Teresa Freixes reviews the legal figures that guarantee active opposition to the illegitimate exercise of power
Teresa Freixes, professor of Constitutional Law at the Autonomous University of Barcelona, full academician and general secretary of the Royal European Academy of Doctors-Barcelona 1914 (RAED), presented in the 2nd Interdisciplinary Congress of the RAED, which was held on 15-17 February at the Spa Hotel Vichy Catalán, in Caldes de Malavella (Girona), the paper “Derecho a la resistencia, disidencia y democracia” (Right to resistance, dissidence and democracy), where she reviewed the historical and current legal figures that guarantee these rights.
“In contemporary constitutionalism, the right to resistance is reflected in various texts: the United States Constitution (1787), which proclaiming the right to life, liberty, and the pursuit of happiness, also states that if the ruler denies that right, the people are entitled to institute a new government that guarantees it.” -explained the academician in her speech of presentation-. The French Declaration of the Rights of Man and the Citizen likewise establishes that if the government violates the rights of citizens, insurrection becomes a sacred duty to restore them. And Germany is one such example. In 1968, the Basic Law of Bonn adopted the words ‘all Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available’. Germans were very aware of what had become of the Weimar Constitution during the period of National Socialism. The Constitution of Portugal also established, in response to the country’s then-recent past, that ‘everyone shall possess the right to resist any order that infringes their rights, freedoms or guarantees and, when it is not possible to resort to the public authorities, to use force to repel any aggression”.
Dr. Teresa Freixes
For Freixes, this recognition has its explanation in the contrast between legitimacy of origin and legitimacy of exercise. “In any democracy, the authority created in accordance with established procedures has legitimacy as its origin. Once in place, authority should be practised subject to previous, democratically established laws. If this is not the case, even authority that has the legitimacy of origin loses it due to action or omission. It is then outside the law, as it does not enjoy the legitimacy of exercise”, she argued. “It isn’t necessary for this recognition to have constitutional status; this status can be legal as, for example, in the provisions of Spain’s Basic Statute governing public officials”, continued her reflection.
Regarding the right to dissent, the right to public and formal expression of disagreement, Freixes argued that “it is necessary to guarantee freedom of expression because dissidence can represent a kind of warning about possible violations of the constitutional order”. Although she warned that dissent has a price: “Dissidence therefore has a price. Exercising it entails having to pay for it, sometimes at very great cost. We are thus faced with a paradox: the legitimate exercise of a right that warns, points out, demonstrates and provides evidence of violations of constitutionally established rights, by revealing unlawful attacks on the constitutional order, leads to the dissidents concerned being relegated to ostracism and discredited professionally, using all kinds of cover and subterfuge aimed at eliminating their public presence or social influence”, she concluded.
