Amnesty: A legal debate, but above all, a democratic one

There is an interesting legal debate about the constitutionality of amnesty. The first controversy revolves around the question of whether, in the abstract, in general, amnesties fit or not within the framework of the Spanish Constitution of 1978. As far as I know, it is not a clear question at all. The silence of the Constitution on amnesty – which only speaks of the prohibition of general pardons – and the absence of constitutional jurisprudence that has directly addressed this issue have led to legal opinions currently being opposed on this issue. In fact, it is possible to find arguments from important jurists that support its unconstitutionality: If general pardons are prohibited, amnesties, the implications of which are greater, will be prohibited. In other historical Spanish constitutions, such as the Constitution of 1869 or the Republican Constitution of 1931, amnesty was expressly included, but not in the Spanish Constitution of 1978. In other constitutions of our democratic environment, such as the French, Italian or Portuguese, amnesty is explicitly included, but not in the Spanish one; in the constituent process there were amendments that tried to incorporate amnesty into the Constitution, but were rejected. However, other prestigious jurists defend, also with solid arguments, its constitutionality: The silence regarding its prohibition is equivalent to its constitutionality, insofar as the democratic legislator has the legitimacy to promote laws in matters not expressly prohibited by the constituent; the amnesty would be, within the different forms of exercise of the prerogative of mercy, an institution qualitatively different from that of the pardon and, therefore, its lack of express prohibition is equivalent to its constitutionality. I am sorry to disappoint the reader, but I do not have a definitive opinion on this.

There is a second controversy that has to do with the constitutionality of a possible amnesty law in particular, that is, whether an amnesty law such as the one proposed (as the one announced) would be constitutional in relation to crimes related to the procés. In the absence of knowing the concrete content of this hypothetical amnesty law (both its preamble and its articulated), there is a majority legal consensus that understands that any amnesty law must be in conformity with the Constitution and, consequently, if appealed, the Constitutional Court is responsible for determining whether its specific content is compatible or not with the Constitution. In this case, it seems difficult for me that an amnesty law such as the one announced can overcome the test of constitutionality, because it is contrary to the principles of equality before the law and interdiction of the arbitrariness of public powers, as well as a violation of the right to effective judicial protection. How to justify the retroactive cancellation of criminal liabilities in relation to crimes linked to the procés and, on the contrary, not to do so in relation to any other crimes of disobedience to the authorities, public disorder or embezzlement of public funds committed in the same period of time in Spanish territory?

But the debate on amnesty is not only a legal debate – which it is – but, in my opinion, it is essentially and first of all a political debate. In other words, it is not a debate that should be restricted to jurists, but, in my opinion, it is a debate that challenges the whole of the public and, of course, also their parliamentary representatives. From a political point of view – and from here on I speak as a citizen – an amnesty such as the one proposed does not seem acceptable to me and, to justify my position, I will make arguments of a democratic nature.

First, amnesty was not included in the electoral program, nor was it defended in the electoral campaign, by the main parties at the state level that supposedly promoted the reform and that are essential for its approval (PSOE and Sumar). It seems to me that the right thing in democratic terms about an initiative of the importance of amnesty is that it be publicly defended before the citizens, especially during the electoral period. And not only has it not been done, but a good part of the institutional and organic representatives of the PSOE have been rejecting an amnesty until a few months before the elections, because it is, according to them, unconstitutional or unjust. The newspaper library, as it is well known, collects abundant examples in this sense. As far as I know, there has been no novelty or circumstance that justifies a change of position of the party, except, of course, that of needing the support of deputies of independence parties to complete a parliamentary majority that allows an investiture that keeps the party in government in this new legislature.

Secondly, the amnesty that is being considered is not counting on the first and third most voted political forces in the general elections held just three months ago, in July 2023, which total more than 11 million (approximately 45% of the votes cast). I find it especially unacceptable that it intends to carry out the approval of an amnesty without consensus with the PP, the most voted party at the national level in the last elections, the third most voted party in Catalonia (ahead of ERC and Junts) and what greater power it currently accumulates at the institutional level in autonomous communities and municipalities. Although the legal form for the approval of an amnesty is the organic law, that is, the absolute majority in Congress is sufficient for its approval, an amnesty such as the one announced must, in my opinion, have a broad consensus aimed at unanimity. In other words, for the approval of an amnesty law, the support of the main political forces in Catalonia, but also those of Spain as a whole, is required. This is a matter that should be the subject of a state pact. By the way, this was the case with the amnesty law of 1977, which was passed in Congress with 296 votes in favor, 2 against, 18 abstentions and 1 null vote.

Thirdly, an amnesty such as the one suggested implies, in my opinion, an unacceptable questioning of Spanish democracy and its institutions. It implies discrediting the institutions’ response to the challenge of the procés; it implies recognizing that their actions were to some extent illegitimate, unfair or arbitrary. The truth, however, is that Spanish democracy is in a good position in all the rankings on democratic quality in a comparative perspective (The Economist, V-Dem or Freedom House) and that the response of the institutions occurred, in general terms, in the case of democracy. in accordance with the provisions of the legal system, with respect for citizens fundamental rights and in a guaranteed manner. At the moment, there is no condemnation by the European Court of Human Rights. We are not faced with a context of transition to democracy, nor are we faced with a sort of peace agreement to bring about an armed conflict. A block amnesty for all the crimes committed during the procés would, in short, mean granting legal and institutional credibility to the story that has tried to delegitimize Spanish democracy inside and outside our borders and which has tried to project the image of an oppressive State.

Finally, I believe that amnesty is fruitless and, perhaps, counterproductive. It is unsuccessful because some of the beneficiaries of the measure have not renounced unilateralism or, therefore, the potential repetition of criminal behaviour, so that amnesty would not contribute to the good that is said to be pursued: Improving political coexistence and seeking social peace. And counterproductive because there is a risk that a formula that aims to restate the political fracture in Catalonia can cause, on the contrary, a relevant tear in a Spanish society already too polarized.

Article originally published in Spanish