For centuries Spain ran caste societies in which a person's rights depended on their blood. The 1978 Constitution set out to bury that legacy by declaring, in Section 14, that everyone is equal before the law. Yet those who hold the most power have built a new estate: the aforados, first-class citizens with made-to-measure justice.
A legacy we thought we had left behind
The Spanish Empire imposed on its territories in the Americas and the Philippines a system of social stratification founded on the ideology of «purity of blood», which many historians regard as a forerunner of modern European racism. The population was sorted into three broad groups —Spaniards, Indigenous people and Africans— and the children of unions between them were deemed to have «stained» blood. These mixed groups were known as «castas».
Colonial law went on to classify those mixtures in painstaking detail. Among the labels that appeared most often in baptism, marriage and burial registers were:
- Mestizo: child of a Spaniard and an Indigenous woman.
- Castizo: child of a mestizo and a Spanish woman.
- Mulato or pardo: child of a Spaniard and an African woman.
- Zambo: child of an African and an Indigenous woman.
- Morisco, coyote or chino, among many other categories with no uniform definition.
Each label carried privileges or discrimination. At the top stood the Spaniard born in the Peninsula; at the bottom, the enslaved person taken from Africa. By the late eighteenth century it even became possible to pay for a «grace» allowing one to be recorded as white. Status, in short, could be bought.
Section 14: the promise of equality
The 1978 Constitution formally broke with that logic. Its Section 14 provides that Spaniards are equal before the law, with no discrimination on grounds of birth, race, sex, religion, opinion «or any other personal or social condition or circumstance». It is one of the cornerstones of the rule of law: the law is the same for the powerful and for the humble.
And yet the letter of the Constitution coexists with a very different reality. Under the Constitution itself and later legislation —including the 1985 Organic Law of the Judiciary— a system of aforamientos has taken root, reserving for certain office-holders a court different from the one that applies to any other citizen.
The new caste: the aforados
Officially, aforamientos are justified as a safeguard of institutional independence. In practice they create two classes of litigant: those who answer to an ordinary judge, and those who can only be investigated and tried by higher courts whose members are, to a large extent, appointed with the involvement of the very political powers they are supposed to scrutinise.
The paradox is plain. Members of Parliament, senators, government ministers, regional legislators, judges and prosecutors —all three branches of the State— enjoy a procedural privilege that no other citizen has. It is a caste not of blood but of office; the effect, however, is much the same: the law no longer applies equally to all.
Castes did not vanish with the Empire: they simply traded blood for office and lineage for privilege.
When privilege shields business
Behind privilege there is almost always an economic interest. Our association has spent years denouncing worrying patterns: multi-million fines on large companies that are suspended or melt away in the courts, and reports of alleged offshore accounts linked to senior office-holders that no institution investigates of its own motion. When those who decide such matters cannot be tried like everyone else, the temptation of impunity multiplies.
European institutions have warned about this repeatedly. GRECO, the Council of Europe's anti-corruption body, devoted an entire evaluation round to preventing corruption among members of parliament, judges and prosecutors, and the European Commission's annual Rule of Law Reports keep stressing the need to strengthen judicial independence in Spain.
What we demand
- The abolition of every aforamiento not justified by a strict functional need, starting with those that shield judges and prosecutors from ordinary criminal proceedings.
- That judges fulfil the duty imposed on them by the Organic Law of the Constitutional Court and refer a question of unconstitutionality whenever a statute clashes with Section 14.
- Genuine, verifiable asset transparency for every office-holder who currently enjoys special jurisdiction.
No country can call itself democratic while it keeps first- and second-class citizens before its courts. Abolishing this new caste does not require a revolution, only political will and civic pressure. Join those of us who demand that equality before the law stop being a written promise and become an everyday reality.