Juan José Pérez Burniol
La vanguardia
02/03/2019
ENGLISH
These days, it is often claimed as an undisputable principle that democracy is above the rule of law. This daring statement, which is normally declared with as much confident assurance as condescending sufficiency, rests on an initial fallacy: the rule of law would only involve the syllogistic application of the legal rules to concrete facts. Whereas, the truth is that the rule of law is the fundamental ethical and political mandatory principle that free women and men must be governed by predetermined rules which are accepted by all, for the sake of peace and freedom.
Cicero had it clear when he argued that where there is no law, there is no city, that is, no community of citizens who govern themselves. Centuries later, Saavedra Fajardo wrote: "On the stone of the laws, not on the will, true politics is founded. They are the government lines and the highroads of the reason of State. The ship of the republic sails safely taking them as certain courses". And Friedrich Hayek has argued the same not so long ago: what distinguishes a free country from a dictatorship is precisely respect for the rule of law. All this is so because being free means not being subject to the arbitrary will of another person, be it a tyrant or a more or less numerous or enthusiastic crowd. For everyone, rules and governed must submit to the law. There is a special meaning to this when the Constitution itself is concerned, because the constitutional text is the reference which has to be invoked by those who make the laws (the parliaments), by those who apply them (governments and administrations) and those who interpret them (the courts).
Therefore, to oppose the democratic principle to the principle of legality denotes a wrong understanding of what democracy is. This follows from the judgement of the Supreme Court of Canada on the secession of Quebec. Of course, the secessionists claimed the primacy of the people's will based on the democratic principle, which enshrines the people's sovereignty expressed through the ballot. And it is true that, in a representative democracy, the axis of the democratic process rests on the citizens' will expressed through the election of their representatives in the federal Parliament and in the legislative assemblies of the federated States. However, if we identify democracy with the popular will expressed through the vote, such will should not be interpreted out of its context, unconnected to the other principles composing the constitutional order. Thus, in a complex State with different levels of government, there may be different majorities in the federal Parliament and in the assemblies of the federated States, without it being possible to maintain that one majority is more legitimate than another as an expression of the citizens' democratic will. For this same reason, the ruling declares that there is no democracy without rule of law. Therefore, the law establishes the framework within which the "sovereign will" can be expressed and in which its mandate must subsequently be executed.
In sum, for democratic institutions to be recognized as such, it is necessary that they be based on the law: a law that makes citizens' participation and accountability possible, through public institutions established by the Constitution. As the ruling states: "It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values". Consequently, in order to assume the scope and relevance of these values, we mast take into account the reasons why neither the Constitution nor the rule of law can be subject to the rule of the majority: 1) To protect fundamental rights and individual freedoms; 2) To protect minorities against the pressures of the majority and guarantee social and political pluralism; 3) To preserve the division of political power at different levels of government, for which it is essential that no elected majority at any of these levels can unilaterally usurp powers that do not correspond to it. Given these three reasons, the conclusion is clear: the majority vote in a federated state or autonomous community does not justify the violation of the Constitution. On that basis, the ruling states that it is a mistake to oppose democracy to the rule of law and constitutionalism, that is, to oppose the democratic principle to the principle of legality: "Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it". What does not rule out that a political solution must be sought should there be a political problem, but this has to take place always within the framework of law.
References
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do?site_preference=normal
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