Obeying the law is not optional. Yet many of our institutions behave as if their duties were mere options, to be exercised or ignored at will. Transparency rulings nobody enforces, watchdogs that take years to be born, judgments without reasons: when public service demands rigour, citizens get laxity instead. Is it legal ignorance, or a strategy of impunity?
Option, discretion and duty are not the same thing
Administrative law draws a clear line between three concepts that institutional practice confuses with suspicious regularity. An optional power allows the authority to choose whether or not to act. A discretionary power requires it to act, while leaving some room to decide how, always within the limits of legality, expediency and proportionality. A regulated power leaves no room at all: the law says what must be done and when.
Article 9.3 of the Spanish Constitution guarantees legality, legal certainty, accountability and the prohibition of arbitrary action by public authorities. These are not aspirations or recommendations: they are obligations. Administrative case law has repeated for decades that discretion is not arbitrariness and that every margin of decision remains subject to judicial review. Law 39/2015 also requires the administration to give an express decision on every application. When a public body fails to act by invoking a supposed freedom not to, it is not exercising discretion: it is committing an unlawful omission.
Transparency: rulings that stay on paper
Law 19/2013 on transparency, access to public information and good governance gave everyone the right to access public information and created the Council for Transparency and Good Governance to hear complaints against refusals. On paper, the system works. In practice, citizens who win a favourable ruling often discover that the administration simply does not comply.
Transparency councils lack effective coercive tools to enforce their decisions. The outcome is perverse: whoever wins the complaint must go to the administrative courts, with a lawyer, a court representative, time and the risk of costs, to obtain what the law already granted them. Many give up. And, once again, opacity comes free of charge.
Whistleblower protection: the authority that arrived late
Directive (EU) 2019/1937 required Member States to protect people reporting breaches of Union law by the end of 2021. Spain did not adopt its transposing act, Law 2/2023, until February 2023, and the Independent Whistleblower Protection Authority, the cornerstone of the system, did not have its statute approved until late 2024 and only began operating in September 2025.
Throughout those years, anyone who dared to report corruption did so without the safety net Europe required. There are many complaints from public employees, temporary staff and civil servants who, after flagging irregularities in public procurement, suffered alleged reprisals with no independent authority to turn to. No optional power justifies that delay: it was a legal and European obligation.
Giving reasons is not a favour: it is effective judicial protection
Laxity is not the exclusive preserve of the government and the administration. The Constitutional Court and the European Court of Human Rights require every judicial decision to be reasoned in a real, not merely apparent, way, especially when fundamental rights are at stake. Failing to explain why something is decided amounts, in practice, to a denial of justice.
Yet citizens frequently report worrying patterns:
- Summary rejections of habeas corpus applications without examining the merits, a practice the Constitutional Court itself has corrected on numerous occasions.
- Corruption complaints dismissed without assessing the evidence provided.
- Judgments that reproduce the administration's arguments without any critical examination of the file.
When this happens, the judiciary abdicates its oversight function and breaks the constitutional pact that conceives of it as a public service.
From rigour to misrule: ignorance or strategy?
It is hard to believe that, at this stage, our public authorities cannot tell the difference between a subjective right and a mere expectation, or between a duty and an option. The more plausible explanation lies elsewhere: the absence of consequences. Transparency rulings go unenforced, failure to execute final judgments is rarely punished effectively, and accountability for serious administrative omissions is seldom demanded.
When breaking the law costs nothing, opacity stops being a mistake and becomes a method of government.
Patronage, the partisan colonisation of oversight bodies and the absence of independent supervision explain this widespread laxity far better than any technical ignorance. Public office is too often treated as a corporate preserve rather than a service to citizens.
Demanding what is ours
The answer is to turn obligations into genuine obligations:
- Give transparency councils powers of enforcement and sanction.
- Guarantee real resources and autonomy to the whistleblower protection authority.
- Establish personal liability for failing to execute rulings and judgments.
- Make fearless use of the legal remedy against administrative inaction.
Rights that are not exercised are lost. Let us request information, complain, appeal and report: every case that forces an institution to obey the law is a small victory for the rule of law.
Further reading
- BOE – Law 19/2013 on transparency, access to public information and good governance (Spanish)
- BOE – Law 2/2023 on the protection of whistleblowers and the fight against corruption (Spanish)
- EUR-Lex – Directive (EU) 2019/1937 on the protection of whistleblowers
- Spanish Council for Transparency and Good Governance