When freedom of expression meets constitutional loyalty

The ongoing clash between Catalonian nationalism that demands the right to secession and the Spanish state that has so far prevented independentists from substantially advancing such goal has newly produced an interesting episode. Judge Vidal was suspended for writing a draft constitution for a would-be Catalonia in a decision that has raised controversy as well as a number of constitutional questions. Focusing on the relationship between freedom of expression and constitutional loyalty, the decision takes a firm stance on restricting the former when judges become politically involved.

Judge Vidal’s three-year suspension was imposed by Spain's Judicial Power Council (CGPJ) and constitutes the second most severe sanction a judge can endure after expulsion. The judiciary's top authority sanctioned him after he had written a draft constitution for a hypothetically independent Catalonia. He had also taken part in a number of roundtable discussions and press conferences related to his draft, organized by civic associations promoting independence. The case raises questions that ultimately show how difficult it is to disentangle constitutional issues from political ones. To begin with, the legal ground for the CGPJ's decision concerns the violation of political neutrality required from judges and Vidal's failure to demonstrate due loyalty to the Spanish constitution itself. On its face, the very act of drafting a constitution for a Catalonian independent state is seen as a threat to the integrity of the Spanish state and thus to its current constitutional order.

According to the Spanish constitution, judges can neither belong to any political party nor can become involved in activities that compromise their "complete independence" (article 127). On its part, the Judicial Power Law states that working as a judge is incompatible with "any kind of legal counseling, be it paid or not" (389.7). Additionally, as stated in the articles invoked by the CGPJ against Vidal, among the "very severe offences" that a judge can commit are "carrying out any of the activities incompatible with his position" (417.6), as well as "unjustifiably ignoring judicial duties" (417.14). Essentially, the "duty of loyalty" to the constitution cannot be violated. Against this rationale stands Vidal’s argument that he was just exercising his freedom of expression. That is why Vidal, as well as many critics, take this decision to be more political than legal - a punishment for getting involved in a highly controversial issue. This impression might be reinforced by the split of the CGPJ, where the 'conservative' judges imposed their majority on the 'progressive' and 'nationalist' ones, who defended a more lenient sanction or an outright dismissal. Moreover Vidal, who has in the meantime been hired by the Catalonian nationalist government to outline the institutional and legal organization that Catalonia should adopt if/when secession takes place, has drawn a parallel between the former dictatorship's restriction on freedom of expression and his own case.

However, in contemporary Spanish political culture, references to the dictatorship and its supposed continuation in the current political right are a customary way of avoiding more substantial debate - an easy trick to gather support from some sectors of the public. On the other hand though, an acute factionalism has dominated the Spanish judiciary since the Eighties. The then Socialist government made the appointment of CGPJ members dependent upon the Parliament so that the composition of the body governing the judiciary actually reflects the distribution of power among parties. Since then most judges are known to be either 'conservatives' or 'progressives', as they belong to one of the two main professional associations with ties either to the conservative or to the socialist party. In politically delicate matters, the CGPJ decision as well as the position of each member of the Supreme Court can be anticipated just by looking at the affiliation of their members. Still, it would be naïve to conclude that this political contamination goes only one way. The progressive faction of the CGPG was also bound to vote against the conservative majority in any case - not to mention the 'nationalist' members, for whom it would have been impossible to sanction a judge involved in secession-friendly activities. In politically sensitive cases like this, party politics continues to determine the votes within the CGPJ. The political dimension of the CGPJ's decision on Vidal's case has also been obvious from the start. Therefore lending credibility to each faction's arguments remains simply futile, since they are but serving prefixed politically motivated objectives.

Yet, is this really a case where freedom of expression clashes with constitutional loyalty or rather one where judicial independence is compromised by an open political stance? Had the judge defended an opposite position, i.e. defended Spanish constitutional integrity, would he be sanctioned at all? These questions remain open and eventually boil down to the issue of balancing constitutional rights and principles that may become incompatible: freedom of expression, political neutrality and judicial independence. The key question is the degree of the restrictions that can be applied on the judges’ freedom of expression.

Vidal argues that by writing a draft for a Catalonian constitution he is merely exercising his freedom of expression as a citizen - thus dissociating his civil persona from his professional one. As a result, his duty to defend the Spanish constitutional order as a judge should be deemed compatible with his acts as a private citizen, even if the openly stated goal of such activities is to overthrow the very same constitutional framework. Vidal further argued that his judicial decisions would not be influenced by his private political stance, as he would just apply the existing body of law. In his view, freedom of expression would prevail over constitutional loyalty and would affect neither independence nor neutrality. However, there is an obvious problem with this argument. To dissociate the judge's political position as a private citizen from his role as a judge is to ignore that the latter also performs a function in a constitutional democracy, namely embodying impartiality. A judge that is involved in political activities compromises his symbolic role in the constitutional system. After all, there is no way to demonstrate that the citizen is influencing the judge - unless a clear connection can be established between the rulings or reasoning of the judge and the extra-judicial activity of the private citizen. That is why keeping the appearance of political neutrality is so important.

Such is the rationale that can be found in a number of Supreme Court rulings. For instance, in a 2006 verdict it was established that for a judge to be sanctioned he must have "invoked his position as a judge or taken advantage of it". A few years earlier, in the seminal verdict on this matter, the Supreme Court had underlined that the most relevant factor when assessing a judge's use of his freedom of expression is not the public or private nature of his activity but rather the impact that may have on the citizens' confidence in the judiciary. The foundation of this principle is that fundamental rights can only be limited to preserve or realize other constitutional rights or principles. In this case, the correct functioning of the judicial system was found to outweigh the right to freedom of expression of its members. Incidentally, this is the prevailing doctrine in the Italian constitutional tradition as well, where the Constitutional Court established, in a 1981 verdict that "the dignity of the entire judicial order" is a constitutional value that justifies the limitation on the judges’ freedom of expression.

Admittedly, this may sound far-fetched in a system like the Spanish one - or the Italian, for that matter - where judges are known as 'conservatives' or 'progressives'. Yet, the Vidal case presents a particularity: he has adopted a political stance whose ultimate goal is the breakup the constitutional order that he as a judge has vowed to defend. It is unclear though whether drafting the Constitution would have been enough to constitute a political activity or rather it is the public appearances on the top of the draft that determined the CGPJ’s evaluation.

Nevertheless, political alignments among judges - rather undesirable and yet probably inevitable - are deemed acceptable, so long they respect the confines of the constitutional framework. That said, in the rather brief Spanish democratic tradition, judges are normally quite silent on political matters. Vidal was thus not relying on a political culture where is it is commonplace for a judge to be politically outspoken. Of course, it is debatable whether this should be so and whether a particular case - such as Vidal's - deserves the sanction imposed on him by a conservatively dominated CGPJ. Yet, pretending that constitutional loyalty and judicial neutrality are not affected by Vidal's involvement with independentist associations with apparent links to the Catalonian nationalist government, including the writing of a constitutional draft for a hypothetical Catalonia, seems rather disingenuous. 

In conclusion, the sanction imposed on judge Vidal was bound to provoke strong reactions, stirring feelings of either outrage or vindication, as it is expected from a politically controversial and highly emotional issue i.e. Catalonian independence. Yet from a constitutional perspective, taking into account both Spanish law and political culture, its denouement cannot be seen as a surprise. Rather it is consistent with a number of limitations that restrict a judge's freedom of expression, mostly in view of the need to preserve the perceived neutrality of the judiciary in a constitutional democracy. Admittedly, the fact that the CGPJ was split into two camps, conservative and progressive, when deciding on Vidal's case does not help to support the grounds on which the decision ultimately rests. Then again, it also shows how painful it is to disentangle constitutional and political matters when fundamental rights meet difficult cases.

Manuel Arias-Maldonado is an Associate Professor in Political Science at the University of Málaga, Spain. He was a Fulbright Scholar at the University of Berkeley and a visiting scholar at the Rachel Carson Center in Munich. He has published extensively on socionatural relations, the theory of democracy and contemporary political theory. His latest book is Environment & Society. Socionatural Relations in the Anthropocene (Springer, 2015).