11 scorpions in a bottle

"Nine scorpions in a bottle." This may sound like a biological experiment, but in fact is a description of the US Supreme Court made by the legendary Oliver Wendell Holmes Jr., who sat on the Court from 1902 to 1932.

In those days, juridical debates in the highest American court involved political confrontation. For this reason the ideological positions taken by the political parties - and the appointments of judges made in function of these - were more important than the text of the law itself, which was twisted as far as necessary to produce the result desired. Does this sound familiar?

To paraphrase Holmes, the Spanish Constitutional Court, which in recent years has been ever more burdened with politicization and discredit, might well be described as 11 scorpions in a bottle. Its judges are appointed by parliament, the government and the Judiciary Council - not for their juridical knowledge and incorruptible independence, as they ought to be, but in function of their docility regarding the desires of the political parties. This is why journalists can predict the result of most votes, the judges being divided into progressive and conservative blocs. Thus the shameful delays in replacing retired or defunct judges, as political parties (in recent years the PP) wait to regain a parliamentary majority so they can put their appointees in. This is why the judges now number 11, instead of the required 12.

We all remember the four long years they took to deliberate on the constitutionality of the Catalan autonomy statute.

Now, the deeply divided Constitutional Court headed by presiding judge Pascual Sala has contradicted the Supreme Court and allowed the Basque separatist coalition Bildu - which includes the separatist parties EA and Alternatiba, and more extreme separatists from the milieu of Batasuna, the party outlawed some years ago for its dependence on ETA - to run candidates in the upcoming local elections. The clamor of criticism from conservatives in response to the Constitutional Court opening the door for ETA adherents to once again sit on municipal councils in the Basque Country has been immediate.

The next challenge facing the court is the so-called Parot Doctrine, which at one swoop may bring the release of many of the bloodiest ETA criminals, best known by the picturesque nicknames favored in their milieu such as Baldo, Mamarru, Kubati, Txikierdi, Fermín, Paterra, Santi Potros and others, all with many murders to their account; as well as of common criminals such as Miguel Ricart, one of the murderers in the notorious Alcasser case.

The Parot Doctrine was the Supreme Court's most recent attempt to palliate the application of the absurdly indulgent parole provisions included in the 1973 Penal Code (still in effect when many ETA killers were sentenced in the 1980s and 1990s), and to prevent multiple killers, sentenced to operatic, millenarian jail terms, from going free after 15 or 18 years, not even serving the legally established maximum of 30 years. It is so called for Henri Parot, an ETA terrorist who, facing a prospect of 4,799 years in prison, brought an appeal in 2006.

The Parot Doctrine was juridically questionable, and the Constitutional Court is now divided on whether to revoke it or not. The progressive bloc wants to revoke it, so that sentence reductions for good behavior, etc. would be calculated on the 30-year limit and not on the whole sentence, which would allow the terrorists to walk free. The conservative bloc wants to keep the doctrine in place, even if it is juridically shaky, so that the ETA convicts can be kept behind bars.

Aristotle said that "the law is reason free of passion." The 11 scorpions are now in the bottle.