Rebuilding the future
EL PAÍS has put forward 10 reforms that would transform the country Leading intellectuals share their thoughts on this "Second Transition"
"The best way to minimize corruption entails, in the first place, institutional reforms to introduce a system of checks and balances within the institutions themselves, so there is no exclusive dependence on the limited attention of auditing bodies," says Víctor Lapuente. After obtaining a PhD in political science from Oxford, Lapuente went on to teach at The Quality of Government Institute at the University of Gothenburg, where he researches corruption and government reform. In a recent article published in EL PAÍS - John Wayne, Salander and Spain - Lapuente defended citizen participation as a successful formula to check corruption. But this would require an overhaul and de-politicization of government agencies at all levels.
Question. What are the keys to real administrative reform?
Answer. Countries with the most efficient governments - Canada, New Zealand, Scandinavian countries, the Netherlands - have what we might call the administrative infrastructure. They seek a balance between political impetus and day-to-day management carried out by independent professionals. The separation between the political and administrative spheres is not so clear in Spain, and what we see here is a fratricidal fight between one political-administrative tribe with ties to party X and another tribe with ties to party Y. Each tribe has an interest in covering up for its corrupt members in order to guarantee its own survival, and tends to make short-term decisions. Besides that, the most efficient administrations have incorporated management methods from the private sector. Spain does not have a large amount of public employees, but the civil servant status extends to the major services of the welfare state, such as education or health. This is a hindrance to administrative efficiency.
Q. Are control measures over public body management sufficient?
The costs of party allegiance
"I think it is more important to reform the Party Law than electoral law," says César Molinas, an economist who has worked for Merrill Lynch and for the Spanish government. Molinas is now working on his upcoming book, ¿Qué hacer con España? (or, What to do with Spain?), of which a chapter published recently in EL PAÍS created controversy because of its reference to Spanish politicians as "an extractive elite."
Molinas contends that the real problem lies in the closed party lists that define Spain's electoral system. "This generates a candidate selection process that has nothing to do with their talent or abilities," he says. "The system is perverse because it gives party leaders the power of decision over who participates and who doesn't, and where. The main criteria for making it into the list is loyalty to the leaders. Politicians' merit is reduced to obedience and docility in order to climb rungs."
For his part, José Antonio Gómez Yáñez, a professor of sociology at Madrid's Carlos III University, believes the best approach is to establish a system of primaries and conventions every one or two years, and to increase competition among politicians, mirroring the systems in Germany, Britain or the US.
"It's not the citizens' fault; it's the parties' fault, because they have established rules of operation in an unconventional market - a very regulated one where access is highly restricted. It's as though there were only three restaurant chains that agreed to reduce the quality of their meals or else raise their prices. It's a problem of self-regulation, because they started out by having conventions every one or two years, and now they meet every four. [...] In Britain, which has an implicit party law, a prime minister or opposition leader who failed to call the party conference every September would be taken to the madhouse."
Beyond greater accountability within Spain's political institutions, Juan José Solozábal, a professor of constitutional law at Madrid's Autónoma University, sees no reason for excluding the Crown from the Transparency Law, contrary to what the Popular Party government has argued. "It has been said that the royal palace is not a public agency, but I think it is. It is a special one, but everyone in it except for the king is beholden to the law. The palace cannot be a legal island. I would find it very reasonable if the monarch's income information were released and broken down by items: the cost of security, travel, etc. Opacity and secrecy are not the hallmarks of a democratic system, which in so far as it is possible is a transparent system."
Francisco Rubio Llorente is one of Spain's great jurists, and oversaw the 2006 report on the possibility of reforming the Spanish Constitution for the first time since it was first encoded in 1978. He holds that the issue should have been considered several years ago, before the crisis hit.
"Now there is an absolute lack of consensus among the parties, and an upsurge of nationalist tension. It is not possible to consider this reform when disagreements have reached almost personal levels. [...] Not only is there a lack of consensus, but one might almost say that there is a lack of common ground. Things can be done to address the crisis, which is the really urgent thing. There is no need to change the Constitution for that. What is needed are political agreements."
A. External oversight is necessary but insufficient. Internal oversight is better, especially the role played by individuals inside public institutions who can relay information to the media or to the relevant oversight bodies. They need to enjoy more protection in Spain, for instance, by making it a crime for a superior to investigate which employee leaked information.
Q. Are we above average on the corruption scale? What makes Spain different to other countries?
A. We are at an intermediate stage. The key difference is that in countries with less corruption, cases hardly ever make it beyond the attempt stage, since they are stopped early by a coalition of public employees with the ability to act and an independent press with easy access to information about public activities - the kind of information that is extremely difficult to obtain here. As a result, while in other places a dubious deal to build a hotel never gets signed, in Spain we find out about it several years after the fact, when the pillaging has already reached very high levels.
Q. So you think the problem is a lack of alarms...
A. By the time we find out, by the time our corruption cases have reached the courts, not only has the illegal building already gone up, but occasionally it is already in the hands of third parties. And obviously the statute of limitations has already expired. No matter how many super-judges and super-police officers we have, it is harder to fight corruption in these conditions. If the media could be better at early warning, if Clark Kent could do his job better, then we wouldn't need Superman later.
Q. Is there a relationship between excessive politicization and corruption?
A. Very much so. In a paper published in Political Research Quarterly we showed that politicization is a very important factor when it comes to understanding why some countries have more corruption than others.
Q. In Spain, political parties have been talking about government reform since the democratic transition (of the late 1970s). Why hasn't it been done?
A . There was an implicit covenant during the Transition: loyalty to the new democratic institutions in exchange for not altering the basic structure of government. Besides, serious reforms require political support at the highest level and this never existed; the "who is in charge of this issue" became more important than "how can we carry it out most efficiently." Thirdly, unlike other countries, many Spanish politicians are public servants and it is always harder to reform "your people" when this could entail their losing privileges.
Q. There are voices within the ruling Popular Party (PP) that defend government reform on the basis that the "state of the autonomies," in which regional governments have significant powers, has become a giant source of wasting public money. Do you share this opinion?
A. There is waste because there are so many administrative levels, and the state of the autonomies has contributed to this. But it is not the only factor. Three levels of government seems like the most desirable system for a country like Spain: local, regional and central.
Q. So the provincial deputations have no meaning?
A. If we consolidated [towns and villages] into larger, more homogeneous municipalities, the diputaciones and other bodies situated somewhere between the local and regional governments - bodies that are almost opaque - could disappear. But I see that as a difficult thing to achieve, because in Spain government bodies seem to have the gift of immortality.
Q. Do we need to reduce local government in terms of the number of municipalities?
A. Experience shows us that most developed welfare states carried out massive merger processes decades ago in order to provide services in a more efficient and equitable manner - because residents of smaller locations have access to more services - and to reduce corruption by weakening the power of local bosses.
Q. Do we need to regulate mayors' salaries?
A. The problem is not so much their salaries as limiting their powers in the day-to-day running of local government. Countries with the best quality of government have developed systems where a group of professional, self-employed managers implement policies. We have the potential to do the same through our world-class management schools and local government workers, who are highly motivated for these jobs. But there is a lack of political will on the part of our majority parties.
"Justice today works much as it did in the 18th century"
The judiciary is the only state power that did not become democratic during the Transition and it is failing to provide an adequate service to citizens today. As providers of a public service, judges must be better and more efficiently organized, and have access to greater resources and means. This means improving the coordination of the justice system, which currently has workers from up to five different judicial bodies, which in turn answer to central or regional authorities, depending on the case. The notions of equality before the law, the right to effective protection from judges and the right to a fair trial are often reduced in practice to mere statements of purpose, since the courts never work speedily nor are they always efficient, which means the number of judges must be significantly increased. Procedural rules must be reassessed to ensure basic guarantees are maintained while achieving speedier trials and adequately protecting the presumption of innocence from the so-called "television convictions."
After an entire life in law, first as a labor lawyer and then as a judge, Manuela Carmena retired in 2010, set up a blog and invented a board game about the way the justice system works in Spain. In it, contestants have to overcome the same obstacles that any real-life litigant would.
"There are many similarities between a modern-day lawsuit and one from the 18th century. Too many, unbearably so," she says.
Question. Is it true that justice is the only public service that has failed to modernize?
Answer. In a sense, yes. The big difference is that the justice system was cleansed of corruption in the Transition. But the way it works is terribly similar. I think it's because what they teach at law schools is archaic. The curriculum has barely changed. Law is removed from society, and so are judges. And lawmakers do not study the rulings that judges hand down.
Q. What is the reason for the gridlock - too many suits or a lack of means?
A. We don't have enough means, but the basic problem is brutal ignorance about how to run the justice system. Nobody has bothered to improve management. Everything is done exactly the same way it was done two centuries ago. There is a large amount of entirely bureaucratic procedures, like the fact that a citizen cannot appear in court by himself but necessarily in the company of a procurador. It's an absurd rite.
Q. Should the procurator or court officer be abolished?
A. As a mandatory figure, absolutely. It's not just unnecessary, it's actually offensive for citizens... For another person to have to physically turn in a piece of paper for you... whatever for? The whole mechanism is based on paper, paper, paper.
Q. So things could be done better with the means currently at our disposal?
A. No doubt about it. Although I think there is a shortage of judges, even more so now that they're going to eliminate nearly 1,000 substitute judges - that's going to be a mess. But the essential thing is better management. We don't have managers the way the health system does. And we need to eliminate paperwork.
Q. Does the Constitution need reforming with regard to the justice system?
A. No, it needs developing. For instance, the Constitution meant for the General Council of the Judiciary [the oversight body] to be truly autonomous.
Q. Can a judge decide not to apply the law that would force him or her to order a home eviction, or is that impossible in law?
A. The law always interprets the norm. The Civil Code says that the law must be applied according to circumstance. It is essential to come up with new interpretations on this issue. The law tells us what to do with the furniture in the house, but not with the person who is left out on the street; the law is shamefully silent on this point, and not in agreement with the constitutional right to a decent home. There must be social services to guarantee that people will not be left out on the street.
Q. Are you proposing that a judge who orders an eviction should make it a condition that the family be offered another home?
A. Of course.