And They call This Democracy? Spain's Anti-Protest Law

Gag Law: Spain’s government tries to push back the tide

 The intention behind Spain’s draconian new anti-protest law is clear: the government simply wants citizens to keep their mouths shut and stay at home.

Spain is one of the European countries that has suffered the most under the effects of the Great Recession. As of October 2014, unemployment rates stood at 24% for the general population, and a whopping 53.8% for people under 25 years of age. Timid signs of economic growth appear now and then, only to eventually collapse amongst the general feeling that Spain is one of the sick countries of Europe — or as the offensive acronym goes, part of the PIGS: a peripheral country gasping for air and incapable of recovering from the financial crash.

The public response to the crisis, besides a mild Keynesian initiative by the center-left PSOE government during its early years, has followed the neoliberal mantra: labor legislation reforms to weaken collective bargaining and limit workers’ rights, an austerity agenda and cuts on social services. Public spending is frowned upon and is severely limited by a reform of the Constitution in 2011, passed by both the Socialist and the right-wing Popular Party, which imposed a fiscal straitjacket on the Spanish budget, forcing it to comply with what would later become the European Fiscal Compact. These are only some ingredients in a mix that includes a constant stream of corruption scandals involving the Spanish elite, from top politicians to businessmen, bankers and even the royal family.

Many Spaniards are understandably angry. Amnesty International reported 45.000 demonstrations during 2012. In 2013, 4.500 took place in Madrid alone. Most demonstrations have been peaceful. Whether they involved unions and workers defending their rights, PAH activists exercising civil disobedience to stop evictions, pro-independence Catalans claiming their right to self-determination, or regular citizens demanding accountability and an end to corruption, Spaniards have fought back against injustice mainly by voicing their discontent. The Popular Party government, however, is not happy with this growing unrest.

Back before social networks and the latest technological gadgets were widespread, the media oligopoly guaranteed that protests deemed undesirable could be controlled to a certain point: those supporting them could be framed as radicals, violent rioters or nihilist thugs. Isolated incidents could be presented as the norm, or as the true intention of the protesters. But newer technologies have made this more difficult, and it is now common to see people recording the police to monitor their actions. Videos of unlawful actions often go viral a few days after the protest.

Both factors, the growing unrest and introduction of new technologies, are among the reasons underlying the Spanish government’s latest initiative to restrict citizen’s rights and scare them into submission: the Citizen Safety Bill, or as those who oppose its introduction call it, the “Gag Law”.

What is the Gag Law?

The main objectives of the Gag Law are two:

1. To establish several “administrative infractions” that warrant fines for those who would commit them. Several of these new administrative infractions used to be faltas, or misdemeanors, under the old Spanish criminal law.
2. To create an “administrative infraction registry” for those citizens who commit said infractions.

The first fundamental flaw of the Gag Law is related to what jurists call “undefined legal concepts.” These are legal concepts that depend on subjective assessment or otherwise non-objective measurements: when a law calls for a “reasonable” use of force, bans “affronts to national dignity” and so on, it is making use of an undefined legal concept. It is sometimes necessary to use them in laws, as not everything can be quantified and specified to the level of detail that is necessary in day-to-day life. However, these concepts are intended to be used with considerable caution in laws that limit rights and liberties of citizens, since they entrust authorities with considerable discretion. The Gag Law is full of these concepts when describing acts that are considered “administrative infractions.”

This is a bigger concern when one considers that some of these concepts are supposed to be evaluated by authorities under stressful situations in which calm, rational judgments are difficult to make. For instance, a police officer in the midst of a demonstration might not be in the best setting to assess whether the words uttered by a protester constitute an “affront to national dignity” or if they are merely an expression of his freedom of speech before deciding to arrest him. The introduction of undefined legal concepts in the law creates the basis for legal loopholes and abuses of power against citizens.

The second flaw is related to the creation of the new “administrative infractions” themselves, which often entail disproportionate fines of up to 30.000 euros for people exercising such fundamental rights as that of protest (in this case, when this is done without an authorization issued by the public authorities). The government claims to be doing this based on the criteria established by criminal law experts. And it is true that many criminal law jurists advise that their discipline be used as the final answer to social problems, thus adhering to what is usually called the “principle of last resort,” that is, that criminal law should always be the last answer to a social problem. While we might disagree with the effectiveness of criminal law in modern societies, it is reasonable to admit that following such a principle is better than an authoritarian government that tries to impose a certain vision of social behavior by establishing thousands of new crimes.

The problem is that the Spanish government has twisted this principle and is following it in a warped way. The Gag Law incorporates several “administrative infractions” because, unlike crimes (which are to be ruled by a judge in a court), these infractions can be imposed by an administrative authority, such as a police officer. This leaves citizens with fewer legal guarantees to defend themselves against the accusation of having committed one. If people wish to prove themselves innocent of an “administrative infraction,” they must stand before an administrative court. And these, under the recent reforms of the Spanish legal system, charge citizens taxes, which criminal courts do not.

Thus, these new administrative infractions become de facto “quick fines.” You either pay them or you go to court, paying taxes in order to do so, and risk losing the whole process, thus paying even more money in the end. The effect that the government hopes the law will have on most people is clear: that they stay at home and don’t risk having to pay ridiculous amounts of money in fines for attending an unauthorized demonstration. Even when the protest is authorized and stays closely within the boundaries of the law, as I mentioned above, those boundaries are so subjective and depend so much on undefined legal concepts that you might still be fined because a Spanish equivalent of Judge Dredd (“I am the law”) will assess your “infraction,” decide you are guilty and sentence you all in the same act. The moral of the story is: stay at home and keep your mouth shut, citizen.

The third flaw of the Gag Law is the creation of an Administrative Infraction Registry that will compile all infractions committed by a citizen in a personal file. Its purpose, according to the bill, is to “note recidivism and assess it in order to issue administrative authorizations that will affect citizen safety.” This bizarre registry, something akin to a “light” criminal record, has been criticized by several Spanish jurists, who consider it to be a list of “bad citizens” and a step back towards darker times.

Beyond the Gag Law

The Gag Law is one step in the process of transforming a liberal democracy into an authoritarian one with less margin for dissent and protest. Paradoxically, one might think that it is a good sign to see the government react in such a blunt way to unrest in the streets and its loss of credibility. It is kind of an old-school reaction: their “velvet glove” does not do the job, so they must resort to the “iron fist,” as a well-known Italian thinker once said. This is, in a way, a sign of how much momentum the alternatives to the current system are gaining.

But this should not lead us to forget that the Gag Law can have disastrous effects on the people caught in its trap. It can ruin lives with its disproportionate fines, or with the social stigma and fear it can cause in people. And it is in these cases that mutual aid will be needed and solidarity networks will have to work hard.

Still, although these are real risks we must bear in mind, it is quite doubtful that the Gag Law will extinguish the climate of social unrest in Spain. While laws are extremely important and have real effects on the day-to-day lives of real people, the government cannot simply overturn social and political shifts overnight through the imposition of individual fines. Complex social dynamics can be as strong as a tide, and too powerful to be to be stopped by a single law. The question is: is the tide turning in Spain? As Galileo famously said, “Eppur si muove.” And yet it moves.

Guillem Murcia is a political scientist and jurist from Valencia, Spain.

from here