Here Come Da Judge: The Garzón affair

In a café - Spanish - the other afternoon, the television was on. Nothing unusual in this. What was, was what was on. There was a platform of serious-looking speakers. Sounds dull? A party conference maybe? No. It transfixed me. This was an event in support of a judge. It is difficult to imagine a conference either taking place, let alone being televised, in support of "m'lud" in England. But this is Spain.

The event was organised by two of the main unions. Those from the world of the arts and culture were on hand as well to show support for Baltasar Garzón, the most celebrated of Spain's investigating judges.

Back in October 2008, Garzón announced that he was ordering an investigation into crimes committed by the Franco regime. As part of this investigation, graves were due to be dug up. The Spanish attorney-general opposed the investigation, and ultimately Garzón was ordered to call it off. But it didn't stop there. He is now being investigated by the Tribunal Supremo de Justicia (supreme court) in Madrid, accused of "prevaricación" (that word again), manipulating the course of justice and even of some financial wrongdoing. Under the terms of the amnesty of 1977, it is argued (with justification), that Garzón had no right to go around digging up the past.

That he may have exceeded his powers, for which a formal slap on the wrist might have been thought sufficient, has not stopped a process of bringing him to book, one inspired mainly by the far-right in Spain, including the Falange. Didn't know that the Falange still existed? Well they do. The leader of the centre-right Partido Popular, Mariano Rajoy, called the conference in support of Garzón "anti-democratic". The actions of the supreme court have been described, by the left, as "fascist". Forces across the political spectrum are adopting their positions in respect of a judge who, in theory at any rate, acts independently of politics.

For some, Garzón is getting his rightful comeuppance. Others will be revelling in the schadenfreude of a judge with such international celebrity being investigated. Yet more will see the case as an attack on judges' independence. Garzón has not exactly been reticent in courting his celebrity, which, in itself, may be a problem with the system of investigating judges. His attempt to extradite Pinochet was, and remains, his best-known moment in the international spotlight, and international is apt as he seems wedded to the notion of international jurisdiction, something that the Spanish Government has acted to limit.

There is a line of argument that Garzón, in seeking to investigate Franco's crimes, was acting in accordance with law on human rights. The amnesty of 1977 not only heralded a period of collective national amnesia it also undermined any attempt at indicting those who had committed atrocities. This may have suited the immediate post-Franco Spain, but it can also be argued that it left a festering sore, one that has been opened - politically - by the current administration's law on historic memory. An amnesty, so one view has it, cannot rule out a requirement to investigate when the issue of human rights is at stake.

But more than anything, and notwithstanding the accusations against Garzón that he exceeds his powers and is over-zealous, the current case against him highlights the hold that the Franco period still has over Spain. Additionally, one can set the Garzón affair within the context of the spate of corruption allegations. Despite claims that these have been politically motivated, independent investigators are crucial to the exercise of Spanish democracy. If politicians, by their indiscretions, cannot adequately support that democracy, then the judges have to do it for them. A curb on their powers, and this is how one can assess the Garzón affair, might be welcomed in certain quarters, but those powers have never been more important than at present in rooting out the malaise that weakens democratic institutions.

Garzón did go too far. That is the problem. Perhaps he felt emboldened by a political atmosphere, one created by the law on historic memory and not averse to rummaging through the Francoist past. This would have been his first mistake, as it would have politicised, albeit indirectly, his investigation. It may sound unpalatable to those who seek to right the wrongs of the Franco period, but his second mistake was in choosing the wrong investigation and in lining himself up against some still powerful, one might even say dark, forces. And for this, he may end up stripped of his powers. A question will be, will others?


Any comments to andrew@thealcudiaguide.com please.