Such is the uneasiness aroused by the potential amnesty, that I prefer to think that it will not be for so much or rather, that it would not be for so much if those who negotiate this matter in the name of the socialist party are guided by the prudence recommended by Don Mendo in the famous comedy of Muñoz Seca, to those who are getting ready to participate in games of cards -but that could be applied metaphorically to any negotiation- to warn of the risk of extreme the bet, because if “not arriving gives pain”, “woe to you if you pass! if you pass it is worse!”
And the crux of the matter, in my view, is not in amnesty, but in amnesty. For amnesty has been so recurrent in our history that we should not be surprised that it now intends to turn to it, nor should its healing power be relied upon much. Salvador de Madariaga wrote that Spain is the country of amnesties and it is enough to enumerate the years in which these were granted, from the beginning of our constitutionalism, to justify his opinion: 1837, 1840, 1846, 1854, 1856, 1860, 1869, 1870, 1871, 1873, 1890, 1906, 1914, 1916, 1918, 1930, 1931, 1934, 1936. And yet we should add Franco’s self-amnesty in 1939, for himself and his supporters, Under the euphemistic title of Law “Considering certain acts of political and social action committed from April 14, one thousand nine hundred and thirty-one to July 18, one thousand nine hundred and thirty-six”, and also, finally, the most recent amnesties and that matter most to us, those that opened the way for our transition to democracy: The Royal Decree Law of July 30, 1976 and the Amnesty Law of October 15, 1977. There have been amnesties with monarchies, with republics and under governments of all political signs, as evidenced by the relationship of the statesmen who endorsed them, among others: Espartero (that is, the Prince of Vergara), Isturiz, Narvaez, O’Donnell, Serrano, Prim, Ruiz Zorrilla, Eduardo Dato, Romanones, Antonio Maura, Damaso Berenguer, Alcala Zamora, Salvador de Madariaga, Manuel Azana, Adolfo Suarez and Antonio Hernandez Gil. A cynic could conclude that in Spain to honor the memory of a statesman, dedicating the name of a street to him, it is necessary to have endorsed an amnesty. But that would imply admitting that amnesties are in themselves valuable, when they are only eventually valuable because of their function, that is, if they serve as a remedy or therapy to heal the divisive consequences of civil wars, dictatorships, pronouncements, coups d’état, revolutionary strikes or secessionist attempts. In fact, the frequent use of amnesty in Spain reveals both its relative effectiveness and the endemic nature of the problems faced by our constitutionalism, problems that, despite the great advances achieved in all levels (social, economic, technological), have not been completely removed until today, as evidenced by the frustrated coup d’état of February 1981 and with the threat of proclamation of the Catalan republic by the pro-independence forces in October 2017.
As a result, here again, back with amnesty. The question then is whether it can and should be granted and, above all, what amnesty, with what limits and conditions. As for the first thing, although there is doctrinal controversy in this regard, it seems to me that amnesty being such a fundamental and recurrent episode in our history, if the constituent had wanted to prohibit it he would have done so expressly – as he prohibited the general pardons-. But in the constituent debate nobody proposed it. There were only two amendments on this issue, tabled in Congress: One by the Joint Group and one by a UCD Member, proposing that amnesty be reserved for Parliament. These amendments could make sense – because in our historical experience many amnesties were granted by decree – but they were not incorporated into the text of the Opinion of the Committee on Constitutional Affairs of the Congress. From this omission, however, it is not apparent that amnesty can now be decreed, in the manner of pardons being decreed by the Government, under the protection of the King’s power to “exercise the prerogative of mercy in accordance with the law” (art. 62 i EC), because, since amnesty means an exception to liability for criminal or administrative offenses, it must be concluded, by reason of the principle of legality of the sanctioning right (art. 25 i CE), which is not possible to amnestiate “in accordance with the law”, but directly by law, by law, which must also be organic in the event that conduct involving custodial sentences is contemplated. And amnesty will in any case be limited by the Constitution. Thus, the Constitutional Court has already declared in 1986 that it violates the legal certainty that the actions in the field of labor amnesty are qualified as imprescriptible; And also, in 1987, that the amnesty is discriminatory if it treats without justification in a different way to certain professional categories (in that case, the military who entered the Aviation Weapon of the Republic after July 18, 1936). In addition, amnesty must respect the principle of interdiction of the arbitrariness of public authorities (art. 9.3 EC), because it also binds the legislative. This implies that the amnesty must be justified (and it certainly does not seem sufficient reason that it has been claimed by any of the forces that make up the parliamentary majority in an investiture). Because, with our Constitution, power can no longer move in the realm of pure decisionism.
This problem of justifying amnesty, in my opinion, could not be addressed only, as some seem to believe, with what the explanatory statement of the law said, but also refers to its content, its wording. Consequently, I believe that to justify amnesty, we should seek inspiration from the first ones approved by the liberal state in the early nineteenth century – bridging the gap between the legal culture of that time and ours – because they were limited amnesties (very different from other later ones of such a generic nature, such as that of February 1936, which declared with laconism that “amnesty is granted to those sentenced and charged for political and social crimes”, without any other limitation). And also, because those amnesties (for example those of 1840 and 1846), after the first Carlist war, were conditional on their beneficiaries swearing allegiance to the Queen and the Constitution. That is to say, they were endowed with a certain contractual character, already present in the Vergara Convention. And although demanding such an oath would be unthinkable today, because our constitutional regime – as the Constitutional Court has declared – is not that of a militant democracy that demands adherence to its principles, It seems, however, indispensable that the benefits of any amnesty to those involved in the secession of 2017 be conditioned on them renouncing before the judicial authorities to try again to obtain independence unilaterally and in violation of the law. It would not be a question of asking for forgiveness or renouncing their independence ideas, but of committing themselves not to try to impose them against the Constitution. And that commitment, in my opinion, should also be a resolutory condition of amnesty, so that if anyone did not comply, he would lose the benefits of it. An unconditional amnesty would not only be difficult to justify – no matter how much the purpose of promoting coexistence is invoked, given that in reality there is already coexistence in Catalonia, although it should be more relaxed – but it would also run the risk of being ineffective. It is worth remembering in this regard what Alcala Zamora wrote: “Amnesties, alternately claimed or imposed, as alternatively one uses force, on the one hand and the other, do not mean the consolidation of spiritual peace, as in other parts, and yes the emboldening that announces new revolts. It frees and glorifies the warlords, with hopes or assurances, who forge the future conspiracy.” And since the signing of Alcala Zamora was dictated no less than three amnesties, there is no doubt that he knew what he was talking about when formulating this retrospective judgment so critical, and it is advisable to take into account his opinion.