There is a general lack of knowledge in our institutions about the difference between the "optional" power: the option to act or not to act, versus the "discretionary" power: to ACT using criteria of opportunity (utility), legality and proportionality. That is to say, when Article 9.3 of our EC says "... legal certainty, responsibility and the prohibition of arbitrariness on the part of the public authorities." it refers to OBLIGATIONS. So why do demands for transparency continue to go unpunished before our transparency councils? Why if there is a Law 2/2023 on the protection of corruption whistleblowers in 2025 we still do not have the Whistleblower Protection Authority? we understand that at this point all our powers know how to differentiate between subjective and objective law, because if the service they provide to the Kingdom of Spain is a function of RIGOR what we get is LAXITY?
The confusion between optional and discretionary power
The Council of State and the Supreme Court have reiterated that discretion does not equate to arbitrariness, since discretionary power remains subject to the constitutional principles of Article 9.3 EC: legality, legal certainty, responsibility and prohibition of arbitrariness.
SC, 3rd Chamber, 6th Section, STS 661/2020, of 26 May: "Discretion is not synonymous with absolute freedom. It is limited by the principle of proportionality and the purposes of the public interest." However, when the Administrations stop acting by invoking optional powers to evade legal duties, such as answering requests for transparency or protecting whistleblowers, we are not dealing with a use of discretion, but an unlawful omission of public functions.
Transparency tips: resolutions that are not implemented
The inaction in the face of resolutions of the transparency councils is a practical example of this institutional laxity. This violates the direct effectiveness of the right of access to public information (Law 19/2013) and consolidates a culture of administrative impunity.
The resolutions of the Council for Transparency and Good Governance (CTBG) are binding, and failure to comply with them should lead to disciplinary liability, including criminal liability in extreme cases (art. 542 CP).
- In 2023, the CTBG upheld several claims for access to public procurement documents from the Ministry of the Interior. Despite the resolution, the documents were never delivered. The citizen must go to the contentious-administrative court, which implies time, resources and discouragement.
Law 2/2023 on Whistleblower Protection: Dead Paper Without Guarantor Authority
Despite the fact that Law 2/2023 entered into force on 13 March 2023, as of today (April 2025), the Government has not created or provided the Independent Authority for the Protection of Whistleblowers (AIPI) with resources, in contravention of the European mandate of Directive (EU) 2019/1937. This leaves those who denounce corruption unprotected, exposes their identities and discourages the exercise of an essential civic right.
- The union of tax inspectors denounced in 2024 that several of its members were internally repressed after warning about irregular contracts.
- At the municipal level, interim public employees who denounced fraud in contracting have been dismissed without effective protection.
Lack of judicial motivation: a laxity that erodes judicial protection
The jurisprudence of the ECtHR and the Constitutional Court requires that all judicial decisions be reasoned, especially when they affect fundamental rights. Not to motivate is to deny justice.
STC 122/2020, of 19 October: "The motivation cannot be apparent. It must state in a reasoned manner why a claim is upheld or rejected".
- Denials of habeas corpus without justification.
- Automatic files of corruption complaints without evaluating evidence.
- Judgments of the contentious that copy verbatim writings of the State Attorney's Office, without critical examination of the administrative file.
In these cases, the judiciary abdicates its function of controlling power and breaks the constitutional pact of justice as a public service.
From rigor to misgovernment: ignorance or strategy?
- The lack of sanctions for legal breaches is seen as an institutional anomaly:
- No transparency resolutions are executed.
- Failure to comply with final judgments is not punished.
- Those responsible for serious administrative omissions are not punished.
- This is not legal ignorance, but a strategy of opacity to protect networks of power, avoid accountability and discourage critical citizen participation.
Why do citizens receive laxity instead of rigor?
Because the public service is no longer conceived as a service to the citizen, but as a corporate space with an endogamous logic.
- Institutional clientelism, partisan colonization, and the absence of independent control are the main causes of this generalized "laxity."