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

The original sin

Finally after several weeks has reached the agonizing agreement of Junts and the PSOE for the investiture of Pedro Sanchez and, as was foreseeable, the result can not be worse from the point of view of social and democratic state of law, as we have known it so far, that is, of which proclaims art. 1.1 of the Constitution of 1978. And the first thing to say is that it is an agreement that was not contemplated as predictable or as possible by the vast majority of Spanish citizens, that immense majority that now reads it or with indignation or with great concern, including many PSOE voters.  That is their original sin and no argumentative, however sophisticated, it can fix it not even by incurring dialectical traps and logical inconsistencies that produce blush and that in the end are reduced to the very simple axiom that the end justifies the means and that anything is worth to prevent a government with the far right.

The truth is that this unprecedented way of forcing the institutional seams of our country, assuming not only the individual demands of a person who, today, is still a fugitive from the Spanish Justice but, above all, assuming the political and mental framework that underpin them, it is completely unnecessary. It is enough to admit something as simple as that, in a democracy, not everything is valid to achieve power. An agreement in which what is given in exchange for the votes of a very minority party are pieces of the rule of law either in the form of impunity for politicians, of the recognition of the existence of “lawfare”, that is, judicial persecution for political reasons, articulation of extra-parliamentary mechanisms of negotiation, fiscal privileges and renunciation of territorial redistribution for the benefit of the richest territories of Spain,  admission as realities of those of nationalistic myths of the nineteenth century around language and the possibility of constitutional reforms through the back door since we do not have enough majorities for a constitutional reform.

In short, this set of legal-political absurdities will only serve to worsen coexistence and the degradation of the standards of our democracy. For everyone. Because once a majority party understands that the rule of law is negotiable to stay in power, what prevents others from doing the same? On the contrary, it is greatly facilitated: The attrition has already been assumed by the former and they will always be able to invoke in their defense that others did before.

In this sense, I fear that we have begun a path that leads us quickly in the direction of other illiberal democracies in which the party or the hegemonic coalition considers law to be just another formal tool to achieve its ends, and that the institutions belong to those who have the majority even for very little and that the important thing, in the end, is the ability to impose an agenda of their own, whether conservative, progressive or otherwise. In reality, this was already the reality in Catalonia with successive pro-independence governments. Now, this way of doing politics extends to the central government. It is a conception profoundly contrary to the essence of a representative liberal democracy, which seeks not only to impose counterweights on power to prevent the tyranny of majorities but also of minorities to safeguard the freedom and rights of all citizens alike, of those who vote for the government in turn and of those who do not.

In short, these deals have already opened the door to a very dangerous path, in which others can do the same if they also need it to govern. Spain is a very decentralized country, and the CAAs of a political sign different from the government and even more if they lose confidence that the rules of the game are the same for everyone, they can also play ignoring them, emptying them of content or directly disobeying them.  As has happened in Catalonia. This being very questionable, it is difficult to have any legitimacy to claim its compliance for those who have accepted it for reasons of parliamentary arithmetic. The only ones who will be able to do so with a minimum of moral authority are the Spanish citizens and particularly those who are in the public sphere as long as we continue to defend the democratic rule of law and the rules of the game, especially when their violation favors us, which is when it is most difficult. I have confidence that it will be so and that once again Spanish society, as at other times before, will be up to the task even if its representatives are not.

Article published in the newspaper El Mundo.

Amnesty with subsequent condition

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.

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

The word of law support those who democratically and peacefully take to the streets against amnesty

The announced amnesty law, which will have a euphemistic name, will be orphaned of relevant legal reports, such as those of the Council of State and the General Council of the Judiciary. Why should it be?  Even, according to information from Ketty Garat “the legal services of the State have been guided by the Government in the performance of its powers in relation to the elaboration of the legal framework of the future amnesty law. Why? Government sources consulted by The Objective reveal three reasons. The first: Avoid leaks; The second and related to the above, that in the State Attorney’s Office “they are not trustworthy”, as evidenced by their position prior to the granting of pardons to those sentenced by the 1-O, avoiding expressing an opinion in favor of the relevance of the measure of grace”. In fact, we witness the ridicule that one part of the government has summoned its own team of external jurists who have already drafted its opinion (which the other part of the government says does not do so); And to such lies as the Constitutional Court has ruled on the viability of amnesty on no less than twenty-two (22) occasions, this issue has been dismantled by Quintero Olivares, Professor of Criminal Law and Ollero Tassara, Professor of Philosophy of Law and former judge of the Constitutional Court.

And as we are immersed in these lies, we may hear things like “sources close to Von der Leyen have stated that the president of the Commission is eager for Sanchez to be invested so that the amnesty desired by all is approved as soon as possible and that he is already working on the referendum”. What we do know is that the commissioner for Justice, Mr. Reynders, has declared in the European Parliament that he needs a formal document in order to be able to assess it, especially in relation to the crime of embezzlement, that is, the money that the coup plotters detracted from the public funds to finance the coup, that these things in Europe are seen with bad eyes.

According to rumours, one of the “fundamental” aspects on which the drafters of the law are focusing is in the story, that is, its preamble or explanatory statement, which will try to convince the unwary of the goodness of this legal spawn. But the explanatory statement will be a decoy, a real cock-and-bull story, because it is known by all that this law is drafter, exclusively, to satisfy the desire for power of a candidate for the presidency of the Government and thus achieve his investiture, with the indispensable placet of the fugitive Puigdemont. In the words of Teresa Freixes, Professor of Constitutional Law: “The only justification for amnesty is seven votes in favor of an investiture”. And, among many others, this was also expressed by the former State Attorney General, Hernandez“The only reason for the amnesty is to obtain Puigdemont’s votes to invest Sanchez.” And to conclude and not to be bored with further quotations on this great and irrefutable truth, we must quote the eloquent words of Juan Luis Cebrian, the first and most important editor of the newspaper El Pais: An amnesty by pleading a fugitive offender for the sole purpose of fulfilling the personal aspirations of a defeated at the ballot box would be a renunciation of the ethical and democratic values of socialism.” This is the true and tight explanatory statement.

The true story consists of explaining what happened in Spain (a democratic country of the European Union) in 2017 and that had been preparing for years before in Catalonia, because the rule is aimed at favoring a group of people who committed serious crimes (and that they have declared that they will do it again), consisting of a real coup d’état, trying to alter the constitutional order. All facts that are detailed both in the criminal convictions of our Supreme Court and in the judgments of the Constitutional Court, which will have to prosecute the unconstitutionality of a law that seeks to erase such facts and evidence that Spain is an oppressive country, not democratic and lacking in freedoms.

In its judgment of November 8, 2017, annulling the Declaration of Independence of Catalonia, the Constitutional Court (TC) affirmed that the action of the Parliament constitutes a “serious attack” against the rule of law and violates “with equal intensity, the democratic principle”. On this point, the Court recalls once again that “in the constitutional state, the democratic principle cannot be disconnected from the unconditional primacy of the Constitution.”

For the Constitutional Court, the succession of events, since STC 259/2015 annulled Resolution 1/XI of 9 November 2015 of the Parliament of Catalonia as unconstitutional, “they show the inadmissible claim of a part of the Autonomous Parliament to not respect ‘the constitutional order that sustains its own authority’ and to fail to comply with the resolutions of the Constitutional Court, obviating that it is the Autonomous Parliament itself that must ensure that its action is developed within the framework of the Constitution.”

Given the stubborn offense to the rule of law by the political institutions of Catalonia, in its judgment of 8 May 2018, the Constitutional Court, before a decision of the Bureau of the Parliament of Catalonia, in the field of the procés, which constitutes a manifest breach of what was decided by the Constitutional Court, it states that all public authorities, including legislative chambers, are obliged to what this court decides (article 87.1 of the LOTC). Therefore, the evident breach of this duty is what determines that the Bureau of the Parliament, in admitting the proposal, incurs the aforementioned constitutional violations, not the material content of the initiative, underlines the judgment. Therefore, what is decisive for this purpose is that the Bureau processes the initiative knowing that there is a decision of this Court that prevents it from taking action. The Plenary of the Constitutional Court considers that in the present case there are exceptional circumstances to appreciate that said organ of the Parliament failed to comply with the duty to respect the suspension declared by two rulings of September 7, 2017 of the effectiveness of the Law of Referendum of Self-Determination and that of the Decree calling that referendum. The Constitutional Court concludes that violation of this fundamental right determines, in effect, the violation of the rights of the citizens of Catalonia to participate, through political representation, in public affairs (art. 23.1 CE) and affects the proper function of the Parliament of Catalonia, which holds the representation of the people of Catalonia (art. 55.1 EAC) and not that of certain political forces, even if they are majority.

Well, as the Constitutional Court said, the disengagement laws and the declaration of independence put “at maximum risk, for all citizens of Catalonia, the validity and effectiveness of all guarantees and rights preserved for them both the Constitution and the Statute itself. They were left at the mercy of a power that claims not to recognize any limit.”

A documented account of the “coup d’état” is found in the article by Vidal-Folch and Fabra“The coup against the institutions” (https://politica.elpais.com/politica/2018/02/17/actualidad/1518895924_749358.html )who then argued that “the Catalan secessionist ‘procés’ has eroded the basis of democracy: The laws, the bodies representing sovereignty and the courts, which decide on legality… The main institution of a modern society is its democratic legality. That is exactly what was subjected to the parliamentary coup of September 6, 7 and 8 through the laws of “disconnection” or rupture that abrogated the validity of the Statute, the Constitution and the entire legal acquis of the Catalan and Spanish democratic order.”

As the editors of Hay Derecho have recalled, “In the face of such a serious attack on our democracy, the institutions defended the constitutional order as it corresponds in a rule of law: The Constitutional Court nullified the laws of rupture; 155 article was applied as a mechanism constitutionally foreseen for federal coercion to react to legal breaches and serious attacks against the general interest by Autonomous Communities; and criminal proceedings were initiated against the leaders of the tumultuous movements who were judged and sentenced for serious crimes after corresponding judicial process was held with all the guarantees.

We remember this now because, six years after those events, its main leaders, especially Mr. Puigdemont, a fugitive from Spanish justice since then, demand an amnesty as a condition to support the investiture of President Pedro Sanchez.

A claim that from there is right we consider should not be assumed in any case. On the one hand, there seem to be solid technical arguments to defend the unconstitutionality of an amnesty of these characteristics in accordance with our current constitutional framework…”

It is also being recalled in the press that the Government presided over by Mr Sanchez and being Minister of Justice the current judge of the Constitutional Court, Mr Campo, left written on official paper that amnesty is unconstitutional (“Persistence that in case of criminal repetition would lead to the assessment of the criminal record. Unlike the clearly unconstitutional amnesty, which is demanded by some pro-independence sectors, the pardon does not make the crime disappear”). Having also opined on the unconstitutionality of the amnesty, in 2021, the legal services of the Congress of Deputies, when ruling on a proposal of organic law that was finally inadmissible to process: “… The proposal for a law of reference seems to enter into a blatant and obvious contradiction with the provisions of Article 62(i) of the Constitution.”

Well, a multitude of illustrious and solvent jurists, most of them professors and professors of the University, former judges of the Constitutional Court and the Supreme Court, members of the Fiscal Ministry and the State Attorney’s Office (among others, Aragon Reyes, Bal, Conde Martin de Hijas, Cruz Villalon, Fernandes Romero, etc.). Freixes Sanjuan, Gimbernat, Quintero Olivares, Recuerda Girela, Ruiz Robledo, Silva Sanchez, Tapia, Tejadura Tejada Viada Bardaji) has been expressing, in recent months and in the media, solvent and well-founded legal opinions which conclude that, regardless of nomen iuris“it is called amnesty or another term to disguise it is sought at the end” the law is contrary to Articles 1 (Rule of Law), 9.1 (Subjection of public authorities to the Constitution and the rest of the legal system), 9.3 (legal certainty), 14 (equality of all Spaniards), 62.i (prohibition of general pardons) and 117 (independence and judicial exclusivity), of the Spanish Constitution. This without ruling out the possible and desirable intervention of the European Union, for violation of the rule of law established in Article 2 of the Treaty on European Union, as has already been denounced to the European Commission by the Association of Prosecutors.

The words spoken on 7 October 2023 by Jesus Maria Barrientos, President of the Superior Court of Justice of Catalonia, in the opening act of the judicial year, must necessarily be taken into account: ‘The law, either is general or is not law. The laws are approved, can be reformed and also repealed by those who only have the authority to do so, the Legislative Power. But during its validity, the laws equally oblige all those who are in Spanish territory, including the judges… No one can place themselves above it, or try to avoid the consequences of its violation”The Constitution “attributes exclusively to the judges who are members of the Judiciary the power to judge and execute the trial”, “None of the other powers, outside the legal channels, can interfere in the effective fulfilment of this constitutionally recognized power. Any attempt to interfere in its effective exercise is neither legitimate nor democratic.”

Amnesty, something remains

There is a phrase from the writer Mark Twain that seems to me clairvoyant: “History does not repeat itself, but rhymes.” Nor is bad the classic “nihil novum sub sole”. Even the amnesty has already happened. In 1936, the Popular Front, in which nationalists, socialists and communists joined, granted it to those condemned after the events of 1934, which included the socialist revolution of Asturias and the micro-declaration of independence of Catalonia “within the Spanish Federal Republic”. That day, according to official figures, about 30,000 prisoners, about 3,000 politicians and about 27,000 common prisoners came out. Among them was the deposed president of the Generalitat Lluis Companys, who soon regained his position. And soon there was also a bloody Civil War that lasted for three years.

But, as I say, history does not repeat itself. In 1936 the circumstances were different. The almost non-existence of a moderate middle class and extreme social differences made it difficult to find reasonable solutions. The imprisonment of many people who were not the ringleaders of the revolutionary operations created a widespread social problem that the left flag. The right also had much to hide because it used, to free those responsible for the Sanjurjada of 1932, the route of amnesty, on the other hand contemplated in the Constitution of 1931, if agreed by Parliament, even if it prohibited the “general pardons”. The application of military regulations to these crimes made it very difficult to find more nuanced solutions. The Popular Front had already announced in its program that one of its objectives was amnesty and there was mobilization in the streets and revolts in the prisons. And in fact, it was approved by the Permanent Deputation unanimously, even with the votes in favor of the CEDA. A complicated situation that obviously had little to do with the amnesties of 1931 and 1977, which responded to a change of political regime from an authoritarian to a democratic one.

Now, although it is not repeated, history rhymes. Between past and current events, similar waves, reasonable coherences or parallel rhythms can be found, because similar incentives underlie. The bad thing is that, as Karl Marx said at the beginning of Louis Bonaparte’s Eighteenth Brumary, history occurs twice: The first time as tragedy and the second as farce. And a farce is precisely what is happening in 2023. All the drama that involved the situation in 1936 is now posthumous and dissimulation. There are no imprisoned workers or social divisions that need to be remedied, and not even the Catalan problem, which has already pardoned its leaders, will improve since they have said they will “do it again”: it only counts on the need to get the vote of a few members who could have been others but, what a coincidence, they are precisely those.

And to achieve this, it seems that they will be given what they ask for and will try that the rest of the nation accept the fallacious arguments with which the drink will be seasoned – already being done – and that, as it cannot be otherwise, they will be seasoned with cynical allusions to the general interest of the state which, as incredible as it may seem, many will believe, even a small part of them in good faith. The enormous propagandistic capacity of the states of the 21st century, endowed with tentacles in the media and entangled in many cross-interests, makes it relatively easy to convince those who want to be convinced (all those who would like or would like to be invited to the candidate). That the amnesty is not a felony committed against Spain to maintain power but a healthy show of clemency, a civic act of compromise aimed at promoting social peace that, on the other hand, is not really opposed to any law, because they will be able to find precedents and analogies even to justify Abel’s death at the hands of Cain. And there will be no shortage of “complacent jurists” or “pleasing journalists” who will find a way for the long-suffering socialist voter to commune with mill wheels with hardly any oral abrasions, although, unlike in 1936, amnesty was not on the electoral agenda and was even rejected in public statements and pardons reports as “clearly unconstitutional.” That is why this farce amnesty is somehow more damaging than the dramatic one of 1936 because, in the absence of deep reasons, the frivolity of its outcome will have long-term consequences, in which they will flourish, and will be more damaging. as the definition of farce says, “the ridiculous and grotesque aspects of certain human behaviors.”

On the one hand, it will wear down the institutions: The judiciary, which will turn out to have wrongly sentenced, condemning for crimes that should not have existed; the legislature, which will be unable to deliberate and vote in a way other than the ruling party’s dictation; The police forces, which will be unauthorized, and to a great extent if the Aragonés request is heeded that they not be amnistied; the Constitutional Court, which if it validates the amnesty, will remain as one more partisan organ and if it does not, its effort will be inoperative because, As the constitutionalist Alicia Gil said in a debate of the Hay Derecho Foundation, in accordance with Article 40.1 of the Organic Law of the Constitutional Court, the declaration of unconstitutionality of an amnesty already approved would not allow to review processes already expired, with which such a declaration would be a simple warning to be irreversible amnesty. In addition, it will be the opening of the door for those who come later to do so and it must not be excluded that the difficulty of making an adequate definition of the amnestiable crimes will lead to a new fiasco of the type of law If it is Yes, in which uncounted individuals would go out, especially if you want to make ball-fitting to include some yes and others not.

On the other hand, this frivolity and injustice will generate ethical blurring in society by receiving the message that anything is possible, in a generalized environment of non-compliance. And that environment will prepare the most difficult of the referendum or of what it touches, which will be increasingly intractable because the strength of the government will be less and less. A moral and democratic decline, in short.

We must denounce it and try to prevent it. Now, unlike in 1936, not those who ask for it, but those who are against amnesty, are mobilized and manifested. Maybe it’s not all lost.

This article was published in VozPopuli on October 11, 2023.

Amnesty within the framework of the European Union

One might think that the European Union has nothing to say about the potential Pedro Sanchez investiture deal in exchange for an amnesty to obtain the necessary votes of Junts, Puigdemont’s party, whose personal situation can be complicated (even more) when he finishes his term as a European parliamentarian. However, I am not so sure that this will be the case. Is the situation of the rule of law in each Member State a strictly national problem? If the rule of law is at risk in one or more countries, what is at risk is the European Union itself.

In this regard, there are some considerations that are relevant. This was assumed, namely that the Member States would respect the fundamental values of freedom, democracy, equality, the rule of law and human rights set out in art. 2 of the Treaty on European Union is no longer guaranteed. If we think that these values constitute their DNA, there must be mechanisms that allow the Union to react when they are breached. We count first with art. 7 of the Treaty (which probably no one thought would have to apply one day) which is a kind of “closing clause” of the system in cases of special gravity. That rule allows proceedings against a Member State to be initiated where there is a clear risk of serious infringement of one of the Union’s fundamental values and may end with a suspension of voting rights.

The European Commission has already activated the procedure of art. 7 In 2014 against Poland, on the grounds that its reforms in the field of the judiciary violated the rule of law, and also against Hungary, in addition to this reason for violation of other fundamental values set out in Article 2.  Because all the rights recognized by the European legal system can become a piece of paper if there are no independent, professional and unmovable courts that can apply it. They are enormously complex procedures that present many singularities, but we cannot take for granted that a “obedient student”, as Spain has been so far, cannot become one of the worst through a process of constant institutional deterioration, that can accelerate very quickly when political necessity becomes acute as we are seeing.

In addition, the Commission has other legal options: It may initiate infringement proceedings to force the State to change its rules for breach of the rule of law. This type of procedure can be initiated by the Commission ex officio or by virtue of a complaint, and the final decision will be legally binding on the State, provided that the High Court of Justice of the European Union confirms it (which it usually does). Finally, European funds are subject to conditionality in compliance with the values of the rule of law, and funds may be withdrawn whenever such violation is considered to exist. There are already precedents.

Despite this, there are European States that challenge these values in general and the rule of law in particular. It is true that until now these states, most notably Hungary and Poland, have been governed by right-wing parties with a clearly anti-European and non liberal discourse. But is it so unthinkable that a left-wing government could find itself in a similar situation? Is something like a “Left Orban” possible? The example of Slovak Prime Minister Robert Fico suggests what can happen.

Of course, it is not pleasant to recognize that Spain may be subject to a warning or even legal proceedings for infringement of the values of the rule of law, but we are not as far from that possibility as we would like to think. The situation of blockage and lack of renewal and reform of the governing body of judges in Spain, the General Council of the Judiciary (CGPJ) -situation denounced in the successive reports on the rule of law of the European Commission- and the attacks on the separation of powers that their politicization implies have already been highlighted by Polish politicians as a sign of a supposed “double standard” since according to them the Commission would be more tolerant of left-wing and European governments. According to these criticisms, the situation regarding the attempts of control of the judiciary by politicians through the appointments of the highest magistrates is not so different in Spain and Poland.

In any case, and without the intention of entering into that debate now, let us remember that the attempt to reform the law so that the members of the CGPJ were elected by an absolute majority and not by three quarters of the Congress and the Senate (precisely to avoid the current blockade) He was advised against the European Union because he rightly considered that, far from making progress in the depoliticization of the organ, he was deepening his politicization. Recently, the European Union’s Justice commissioner reiterated his warning about the possibility of initiating infringement proceedings for this reason. In short, the European Commission closely monitors the reforms that states carry out at national level whenever they can put European values at risk. Any systemic breach of these principles and in particular if affecting the separation of powers can be deemed to put the rule of law at risk within the European Union.

Can we stand before one of these cases in this case? An amnesty that is being negotiated in exchange for the government an the presidency? At the very least, there is reason to think that the European Union should pay attention to such deals, as it has already done in the past with problematic amnesties, Like the one that was tried to approve in Romania to avoid the criminal responsibilities of the main leader of the ruling party for cases of corruption.

The official argument tries to convince us that a measure such as an amnesty, which lacks any justification other than the pure electoral arithmetic (and that was not submitted to any public debate in the electoral campaign), will suppose a “erase and new account”, A new stage to facilitate coexistence between Catalonia and Spain – it is never recognized that the fracture is within Catalonia – and a measure to facilitate peace, pluralism, diversity and tolerance for many years. But to dynamite it there are the independentists, not to mention common sense and logic itself. So many benefits were not clearly perceived until election night: It is logical that many socialist voters feel deceived for the simple reason that they were. Just four months ago they were told exactly the opposite, that amnesty would never be given under these conditions.

But most relevant to the effects of the values of the European Union, we are facing an amnesty that the independentists do not see as an end point, but as a starting point for their secessionist movement, which demands, inevitably, to violate the democratic rule of law, for the simple reason that they cannot access their objectives respecting the constitutional rules of the game because they lack sufficient majorities. That is why it is essential that these rules be dismantled from within, or at least cease to apply in the cases that interest them, guaranteeing them impunity. Therefore, if the PSOE for short-term reasons offers to do the dirty work by turning the Constitution into a formal shell -and by the way, laminating the electoral possibilities of the PSC, today the leading party of constitutionalism in Catalonia-, I do not think they reject it. It should also be done by a party whose sense of state since the transition has largely depended on the stability of Spanish democracy itself (remember the abstention to facilitate an investiture of the PP to avoid third elections or support for the application of art. 155 Governing Mariano Rajoy) should give them special satisfaction.

In short, an amnesty under these conditions is a triumph for the separatists and a disaster for the democratic rule of law, whichever way you look at it. It delegitimizes the institutional and legal response that the Spanish State gave at the time, the international strategy to highlight the true anti-democratic and illiberal character of the ‘procés’ (perfectly reflected in the laws of the Parliament of Catalonia of Disconnection and the Referendum, On September 6 and 7, 2017), it compromises the separation of powers, the principle of equality before the law and calls into question until the speech of the King in defense of the Spanish Constitution on October 3, 2017. There is no one to give more in exchange for nothing.

The European Union should certainly take note.

Amnesty, dissension and rigor

On many occasions politics marks the time of the legal debate, and this case will not be different. In recent weeks, we have learned of the Government’s willingness to pass an Amnesty Law by the legislator, which would mean the extinction of the criminal responsibility of those who were accused and accused in Special Case 20907/2017 before the Second Chamber of the Supreme Court and, who knows, of someone else investigated in the criminal cases of the misnamed “Procés”. We do not yet know the personal scope of the intended rule of grace, but it can be guessed.

I will not and should not refer to the political side, it is evident that we all have the right to support and defend our own ideology and not to manifest it, as established in Article 16 of the Spanish Constitution (EC), but it is not the purpose of this article. Its purpose lies in the need for jurists to fight legal arguments of dubious solidity that are multiplying everywhere in favor of this amnesty. I am referring, of course, to the text published by the Spanish newspaper El Pais on October 5 of this year, authored by Xavier Vidal-Folch.

I agree with Mr Vidal-Folch on something. The final word on the adequacy of the future Amnesty Law to the Constitution corresponds to the Constitutional Court, in accordance with Articles 1.1 and 2.1.a) of Organic Law 2/1979, of 3 October, of the Constitutional Court, and with Article 161 EC. There is no greater interpreter and guarantor than he does, notwithstanding that it is the ordinary courts that will first ensure respect for constitutional provisions when interpreting and applying the law. Otherwise, I can only disagree.

It is said that the amnesty “is expressly protected by the Council of Europe”, that “the Convention on the Transfer of Sentenced Persons of the Council of Europe allows the parties to grant the pardon, Amnesty or commutation of sentences in accordance with the Constitution or its other legal provisions (Article 12). Well, precisely the content of the quote of Article 12 of the Convention is the key. To the extent that the constitutional texts or the domestic order of a State (which is party to the convention) make it possible, amnesty may be granted. It is a hypothetical conditional, because first we have to establish whether our right allows the measure of grace or not. Then, if so, this text as an instrument of international judicial cooperation in criminal matters constitutes it as a limit for the transfer of sentenced persons. It is not a direct source, or a main argument if you will, to endorse it.

In the same block it is said that “amnesty directly incorporates several legal norms […], among them the Criminal Procedure Law, which includes the term in article 666.4“. The precept to which it refers is undoubtedly correct, and there is included as article of previous pronouncement the amnesty together with the pardon. Both are configured as obstacles or obstacles to the criminal process that, if judged by the Court by virtue of self-motivated action (article 674 LECrim), will give rise to free dismissal, with the effect of res judicata (article 675 LECrim), preventing any criminal proceedings against the accused who had alleged it.

However, we have to point out something obvious: The Criminal Procedure Law is dated 1882, and it is a legal text that has been reformed on the basis of patches. Here we have to do some historical-legal analysis of criminal procedural rules. Consider that the figure of the Municipal Judge (article 28 and LECrim concordant) is still contemplated, without having been repealed, communication via telegraph when a diplomatic representative denies his authorization for an entry and registration (article 560 LECrim), Or the entry into prison of mentally alienated persons once a conviction has been issued (Articles 991 and 992 LECrim). Being as it is an ancient text, although of great technical quality as a whole, it is normal that it foresees a historical figure such as amnesty.

As constitutional provisions prior to the LECrim, the Magnas Letters of 1812 or 1869 already provided for amnesty. Particularly striking is the case of the text of 1869, which demanded the approval of a special law to authorize the King to grant amnesty (article 74). In the draft Constitution of the Spanish Federal Republic of 1872, the President was allowed to grant pardons (Article 82.9). Even in a Royal Decree of October 15, 1833, Queen Elizabeth II, through the Regent Maria Cristina, promulgated a broad amnesty in favor (among others) of participants in political crimes and participants in the military insurrection of the Americas. Needless to say, the crimes prosecuted by the Supreme Court are not political crimes, but crimes against the Public Administration (embezzlement of funds) and against public order (sedition, repealed).

It seems logical that a law subsequent to all the legal texts cited above provides for amnesty. The fact that it is provided for in the Spanish criminal procedural law does not imply per se that it is constitutionally admissible, since it is the legal texts that have to be interpreted in accordance with the Spanish Constitution of 1978 and not the other way around. Even if this is admitted, which would already be a real legal mess, the Penal Code of 1995 (the one in force, without prejudice to its subsequent amendments) curiously does not contemplate amnesty as a cause of extinction of criminal responsibility.

Mr. also says Vidal-Folch that “Article 62 covers it as a right of grace […] and in STC 147/1986 the magistrates reinforce the differentiating reasoning of pardon and amnesty, include both in the broad framework of grace: Recognized by the Constitution in its various institutes, except that of the general pardon.” Let us go in parts, as the infamous London serial killer would say.

Article 62 EC expressly prohibits general pardons. A pardon, conceptually, supposes the forgiveness of the criminal consequences for a committed fact that is punished as a crime. If it is individual, it is preached of a sentenced person in firm (it is not possible to pardon someone without a firm conviction in accordance with article 2 of the Law of the Pardon). If it is general, an innumerable number of convicts will benefit, hence in order to safeguard the principle of legality, equality and the constitutional function of the Judiciary are prohibited. Individual pardon, yes. General No.

It is true that the Constitution  does not prohibit amnesty. It also does not allow it. By its effects, scope, and motivation, it is the closest figure to a general pardon. In fact, its consequences are more beneficial for the prisoner, since amnesty is the “clean slate”, a step beyond pardon.

Notable jurists in the field of Constitutional Law such as Manuel Aragon, Teresa Freixes Xavier Arbos or Miguel Presno Linera consider that the amnesty violates the principle of separation of powers (in terms of the actions of the Judiciary) and the principle of equality before the law, as well as the principle of equality before the law. And that if they did not want to include it in the Constitution it was because the Constituent Assembly did not want it that way. Constructing a pardon and forgetfulness of a criminal proceeding for serious crimes for a very specific number of offenders also violates legal certainty, and Article 117 EC (the aforementioned jurisdictional power).

In the pardon report issued by the Second Chamber of the Supreme Court in the above-mentioned special case, this paragraph is most illustrative:

Amnesty would thus be presented – unlike pardon – as a legal instrument for healing unjust sentences. This Chamber understands that addressing the debate on the constitutionality of amnesty as a formula for the widespread extinction of criminal responsibility declared by judges and courts would exceed the terms that are typical of this report. But this preference for amnesty – justified in political moments of the transition from a totalitarian system to a democratic regime – ignores a historical teaching that, in many cases, is not the case. amnesty laws have been the means enforced by dictatorial regimes to erase very serious crimes against people and their fundamental rights. Political amnesty decisions are part of the collective memory that served to hide crimes whose forgiveness and consequent impunity they tried to disguise through end-point laws, and which were neutralized precisely by the Courts.”

This report, initialed by H.E. SRES. Magistrates Manuel Marchena Gomez, Andres Martinez Arrieta, Juan Ramon Berdugo Gomez de la Torre, Antonio del Moral Garcia, Andres Palomo del Arco, and Ana Maria Ferrer, seems to allude to laws such as those approved in Argentina by Raul Alfonsin, Or to Decree Law No. 2191 of April 18, 1978 in the Chile of Augusto Pinochet. Despite the disparity of scenarios, there is a common pattern in this reasoning of the Chamber: Using amnesty not as a backbone of a regime change, but as a means to achieve impunity for those who commit crimes.

On the other hand, the STC 147/1986 cited in the news of the newspaper El Pais, which brings cause of the STC 63/1983 as far as the argument of the amnesty is concerned, states precisely that this “is a legal operation that, based on an ideal of justice, seeks to eliminate, at present, the consequences of the application of a certain regulation – in a broad sense – that is rejected today as contrary to the principles inspiring a new political order.” That is, in this case it would mean rejecting a regulation that has emanated from a fully democratic Parliament and that aims to protect the public funds of the different Public Administrations and the security and legitimate trust of citizens in the normal functioning of those.

As the same article recognizes, it seems that the principle of equality of all Spaniards before the law, which is provided as a superior value of the legal system (article 1.1 EC) and as a principle, right and introductory inspiration to fundamental rights and public freedoms (article 14 EC), it would be hard to coexist with an amnesty, for its aims are not inspired by principles of equitas or criminal policy, but purely driven by political motivations.

Amnesty, disease or symptom?

It has probably already been said everything (or almost everything) that had to be said about a potential amnesty from a criminal and constitutional law point of view. The dozens of opinions published in recent weeks have seen a heated debate over whether a potential amnesty would fit into the 1978 Constitution. Everyone will know what they defend, what their motives are and whether they do so in conscience or in self-interest. In particular, I am with the thesis defended until yesterday by many of the members of the Government in office, led by the President. Amnesty will be or will not be, but it certainly should not be.

But beyond the debate on whether a potential amnesty is appropriate, I want to reflect on a growing phenomenon that worries me because it affects something much deeper: Citizens’ trust in democracy. I am referring to the progressive normalization of arbitrariness as a way of doing politics. What we have recently come to call “changes of opinion”, when ours door “lying”, when others do.

That a political leader defends a position today and tomorrow the opposite is not much less a novelty, except for someone newly arrived from the planet Mars. Of course, changing your mind is healthy and smart people do it often. As the proverb says, to rectify is wise. Only fools spend their whole lives thinking the same thing. What is unusual, however, is that changes of opinion are not accompanied by a justification, even minimal. Even more so when these changes of opinion occur in a very short period of time, being human and reasonable to think that there is now (or there was then) a lie, or worse, a possible spurious interest.

In his well-known novel 1984, Orwell defined doublethinking as “the ability to hold two contradictory opinions simultaneously, two contrary beliefs at the same time.” And later he goes on to explain the way in which this tool of social engineering works: “Telling lies while sincerely believing in them, forget everything that does not fit to remember, and then, when it becomes necessary again, remove it from oblivion only for the time that suits, to deny the existence of objective reality without leaving for a moment to know that there is that reality that is denied […]. In short, thanks to doublethink the Party has been able – and will continue to be for thousands of years – to stop the course of history.”

Does this dystopia look anything like what is happening in the public space? I am not a friend of the apocalyptic theses and frankly I think that we are still very far from living in that Orwellian world, no matter how much certain events make us hear distant echoes of tyranny. But then the question is forced: Why do so many citizens begin to see as normal that the ruler acts capriciously?

Undoubtedly, we are witnessing a dangerous process of trivializing the lie. That truth that once constituted a value to preserve (to a greater or lesser extent) has passed to the background. The priority now is not to serve ideals, but to use them for the sake of particular interest. Undoubtedly, it is perfectly possible that two years ago they thought that an eventual amnesty would break the rules of coexistence and today they think, on the contrary, that such a measure constitutes the quintessence of democracy. But to operate on that change of mind, you must explain to us what change of circumstances has occurred or what powerful reasons have led you to make a one hundred and eighty degree turn. Obviously, if no explanation is given, it is legitimate and reasonable to think that we are being shaved.

In our private lives, changes of opinion on everyday issues do not require excessive doses of motivation. Sometimes even certain fickle people who are around us can seem to us as funny. Of course, if we want to be taken seriously and considered to be balanced and reasonable people, his thing is to give some reason when we affirm today that something is black and yesterday we said it was white. But in public space things change, at least in democracy. If the one who commands says one thing every day and those who obey do not ask for any justification, then we are before an exercise of capricious power. Then the mere whim of the ruler is imposed and we fall on the slippery slope of authoritarianism.

In a very interesting essay published recently, Natalia Velilla reflects from various angles on the concept of authority and points out: “We increasingly resort to potestas as an easy form of government, without an effective critical mass rebelling against the excesses of power.” (The Crisis of Authority, 2023). Some of this there is, no doubt. The citizen is no longer interested in auctoritas and is satisfied that the elected person exercises his formal power (the one who commands is mine, and that is enough for me). Ultimately, if we end up reducing the concept of democracy to the childish idea of “voting every four years,” there is no obstacle to the ruling party’s arbitrary decision-making.

In relation to this, dangerous speeches are also beginning to be heard that contradict law and democracy, implicitly assuming that democracy would be above the law. On this issue is the article by Segismundo Alvarez, published a few weeks ago under the eloquent title “Without law there is no democracy” (22/9/2023, The Objective). As Ortega already pointed out when defining liberal democracy, “public power, despite being omnipotent, limits itself to itself and seeks, even at its expense, to leave room in the state that prevails so that those who neither think nor feel like it, that is, can live. Like the strongest, like the majority” (The Rebellion of the Masses, 1930). The submission of the majority will to the laws is therefore consubstantial to the very idea of democracy.

There may also be a certain indifference to political issues seemingly alien to everyday life. A good friend argued the other day that nothing about amnesty was going to influence his day-to-day life and that his concerns were centered on charging at the end of the month and paying rent. Indifference to the public is not new or something unique about our country. And this apathy is usually accompanied by phrases such as All politicians are the same or “No matter what you vote because everything will remain the same”. The danger of this type of approach is evident: If the citizen is detached politics, it is foreseeable that politicians, sooner or later, end up detached from the problems of the citizen.

Finally, in a scenario of extreme polarization, I believe that fear of others is playing an important roleA few days ago, another good friend -a  PSOE’s voter in the last elections-  told me that amnesty is a real barbarity but that much better to cope with Vox in a hypothetical right-wing government. This way of thinking also involves a very significant risk. If we allow ours to cross all the red lines, what will prevent others from doing the same when they rule?

I could go on theorizing for eternity on why we have come to this situation, because I am sure the causes are complex and very varied. But the initial purpose of this reflection was much more modest and what has been said so far allows me to conclude. Answering the question posed in the title, I believe that the current debate on amnesty is nothing more than a symptom (perhaps the most visible at the moment) of a disease that puts democracy at serious risk. We citizens can accept that our rulers change their minds as often as necessary, as long as we are exposed to reasonable grounds to justify that change. But what we can never accept, under any circumstances, is the arbitrary exercise of power by those who govern us.

Without Law there is no democracy

In a recent article, Victor Lapuente said that the biggest political divide today is not between left and right but between “legalists and democratists.” The first is true: Junts and the PNV, which have refused to agree with the PP but agree to support a PSOE and Sumar government, are right-wing. Right-wing and oligarchic, because they have the richest voters in those autonomous communities and have directed their destinies for most of the democracy – and xenophobic, because they only consider those who defend their exclusionary nationalism to be true Catalans or Basques.

The second is already more debatable. The legalists, according to Lapuente, are the ones who put respect for the Law before the will of the ballot box, while the democratists prioritize that will. Although the author may only intend to make a sociological description, the distinction recalls the political discourse that opposes Law and Democracy. It is the same idea of those who criticize the “judicialization of politics” when a politician who has violated the Law is prosecuted or when a Law is challenged before the Constitutional Court. The same is maintained by Sanchez Cuenca when he speaks of “conflict between the principle of legality and the democratic principle.”

It must be acknowledged that their argument is simple and convincing: Citizens elect their representatives and they have the mandate to form a government and develop the policies of their programs. The limits of the law or the Constitution and its imposition by judges are contrary to popular will and democracy.

The problem is that, if democracy is to elect the rulers, it would be enough to elect a President – double-turned, of course – who would appoint the government that will implement the policies. Parliament is too much, because it is more efficient for the rules to be made by the government. There is also a surplus of judicial power, because no one better to interpret the law than who has made it, which also has democratic legitimacy. Lower costs and more democracy.

All this is logical, but it clashes with experience, which tells us that power inevitably tends to abuse and corruption. Shortly after the French Revolution, Constant already warned that “it is inherent to be able to cross its own limits, to overflow the channels established for its exercise and to enjoy individual plots of freedom that should be forbidden to it.” In other words, power, including democratically elected power, tends to favor those who exercise it and their relatives, to the detriment of equality, security and justice. It also tends to perpetuate itself, and for this it will change the electoral rules or, directly, it will abolish the elections.

That is why the law does not oppose democracy, but sustains it. Not just any law, but the law drawn up by a democratically elected parliament in accordance with a procedure that guarantees its quality. Experience also shows that an independent judiciary is necessary, but also subject to the law. As Judge Fernando Portillo graphically says, the citizen goes to the judge asking for justice, but what he obtains is the application of the Law. Precisely because what he does is apply the law, the judge has democratic legitimacy, even if he is not elected.

Experience also tells us that all this is not enough. If the parliamentary majority could pass any law, we would be subject to the tyranny of the majority that could, for example, pass laws that would take the vote off women or allow slavery. That is why there is the Constitution, which is nothing more than a law that sets the framework that all other laws must respect. This framework is necessary to prevent abuse and civil strife, and has to be accepted by a large majority of citizens. That is why the Constitution is approved – and reformed – by large majorities of Parliament and ratified by referendum.

The Constitution and the Law are the expression of the popular will and the guarantee of equality, peace and security. Outside of them we will not find concord, as we are told, but arbitrariness and civil conflict. Let us not forget that the procés was not an attack against Spain, but mainly against the rights of all Catalans. As the Constitutional Court said, the disengagement laws and the declaration of independence put “at maximum risk, for all citizens of Catalonia, the validity and effectiveness of all guarantees and rights preserved for them both the Constitution and the Statute itself. He leaves them [ron] thus at the mercy of a power that claims not to recognize any limit.”

The current negotiation of the investiture consideration with Junts -and PNV- and the insistence that politics must prevail over the law puts the system at risk.  It is true that the PSOE says that everything will be done according to the Law and the Constitution. But there is reason to worry. For example, the President’s recent statement calling the procés a political crisis that should not lead to justice. There is also concern about the general lack of respect for the system and institutions in recent times. Suffice it to see that the main producer of laws is no longer Parliament but the Government, by Decree Law; Or that people closely linked to the Government are appointed as judges of the Constitutional Court, damaging their prestige and legal security – that the PP has acted in a similar way does not excuse it. Repeated attacks by government partners on judges complete a picture of deliberate erosion of power controls.

The constitutionality of an amnesty law can be debatable. What is clear is that granting it to specific politicians in exchange for the vote of their party for the investiture, is a frontal attack on the rule of law and democracy. It means violating the principle of equality benefiting politicians who have committed crimes, it means disregarding the Law and the courts that applied it with all the guarantees.

It is surprising that those who put the will of the majority above the law do not see that those barriers that are destroying today will no longer defend us when those of a contrary ideology govern. It is not a struggle between right and left, nor between law and democracy. It is the struggle of citizens against politicians who, for their own short-term interests, tear down the levees that contain power, by taking away the protection of the law and the Constitution. Nothing new: 2500 years ago Heraclitus said that “the people must fight for the Law as for its wall” and that is what we must do (of course, within the framework of democracy and the rule of law, which in these times seems necessary to repeat the obvious).

Published article and rights of The Objective