Garzón: punished for the wrong reasons
The world renowned Spanish judge Baltazar Garzón has been punished by the ultimate sphere of justice from his country. Spain´s Supreme Court has unanimously (a detail which reveals the level of hatred his colleagues feel towards his “celebrity leftism”) forbidden him from performing any activity as a magistrate for eleven years. If the sentence is not overruled or reduced by the Constitutional Court or by the European Court – which I´m not entirely sure is possible – such a prohibition will result in a compulsory retirement for the judge. After all, he is 56 years old and will therefore be nearing seventy when the sentence is served.
Considering, however, the reactions of most organizations which congregate judges, such as the International Committee of Jurists, for example, pretty soon someone will suggest that Garzón is given a seat in some international entity. Someone will probably say: “If Garzón, who was so unfairly punished, cannot be a judge in Spain, then let him be an international one!” Should there be an opening at, say, the International Court of Justice, for instance, it is predictable that influential judges with a propensity to the left shall put all their efforts into taking as their own a judge who works with “such a courage and independence”. If such an opening does not come up, then you can bet that some other international court will remember his name. It is easy to foresee that Garzón will not be unemployed as a judge for long. And if he prefers to resume his duties as a lawyer, clients will certainly not be lacking.
A reader might say that justice cannot – or should not – be politicized, by labeling judges as “leftists” or “rightists”. It certainly should not, but the fact is that it can; even though every judge prefers to deny any ideological influence in their decisions. When forced – after much insistence and polite smiles from a pretty interviewer, for example— to confess a “slight inclination, Your Honor…”, a judge might say he is a “centrist”, which is a usually a good answer. I do believe that most judges in democratic countries are indeed “centrists”. Should, nevertheless, a judge admit, in a rare impulse of honesty, to be a “leftist” or a “rightist”, his decisions would then probably start being seen as suspicious every time a trial had a political connotation. And then, as much as such judge claimed to be judging the case with all necessary fairness, his ideological rivals would never believe such allegation, stressing that the judge´s subconsciousness would be unawarely betraying him and influencing his decision.
It is common in political journalism for a writer to try to predict how this judge and that judge will vote, especially when the subject is of a particular importance to the president who nominated such judge. This is a good reason to put an end to the old constitutional practice of giving the power to nominate superior court judges exclusively to the president of the nation. The nomination should come alternatively from the judges themselves and from the Executive branch, preserving thus the independence and harmony among the powers/branches. The unfortunately correct popular presumption is that gratitude will always have a strong place in a supreme court judge´s decision, according to the nature of each case. And in dictatorial countries – or even semi-dictatorial ones, such predictions are never wrong.
It is normal and expected for the political philosophy to influence opinions – even juridical ones. It is not rare even in the same family that relatives diverge strongly in their political views, whether it regards local, national or international politics. Of course this divergence inside a family is not that important. However, when people from a family become judges and take positions in the high courts, these differences start to have a bigger repercussion. Especially when the “jurisdiction” extends to the entire planet – a consequence of the dissemination of human rights, for example.
In this article´s headline I said that Garzón was punished for the wrong reasons. According to the first media, the accusation against him – the only one which maybe deserved some punishment — was to order the recording (i.e., “wiring”) of conversations between lawyers and their clients accused of illicit acts. The media does not clarify, however, if the judge had ordered the wire on the lawyers or on the clients. As far as I can see, he could not have wired the lawyers´ phones because he would therefore be interfering in the professional secrecy to which lawyers are subject. A lawyer and his client have the right to speak frankly – and if the client cannot talk on the phone with his lawyer, the latter might not be sufficiently informed and therefore might present a weaker defense. He might even lie unnecessarily, trying to defend the person who hired him. And might even be subjected to a vexatious situation, being unaware of facts – and everybody knows a client should not lie to his lawyer.
If, however, Garzón had ordered only the wiring of the phone belonging to the people who were suspect of criminal acts, then there would be nothing to censor in the actions performed by the controversial magistrate. Considering that the wiring of a phone must be “authorized by a judge”, as a judge himself Garzón´s procedure could not be questioned – unless in Spain the law determines that only a few specific judges can authorize the wiring of telephones, which does not seem to be the case. Also, it would not make any sense if details of criminal acts came up on wired conversations and the authorizing judge had to erase any confessions of crimes if a lawyer was on the other line. If, for example, a suspect said that “the money I stole from the government is in my brother´s house” or that “the children I´ve killed are buried in my ranch”, such declarations could never be ignore by justice. The right of privacy cannot be so wide. If the criminal and his lawyer need to speak in all frankness, then let them speak in a far place or inside the lawyer´s office, where there are would be no wiring devices. The comfort of the use of a telephone cannot overcome the need that society has to protect itself against criminal behavior.
Other acts by Garzón which have caused commotion were the following: the arrest of Augusto Pinochet in 1998, when the former dictator was away from his country due to medical treatment; the alleged favoring of a banker who supposedly paid him to perform lectures in New York; and the opening of investigations regarding the Spanish Francoism, object of an amnesty in 1978. The remuneration for the lectures, since not forbidden by Spanish Law, could never be reason enough for his “judicial exile”. A warning should have been sufficient. But if such a procedure became a trend, judges who often appear in the media would be more and more invited to present profitable lectures, “disappearing” from the workplaces. On this subject, it would be convenient that every court prohibited their judges from accepting any kind of payment for classes and lectures. Therefore, judges from the International Court of Justice or the International Criminal Court, for example, would not be able to teach regular classes and would not be allowed to receive any kind of payment for lectures. Their high salary would be justification enough for such a measure.
Which reason would justify Garzón´s punishment? Only his pretense to become a universal judge without asking permission to do so. Supported by his own conclusion that he was a “special judge”, he started to arrest and sue whoever he wanted, provided the causes were crimes against humanity, human rights violations or similar crimes. Following this same line of thought, even the Pope would be able to be arrested, under the argument that he was not harsh enough when punishing bishops accused of pedophilia, for example. Garzón argued that crimes against humanity are not subject to prescription – which is his own opinion – and that human rights are universally applicable. That is why he, Garzón, had taken the reins of universal justice in his hands and decided to arrest and punish former dictators, ignoring what had been previously accorded after exhaustive discussions in countries which lived under an exception regime. The idea that human rights must be obeyed in every country is excellent, but it is necessary that the United Nations or similar entity determines which judges have the appropriate jurisdiction and competence to impose human rights on a global scale.
The number of human rights – nowadays there are tens of them — varies according to the style (some more concise, others more prolix) of the person who lists them. Only moral idiots can nowadays oppose the enforcement of such rights in every corner of the planet. Still, it is necessary for these rights to be discussed and approved by all countries. In countries which have been through civil wars and have withstood a high level of bloodshed, when the opposing sides reach an agreement and decide to put an end to all quarreling and to mutually erase each other´s respective offences, it is not up to a judge to appoint himself as “universal”, interfering as if he was a “king of the planet” with no restrictions to meddle with everything that was arranged. Closed and cauterized wounds should not be reopened. It is also not possible to ignore the existence of the International Criminal Court and other provisional courts which are responsible for judging crimes against humanity.
The danger in Garzón´s innovations lies also in the fact that his behavior can stimulate other judges to do the same and, exasperated by impunity, sue any politician who is imprudent enough to put his feet outside his own country. And also: if, for example, four Spanish judges start arresting and suing former dictators or even elected presidents, reaching different conclusions regarding their level of guilt, which decision should be considered as the correct, authentic one? The gravest? The softest? And average of all punishments?
I am saying this merely to stress that local judges from any country – Spain, in the present case - cannot be turned into “world judges” out of their own self-proclamation or initiative - even if local law allows for such a freedom of action due to a legal slip or loophole, sufficing for the judge/accuser to stress that there were three or more Spanish people among the people massacred by a current or former dictator. In such long and violent conflicts there are always victims from many different nationalities. Violence fosters violence and cauterized wounds are better left alone. Justice cannot be indifferent to its practical and peacemaking functions. And for a more absolute justice, let the system be disciplined by a world authority and not according to the opinion of each and every judge of the planet.
(February 10, 2012)
