Why are there street protests?" That was the question that Mariano Rajoy asked himself in 2005, when he was the opposition leader and the Socialist Party was in power. Then he went on to provide his own answers: "There are protests by millions of Spaniards so that the government will change its harebrained antiterrorist policy... And there are protests in Salamanca because people don't like to have things rammed down their throats... And there are - and will be - protests in defense of the National Water Plan."
Seven years later, now that Mariano Rajoy, of the Popular Party (PP), is sitting in his prime ministerial office in La Moncloa, street protests are no longer to his liking. The same man who, during the first two years of the Zapatero administration, encouraged and actually attended an average of one protest every two months (over antiterrorist policies, the transfer of Civil War archive material to Barcelona, same-sex marriage, abortion legislation and water management), often standing in the front row, has irked a considerable amount of people by pitting the few thousand protestors who marched in front of Congress on September 25 against most of the 47 million Spaniards who did not, and who represent "the silent majority."
Speaking at the Americas Society in New York following the protests in Spain against the austerity measures and against politicians in general, Rajoy said: "Allow me to acknowledge the majority of Spaniards who do not demonstrate, who do not make the front pages of the newspapers and who do not appear in the opening item on the newscasts. They are unseen but they are there, and they are the majority of the 47 million people who live in Spain. That immense majority is working, if they can, giving the best of themselves to attain the national goal that concerns us all, which is pulling the country out of this crisis."
Rajoy's statement was met with two additional protests back home, and this newspaper received dozens of letters to the editor complaining about his words. "I felt insulted, and coming here is my answer to that," said a lawyer who joined a new march before Congress on Saturday.
Protests are a constitutional right, and they indicate the discontent of society"
But is Rajoy not right when he talks about a silent majority of millions of people who do not protest in public? "In a democracy, the majority is never silent," explains the sociologist Belén Barreiro, who was the president of the public agency Center for Sociological Research (CIS) during the Zapatero administration. "There are numerous tools to know what people think, from elections to opinion polls. The latter are a habitual tool in all democracies. But protests are important, too. Not only are they a constitutional right, they also indicate the discontent of a portion of society."
The way things stand now, Rajoy's numerical comparison in New York is turning against him. Those few thousand protestors were expressing an unhappiness toward Spain's political class that is shared by millions of Spaniards. "You cannot pit active citizens with challenging attitudes against passive citizens with suffering attitudes because at the present time they are two sides of the same coin," warns the sociologist Carlos Lles.
So say the CIS opinion polls. Most Spaniards now feel that politicians, political parties and the government are the country's third-worst problem behind unemployment and the state of the economy. With Rajoy already in government, a CIS survey in July of this year showed that 84.9 percent of citizens considered the government's track record regular, bad or very bad. And 62 percent, according to another poll by Metroscopia, disapproves of labor market reforms.
María Dolores de Cospedal, the PP's secretary general and regional premier of Castilla-La Mancha, recently compared the September 25 march with the failed military coup against Congress in 1981. "Both attempted to cover the mouths of all Spaniards," she said. Her boss's statements in New York introduced a worrisome variant: who is trying to cover who's mouth?
Social unrest does not always result in a battering at the polls, say experts
There was a famous speech by Richard Nixon called "The Great Silent Majority," dating back to November 1969, when the United States was gripped by violent protests against the Vietnam War. In it, he said that "if a vocal minority, however fervent its cause, prevails over reason and the will of the majority, this nation has no future as a free society."
In that same speech, however, Nixon explained his plans for a US troop withdrawal that lasted four years. In 1972 he was re-elected with a majority. At the other end of the spectrum is the silent majority that kept Franco in power in Spain. Fear of expressing one's opinions - which was forbidden, in any case - and sustained economic growth made it possible for the dictator to remain glued to his seat.
Barreiro says that social unrest does not always result in a battering at the polls. Some historians and sociologists criticize the very idea of playing with such an intangible concept as the silent majority.
"By definition, a silent majority is in need of an interpreter," says Miguel Martorell, a professor of contemporary Spanish history at the distance university UNED. "A democratic government has full legitimacy. The use of such an intangible concept is a way to try to legitimize a specific position. It makes no sense. To appeal to the silent majority is to try to find a message in tea leaves."
Another historian, Ángel Viñas, says that in a democracy, public opinion is expressed through the polls. "When there is deep social unrest, there is a minority that takes to the streets," he says. "Rajoy's words are an old trick, but it is also typical of an authoritarian regime: whoever does not protest against me is with me."
There is still another angle: fear that the street, like Nixon warned, could impose its criteria. The secretary of state for culture, José María Lassalle, this week published an article in EL PAÍS titled "Antipolítica y multitud" (Antipolitics and multitude), in which he alleged that replacing deliberative institutionalism with the cries of the population is not democratic, and neither is holding that the will of the people is above the law.
Ricardo Montoro, an economist and sociologist who presided the CIS under the PP administration of José María Aznar, said that these days 10 million Spaniards would vote for the PP. Instead of backing Rajoy's statement, he said that "millions of Spaniards who support the PP were surely grateful for that reference to them, following the media display of recent days. In a democracy, what really counts is what is expressed at the voting stations."
Both Viñas and Barreiro underscore the depth and breadth of social unrest in Spain, where the feeling of despondency is such as has not been seen here for 70 years. Mariano Rajoy, who was ready to try to improve Spain's poor image during his trip to New York, had to swallow a couple of bitter pills. First there was a dark report on the social situation in Spain in The New York Times, with pictures of people rummaging through the trash. The second was the protest in front of Congress. Someone very familiar with the power (and the weaknesses) of street protests, Toni Ferrer of the labor union UGT, says: "That speech by Rajoy is a way of not facing up to reality. A majority is rejecting his reforms and he is looking the other way. Social psychologists define it as a hatred of the mirror used by Snow White's stepmother."
In fact, the reflection offered by the mirror is not the best that Spain has ever seen. Neither is the violence of a few protestors, but concealing the reality is an all-too-real temptation. "It is foolish to televise all the public order problems because they are an invitation for further protest," said Jaime Mayor-Oreja, president of the Popular Group in the European Parliament, telling the Cope radio station that what he likes the least are the broadcast images of the police charging against protestors.
The sociologist Lles notes: "When politicians in their statements opt only for [the images] that are most convenient to them in each case and ignore - or despise - the rest, they are fueling the legitimacy crisis that the CIS opinion polls are revealing."
Could the government "modulate" the law on the right to protest?
The ruling Popular Party (PP) has suggested the possibility of limiting one of the most fundamental rights in the Constitution: the freedom of assembly and demonstration. To use the same word as the government delegate in Madrid, Cristina Cifuentes, who came up with the proposal, the idea is to "modulate" the law.
This is just one of the political and legal initiatives resulting from three recent street protests in front of Congress in Madrid. The first rally, on September 25, had been authorized by Cifuentes herself.
On Tuesday Cifuentes discussed the possibility of opening a "debate" to modify the 1983 law regulating freedom of demonstration. The regional premier of Madrid, Ignacio González, also of the PP, called it a "reasonable" idea to prevent the "collapse" of cities and let the rest of the people go about their business.
Meanwhile, the attorney general, Eduardo Torres-Dulce, offered a confusing statement that did not rule out the possibility of legal reform.
Everything seemed to indicate that the idea was gaining traction. But then the Interior Ministry's secretary of state for security, Ignacio Ulloa, came out and said that no such reforms were being contemplated. The minister himself, Jorge Fernández, expressed a similar sentiment in private during a visit to Rabat.
Even if some people do not believe that the government will follow through with such a controversial idea, there has already been a flood of criticism from the political, legal and union fronts.
Ultimately, the real question is whether the government, despite its absolute majority, would have enough constitutional leeway to change the law.
A reform of this nature raises a number of questions for lawmakers. The freedoms of assembly and demonstration are fundamental rights that enjoy special protection. They constitute a necessary channel for democratic participation. These freedoms already have clear limitations that are established in the Constitution and have been amply developed by the jurisprudence of the Constitutional Court.
The basis for any analysis must necessarily begin with the freedom itself, which is protected by Section 21 of the Magna Carta: "The right to peaceful unarmed assembly is granted. The exercise of this right shall not require prior authorization. In the case of meetings in public places and of demonstrations, prior notification shall be given to the authorities, who can only forbid them when there are well founded grounds to expect a breach of public order, involving danger to persons or property."
In light of this, how far could this freedom be "modulated"?
"The Constitutional Court has always considered that any interpretation of Section 21 must extend the freedom and restrict the limits," explains Eduardo Vírgala, a professor of constitutional law at the Basque Country University. "And legislation, as it stands now, sufficiently protects everybody's rights - those who want to protest and those who want to circulate. The Constitution's only condition is that there be no breach of public order. How else could you justify limiting this fundamental freedom?"
Would-be demonstrators need only inform the authorities of their plans, with no authorization required. If the rally is going to be held in a place of public transit, authorities must be told at least 10 days in advance, or 24 hours in urgent cases. The breach of public order condition already lets officials not just prohibit a march, but also "propose a change of date, place, duration or route." These are the present rules of the game.
Cifuentes focused on the possibility of changing the law to have greater freedom to modify rally routes and schedules in order to bother the fewest number of people. Yet one of the basic goals of any protest is precisely for all citizens to be aware of what is happening. If the government were to choose the when and the where, freedom of assembly would no longer have the same kind of scope.
"Freedom of demonstration is exercised by bothering others. Otherwise, it makes no sense. The freedom expressed in Section 21 is not just freedom of demonstration, but of demonstrating wherever you like. It's a very delicate issue, but the only possible limit to this right is the breach of public order limit set forth in the Constitution," says Juan José Solozábal, a professor of constitutional law at Madrid's Autónoma University. "This is a freedom. If you start regulating it too much, you kill it. That is why the Constitution does not establish prior authorization as a requirement. If it did, it would become a borrowed right, not a fundamental right."
The Constitutional Court has established the possibility of limiting freedom of demonstration when there is a risk that essential services could not be provided, such as ambulances or fire trucks.
"There are already limits," says Solozábal. "But they always fall under the umbrella of public order. Perhaps there could be a better definition of when exactly public order is being breached, but one needs to be very careful with that. This is an extraordinarily important issue."
The idea has not gone down well at all in Congress. The Socialists, the leftists of Izquierda Plural, the Basque and the Catalan nationalists declare themselves "alarmed" at the mere notion that the government could "modulate"- which they view as a euphemism for "restrict"- such a basic freedom in a democratic society.
The Socialists are also criticizing the fact that the PP called street protests while it was in the opposition, and now that it is in power it wants to put a limit on them. Soraya Rodríguez, the Socialist spokesperson in Congress, warned that her group will oppose such a move very vocally if the government tries to go ahead with it.
"This is very worrisome," agrees Emilio Olabarria, an MP for the Basque Nationalist Party. "The government delegate in Madrid has used an expression, 'modulate,' which lacks any legal content whatsoever. What does she mean by that? What is she talking about? Prior administrative oversight of rallies? Does she have any idea what she is proposing? If something like that ever happens, we will protest with all our strength against the cutback of a freedom that guarantees democracy and is perfectly defined in the Constitution and in constitutional jurisprudence. Instead of limiting people's freedoms, maybe the government should limit all the [spending] cuts, which is what is exasperating citizens."
Sindicato Unificado de Policía, a police union that has already expressed opposition to any legal changes to freedom of assembly and demonstration, believes the announcement is a bluff and that the government will not go ahead with it.
"We believe that Cifuentes is being pressured by the PP's hardliners, but that in fact this proposal will not get anywhere," says the union's secretary general, José Manuel Sánchez Fornet. "It makes no sense, and even she herself doesn't quite know what she wants. In any case, in order to open a debate we would first need to see the real figures on the table. Cifuentes is talking about more than 2,200 protests in Madrid this year alone, but she is concealing part of the information. I am certain that most of them took place on the sidewalks and didn't bother anybody. Anyone who lives in Madrid knows that the city is not in a permanent state of collapse because of marches, and that only four or five big ones are a nuisance. First, let them provide real data, and then we'll talk. They should also consider that if the possibility of protest is taken away from people, that unrest will come out in a different way, and it will be a lot worse."