The Judicial Ethics Commission, a body elected directly by career judges, considers that the concentrations of magistrates held in front of court headquarters throughout Spain last November against the agreement between the PSOE and Junts and the proposed amnesty law are in accordance with judicial ethics.
The commission has reached this conclusion following a query made by a judge who asked whether these protests affected the principle of judicial independence and the duty of impartiality and integrity to which the members of the career are subject.
In an opinion released this Thursday, the commission endorses the participation of judges in these acts, as long as one condition is met: that there is in the judge "an honest, thoughtful and sincere conviction" that the action object of rejection “may affect the rule of law.”
The Ethics Commission is an independent body of the General Council of the Judiciary (CGPJ).
It is made up of six judges chosen directly by the members of the career and by an academic expert in Ethics or Philosophy of Law, appointed by the previous six.
Its function is to guide the interpretation of the principles of judicial ethics, which were drafted in 2016 by representatives of the four judicial associations, non-associated judges and members of civil society.
The commission starts from the premise that judges enjoy the constitutional right to demonstrate, but warns that its exercise is “limited or affected” by the demands that derive from the jurisdictional function.
These demands, which do not apply to the rest of the citizens, imply for the members of the Judiciary a duty to maintain, inside and outside the court, conduct that “reaffirms the trust of citizens in the judicial system,” the text states. .
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The ruling known today maintains that it is up to each judge, individually, to adapt their conduct to ethical principles.
In this analysis, each one must take into account that his dual status as citizen and public servant obliges him to exercise his rights “always with prudence and moderation and without calling into question the principles of independence, impartiality and integrity.”
The specific case that the commission has examined refers to a rally in which all attendees were judges and whose purpose was to show rejection of the content of the investiture agreement between PSOE and Junts that made reference to
lawfare
(spurious use of justice with Political purposes).
That concentration, in the midst of negotiations between the PSOE and the pro-independence parties to make Pedro Sánchez president, took place in silence, with some attendees wearing the toga and in front of the courts.
There were similar concentrations in various parts of Spain, in which the rejection of the content of that PSOE-Junts political agreement was soon added to the rejection of the amnesty law, which had just been announced.
For the Judicial Ethics Commission, it is important to take these circumstances into account, since they generate a “high-density ethical dilemma” by placing on one hand the duty of political neutrality, independence and impartiality of the Judiciary and, on the other, the obligation to “actively” defend the guiding principles of the rule of law if they are threatened.
The Commission refers to ethical principle number 21, which establishes that "when democracy, the rule of law and fundamental freedoms are in danger, the obligation of confidentiality gives way in favor of the duty to report."
“It is the member of the Judiciary who, after deep, calm and sincere reflection, with a proactive effort to avoid the influence of political biases, must decide whether his attendance at the meeting is motivated by the fulfillment of his ethical duty to show their disapproval of acts that, in their opinion, could violate the rule of law;
or if, on the contrary, his decision is guided by his own personal harmony or antipathy with a political ideology, whatever its sign,” the body notes.
In the first case, the Commission points out, it would be acting correctly from an ethical perspective as derived from principle 21. In the second, it would be acting contrary to principles 3 (judges must promote in society an attitude of respect and trust in the Judiciary) and 9 (the judge must exercise his rights in a way that does not compromise or harm society's perception of the independence of the Judiciary).