The Constitutional Court is wrong

The Constitutional Court is wrong when, identifying loyalty to the Constitution with militant democracy, it concludes that from our Fundamental Law it is not possible to impose an unalterable oath formula as a prerequisite for the acquisition of parliamentary status. Beyond the details of the decision on the oath of the deputies of the XIII legislature that we have just learned about (through a press leak that, however inadmissible it may be, no longer seems to shock anyone), what matters now is explain the misconception underlying the court's reasoning on the crucial issue of loyalty to the Constitution.

A mistake that is massive, because it ignores the political dimension of the Constitution and leaves it reduced to a kind of strange meeting point of supralegality in which an intricate complex of subjective rights and labile procedural rules come together from which any interpreter skillful can draw the conclusion he needs. An à la carte Constitution —one could say— suitable for a tear and a tear, which is the result of ignoring that components qualitatively different from administrative, procedural or other regulatory sectors converge in constitutional law. I forget that, in turn, is the basis of the phenomenon of progressive liquefaction of our Constitution that we are witnessing.

There are two fundamentals of the discrepancy, theoretical and empirical.. The theoretician starts from a very different idea from the one handled by the court about what the oath of constitutional loyalty is and entails.. Put quickly, there are three options that support obedience to an established regime.. (i) The subjection of those who see Power as a foreign force to which they are fatally handed over as a result of a state of political dispossession (derelict). (ii) The submission of a citizen to a political order considered his own that —possibly because he does not feel particularly threatened— does not require of his citizens/subjects an active exclusion of those who threaten to destroy it. (iii) The one that introduces the express obligation to exclude any other ideological alternative and receives the technical name of militant democracy.. In the first case, the oath is worth nothing, it is a simple formal trick; in the second, it means committing to an obligation of mutual loyalty that does not impose the exclusion of the enemies of democracy, but does require loyal respect for its material contents.. In the third, the obligation also becomes an active duty to act against anti-democrats who are outlawed..

Well, this is precisely the conceptual framework that our court dispenses with, limiting itself to affirming that since our Constitution does not embrace militant democracy, the oath does not carry with it the duty of loyalty, but is reduced to mere compliance derived from the legal imperative. to obey her. Loyalty becomes compliance, and alternative oath formulas that do not “contradict the essentially formal nature of the oath act and its ultimate sense of representing an act of homage and respect for the Constitution” are perfectly fit.. But abiding is not the same as swearing. Compliance is the acceptance of a politically inane subject (from the Latin inanus, empty) who, given his state of political disarmament, makes obedience a factual fact to which he does not consider himself bound beyond the force that eventually compels him. and endorse. Observance converts the oath into a requirement that does not entail any lasting obligation because it exhausts itself and is the opposite of loyalty; in reality, an invitation to disloyalty itself: the modern version of the submission typical of a serf of the glebe who simply complies because he has no other choice. Loyalty is the obligation to respect the funds as well as the forms and for this reason one swears or promises without tags that may imply distorting the oath1.

But let's leave here the abstruse theoretical reasoning (for those who want to go deeper I refer to the work of Professor Leonardo Álvarez in Constitutional Tribune) and go to the field of the empirical, to what the German doctrine has called constitutional feeling (Verfassungsgefühl). Can anyone imagine the next President of the Government swearing in by “legal imperative”? To the constitutional magistrates who have handed down this sentence invoking such a formula in their promise? Can any newly hired State official do it on similar terms? would be admissible. Beyond the spectacle that it would entail, it would generate a distrust in the sincerity of the oath that would question the veracity of the commitment. And it is that the oath —says Giorgio Lombardi— represents a “guarantee of the sincerity of the promise, of the veracity of its affirmation”, that is to say, through the sworn expressly assumes the duty to exclude duplicity and fraud that implies admitting the way to deny the background first and destroy it later.

*Eloy García, Professor of Constitutional Law.

1Those who like constitutional history will remember that in the Liberal Triennium, Fernando VII resorted to the procedure of introducing “a tagline” in the speech prepared by the ministry, adding his own unconstitutional opinions to bring down the Government and ultimately to destroy unfairly the Constitution of 1812, which ended up getting.