Law of Impunity: Radiography of the proposal for an Organic Law of Amnesty for the institutional, political and social normalization in Catalonia

On November 13, the text of the Proposition of Organic Law on Amnesty for Institutional, Political and Social Normalization in Catalonia was announced, which, it seems, will support the parliamentary groups of PSOE, Sumar, ERC, Junts, PNV, Bildu and BNG, which have a narrow absolute majority of Congress. A text of particular importance which, all said, is proposed to be dealt with as a matter of urgency, thus shortening the time for its debate and amendment. In essence, we are facing a text negotiated with the “opacity of legal business”, alien “to the principle of advertising that has to characterize the parliamentary function”, as Professor Victor Vazquez has pointed out, which will now receive formal approval, at least by the lower house, which will be approved in the first place, where we will listen to mixed speeches, but with no greater vocation to submit it to a real debate. It is to be expected, on the other hand, the radical rejection of the Senate, where the PP enjoys a large majority, and will try to delay as much as possible the processing, showing a harmful parliamentary filibusterism. In any case, our unbalanced bicameralism in favor of Congress will make this chamber, sooner rather than later, the one that has the last word. Or, rather, the penultimate, because the law will surely be appealed to the Constitutional Court, although we can expect little from a Court that, in order to accommodate judges with high political profile, today has more features of a third political chamber than a court.

In my humble opinion, this law is premised on a fact that is difficult to accept in a constitutional state: That the general interest appreciated by Parliament, as the representative body of popular sovereignty, is imposed on the equal subjection of all to the law. That is, to the extent that the Constitution did not prohibit amnesties, Parliaments can, in a “sovereign act”, guarantee legal immunity, in short, the impunity of certain persons, attending to “exceptional political circumstances” in order to “overcome and channel political and social conflicts”.

To answer this question in the affirmative, as proposed by a majority of the Congress of Deputies, seems to me to dynamite an essential pillar of a constitutional state of law where the rule of law rules and opens the door to an exorbitant power of Parliament. So much so that, in my opinion, the aroma that permeates the explanatory statement of this Proposition of Law is precisely to place the general will above the rule of law, even when oddly great effort is devoted to affirming that this law strengthens the rule of law. In fact, it is revealing when it points out that the instruments of a rule of law cannot be “immovable”, since “it is the law that is at the service of society and not the contrary”, having to adapt the law to the context of each moment, especially when we encounter “a political decision adopted under the principle of justice”. Let us therefore abandon the solid idea of the rule of law as a guarantee for the benefit of a ductile law that is malleable by political will.

It is true that the constituent did not prohibit amnesty and that amnesty as a legal instrument that serves the extinction of criminal responsibility is not something new, there are historical examples and comparative law. But I believe that, in relation to the above, there is a fundamental error in the constitutional approximation of this law: Amnesty cannot be considered as an expression of legislative power without further ado, but is an “exceptional operation” (STC 147/1986). This was contemplated in the amendment presented in the Constituent Courts by the Mixed Group, signed by the constitutionalist Raul Morodo, where the power to amnestiate was recognized to the Parliament in a way differentiated from the legislative power.

We are, therefore, facing an exorbitant power that, to be fair, would require express constitutional authorization but, at least, requires a very strict constitutional analysis. Consequently, it is not worth trying to justify its constitutionality by resorting to the standard of analysis of the Constitutional Court developed for other types of laws, including singular laws, as is done in the explanatory statement seeking to give a certain legal disguise. Here the impact on equality and the separation of powers is much more intense and profound.

Even more, this amnesty is unprecedented in the European context. The only amnesties that have been granted in European Union countries since the 90’s are limited to processes to overcome armed conflicts in political transitions or decolonization. That was also the logic of our amnesty in 1977, the true covenant of reconciliation. By the way, it is striking that those who recently challenged that amnesty and tried to deactivate it through the Law of Democratic Memory, now are those who subscribe to the current bill. And the example cited in the explanatory statement of the recent Portuguese amnesty, in my opinion, is not appropriate because, in view of the small print, it is rather a general pardon, something prohibited by our Constitution. In fact, looking for comparative examples, given the approach of this law, what is most similar is the dishonest attempts to guarantee impunity that Berlusconi once promoted.

To top it off, the justifying appeal of the law to the “general interest” and its attempt to base it on the improvement of democratic coexistence is unsustainable when it is approved with almost half of the parliamentary arch radically against, with the mobilization of large social sectors and with the rejection of the practice of unanimity of associations of judges, prosecutors and other high public officials. Far from improving coexistence, what is going to be achieved is to transfer the fragmentation and conflict that had provoked the Catalan independent supporters at the national level. All this in the framework of an investiture negotiation. Because that, and no other, is the ultimate reason that justifies this law that would not otherwise have been adopted if it was not for the votes that President Sanchez needs for the investiture.

The scope of the law is also extremely broad: All acts carried out between January 2012 and November 2023 relating to pro-independence demands or consultations, including those of terrorism not yet punished. It extends not only to criminal responsibilities, but also to administrative, accounting and civil liability. This will lead to impunity not only for political leaders, but also for public officials who have prevaricated and embezzled money, and for groups of people who have provoked serious public disorder and attacks on authority.

Because, in order to understand this law, it is important not to forget what those years in Catalonia were, especially the helplessness of those who suffered the break of legality, felt insecurity and saw their civic life disturbed. As the King emphasized in his famous speech of 3-O, the insurgents who now seek to amnestiate “have broken the democratic principles of any rule of law and have undermined harmony and coexistence in Catalan society itself, arriving -unfortunately- to divide it. Today Catalan society is fractured and confronted… and with their irresponsible behaviour they can even put at risk the economic and social stability of Catalonia and of all of Spain.” Not a word, not a gesture has been asked of the independentist supporters to comfort these people. On the contrary, as they express in the Junts-PSOE investiture pact, they maintain the legitimacy of what happened then.

Similarly, a fair assessment of the story provided by this legislative initiative, which once again places the Constitutional Court as the source of the frustration of Catalan independence, with its consequent mobilization, requires remembering that our Constitutional Court, Much more generous than others in our environment, such as the German or the Italian, he offered in his resolutions a democratic way to channel the demands of independence: The reform of the Constitution. The Catalan parliament could have approved a proposal for constitutional reform with its aspirations for self-determination, although the independence leaders preferred the now amnestied rupture.

But above all, beyond the obvious injustice of this law, whose premises are unsustainable, its approval will set a very dangerous precedent for a democratic rule of law. The possibility of an amnesty has come to stay, as proof that the law itself reforms the Penal Code to recognize this instrument permanently, along with the pardon. So, from now on, that safe haven, which was to know that we are all subject to the same law, key to a democratic state of law, can be subject to storms and blizzards. What other political conflicts can justify another “sovereign act” of our Parliament to guarantee impunity?

This article was published on November 14, 2023 in Democrat