal.
[El TS cree que el texto de la sedición da motivos al TEDH para tumbar la sentencia del ‘procés’]
If we stick to the previous statements of the parties that promote the initiative, it is not unreasonable to conclude that the bill is nothing more than the result of an agreement between ERC, Bildu, UP, PNV and the PSOE by which, in exchange to reduce the penalties for the events that occurred in Catalonia in 2017 (a copyright criminal law), the Budgets for 2023 are approved and the current legislature is shielded.
If so, we should remember that using criminal policy for such purposes is a perversion of the function of criminal law. It is using the Penal Code for a purpose that is not its own by turning it into a simple resource of the country’s government, such as fiscal, budgetary or educational policy. It is not the same to approve the highway law, for example, as to reform the Penal Code.
It is an excess to expect us to call and treat as a public disorder the most extreme attack (after Colonel weaver) to our constitutional order, and believe that a majority can do in criminal policy what suits them regardless of the great principles of criminal law such as taxation, harmfulness and proportionality.
They are principles that bind not only judges and magistrates, but also legislators, who are obliged to produce closed criminal offenses, to punish those behaviors that are harmful to certain public goods and that their punishment is proportional to the seriousness of the facts.
“Some highly authoritative criminal lawyer has argued about the technical deficiencies of the current crime of sedition and has suggested that what should be done is also penalize constitutional disloyalty”
As the mandatory reports of all bills have been evaded, it has not been possible to clarify the different legal rights in question. The basic legal good that the majority’s proposal intends to protect is, as it says in its first article, public peace. Public peace occasionally disturbed by demonstrations, strikes or uncontrolled evictions is a good worth protecting. I don’t know if there is a general problem of public disorder that needs to be classified now. If there is, do it.
But there are other different legal rights, which are not subsumed in the previous one, such as the integrity of the constitutional order, hit by illegal referendums or declarations of independence. Only a Humpty-Dumpty legislator can claim to protect this other legal right through the same type of aggravated public disorder. Serious public disorder is one thing and a frustrated attempt to disorder the State is quite another. It is not the same.
Some highly authoritative criminal lawyer has argued about the technical deficiencies of the current crime of sedition and has suggested that what should be done is also penalize constitutional disloyalty. Perhaps specialists can build a penal type about it.
It does not seem easy, because our generous democracy, unlike Germany or Italy, is not militant and protects the right of any citizen to defend and promote the independence of any part of the national territoryas long as they respect the exchange rules that are those established in the Constitution for its reform.
For this reason, if the crime of sedition is finally eliminated (something that could have serious repercussions in the process pending in supranational instances), it must in any case be criminalized as a conspiracy and attempt to modify the structure of the State by means that are not provided for in Title X the Constitution.
[El PSOE acelera para que la rebaja de la sedición entre en vigor ya en diciembre]
If this is not done, the stability of our constitutional order will be weakened and it will be clear that, as Humpty-Dumpty said to Alicia, what this proposition wants to do is that the words of the criminal law mean what they want as appropriate. to maintain power.
A few days after celebrating the 44th anniversary of the Constitution and given the possibility that our Rule of Law will be further disarmed with this bill, perhaps it is not idle to remind legislators of these wise words from a great constitutionalist on the will of power and the will of the Constitution.
“The Constitution,” it said Konrad Hesse“becomes an acting force when said task is assumed, when one is willing to have one’s conduct determined by the order regulated by the Constitution. When one is determined to impose that order in the face of any questioning or attack based on circumstantial considerations of When, therefore, in the general conscience and specifically in the conscience of those responsible for constitutional life, not only the will to power but, above all, the will to Constitution is found alive.”
*** Virgilio Zapatero is a professor emeritus, former rector of the University of Alcalá and former Minister of Relations with the Courts.
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