The provisional deprivation of the fundamental right to freedom of "going, staying or leaving", as proclaimed by the French Constitution of 1791, is a very delicate decision: it has to resolve the conflict between a fundamental right and other rights or legal assets protected by the Constitution.
The fundamental rights to life and liberty are the premise of the other fundamental rights. Without those, these lose their reason for being. It is something similar to what happens with the existence and unity of Spain: which is the foundation of all constitutional order.
And hence the seriousness of the conflict we are experiencing; because when there is disagreement on the fundamental, the Law and the Right cannot be required to perform miracles. Nor is a political dialogue viable whose agreements will be taken, once again, as a "starting point" by one of the parties. As was, according to Puigdemont, the constitutional pact of '78 and the recognition of the autonomy of Catalonia.
The decision to provisionally imprison several people must be legally well-founded "in accordance with constitutional principles and precepts, according to the interpretation of the same made by the Constitutional Court" (art. 5.1 of the Organic Law of the Constitutional Court). And the provisional deprivation of liberty must be a reasonable measure, that is, not absurd, adequate to the purpose it seeks and proportionate.
But it is always a debatable decision, like everything in the world of Law. And the reasonableness, adequacy and proportionality reviewed by means of an appeal. This is the constitutional State.
And the lack of proportionality can be objected to it, since there are other measures to prevent the escape, that the voluntary appearance of the investigated dilutes the risk of evasion or that, having been dismissed as consellers and conselleras, it is impossible for them to commit the crimes described in the complaint again.
It is evident that the imprisonment has facilitated that the independentist bloc, disconcerted by the immediate call for elections and by the toccata and fugue of Puigdemont, regroup ranks. It is about applying the instruction manual of the EnfoCATs Proposal, which adapts the classic insurrectional strategy to today's Spain.
But the reactions in chorus of the independentists, of Colau (justice is not a tool for political revenge) and of many well-meaning "unionists" demonstrate, in my opinion, that the culture of the Rule of Law still lacks a long way to settle in Hispanic lands.
Let's see: the judicial power, that is, EACH judge or court in the exercise of the jurisdictional function, is legally independent and must submit fully and exclusively to the Law.
The genetic tendency of power is evident, not only of state power but of any power that exists in society, to overreach, influence judges and try to bend their independence. As is also that many judges are immunized against that virus.
But those who take for granted that Magistrate Lamela (who, according to all information, has been especially impermeable to pressures throughout her professional career) acts under the orders of Rajoy, end up asking the Government to take action to release the dismissed or the judge to correct a (political) error that will have serious political consequences.
The judicial independence enshrined by the Constitution will be, in real life, more or less effective. There are judicial cases whose outcomes point directly to judicial submission to pressures or influential interests. Some dismissals are on everyone's mind...
But both those who indiscriminately accuse the judicial power of being subjected to the executive and, therefore, the magistrate of obeying Rajoy; as those who criticize the order of imprisonment for its political consequences, share the disbelief in the Rule of Law.
They globally question that judicial independence exists in reality and, specifically, in Lamela's decision; and, consequently, they react demanding rectification for reasons of political opportunity: a demand directly against the separation of powers and the Rule of Law. In short: they act exactly the same as what they criticize.
Let's see, talking about everything a little: if Rajoy, who has politically benefited from the conflict with the independentists as long as it remained with low intensity, could give instructions to the magistrate: either he is stupid, or he has suddenly gone crazy, or he would have given the order not to imprison the exconsellers, because it can have intensely contradictory effects before the electoral call, increasing the risks that it entails that are not few.
Then the best denial to the political instrumentalization of justice in this case is, paradoxically, the content of the Order itself.
Unless we all accept, as a starting point for the analysis of all this, that Rajoy is stupid or that he has gone crazy. Which, I fear, no one believes.
By Santiago Pérez, Dept. of Constitutional Law (ULL)
