The price to pay cannot be the Rule of Law
Hay Derecho Foundation, which has been working since 2015 to defend the rule of law, has collected more than 96,000 signatures from citizens against the amnesty in the last few days.
The agreements between the Spanish Socialist party (PSOE) with two catalan nationalist Parties ( ERC and Junts) for the nomination of Pedro Sánchez as President threaten the basic principles of the Rule of Law and Democracy in Spain .
Both agreements consist in the granting of an amnesty for the actions regarding the pursuit of Catalan independence by the politicians of those two Catalan-nationalist parties in exchange for their vote to appoint Pedro Sánchez as President. That this is the real reason why PSOE is signing them is obvious, as this party and its president had repeatedly and publicly opposed the possibility of amnesty, changing their mind only when the votes of Junts became necessary for the investiture. It does not realley seek normalisation of relations with thes parties as PSOE says, because the beneficiaries themeselves declarre that they do not recognise Spain´s constitutional order. An agreement whereby some politicians erase other politician´s crimes in order to remain in government is an unbearable offence for every citizen who complies with the law, but also for all the authorities (police, judges, prosecutors, civil servants, etc.) that have the obligation to enforce it.
The PSOE/ERC agreement claims that there is a conflict between the principle of democracy and the principle of legality. Specifically, it states that in Catalonia “different legitimacies coexisted [and are supposed to coexist]: a parliamentary and popular legitimacy and an institutional and constitutional legitimacy”. This is a clear denial of the Rule of Law: there can be no legitimacy outside the law and the Constitution. Granting an amnesty in these terms implies the constitutional legitimacy yields to the supposed legitimacy of a Parliament that acted outside the law.
It is well known that the democratic will of the people is expressed through the Law drawn up by a democratic Parliament with certain formal and substantive requirements (as recognised since the Declaration of the Rights of Man and of the Citizen of 1789 said). Spain has been ranked between the few full democracies of the world in all international rankings for decades, so there is no doubt of its constitutional and democratic legitimacy. When politicians, as is the case, claim to act in the name of the people (or of Catalonia, or of Spain), but outside the law, what they are actually saying is they admit no limits to their power, no checks and balances, no separation of powers.
In the same vein, the repeated calls for the “de-judicialisation of politics” in these agreements means that politicians are not subject to the law, since judges do nothing more than apply it. Without submission of all – and in particular of politicians – to the law, there is no democracy but tyranny of the majority or – as in this case – of a minority. That is why the Constitutional Court declared that with the so called “disconnection laws” of the Catalan Parliament of 6 and 7 September 2017 “the Catalan authorities placed themselves “completely outside the law”, and put “at maximum risk, for all the citizens of Catalonia, the validity and effectiveness of all the guarantees and rights preserved for them by the Constitution and the Statute itself. They thus left them at the mercy of a power that claims to recognise no limits whatsoever”.
This intention to overcome “judicialisation” through negotiation and political agreement is stated again in the PSOE/Junts agreement. The problem is that it does not acknowledge that the framework in which such negotiations must take place is the Spanish Constitution. Furthermore, the Constitutional Court is singled out as the source of the conflict for having preserved our Fundamental Rule in its ruling regarding the Catalan Statute, while Junts continues to claim the legitimacy of an illegal and unconstitutional secessionist process.
More worrying still is the intention to establish parliamentary investigation commissions on cases of “lawfare or judicialisation of politics” which may “result in claims of responsibility [against judges] or legislative amendments”. Such statements imply that there is a politically motivated judicial persecution in Spain, which is untrue, and seek to place judicial action under the supervision of political bodies, which is unacceptable in a state governed by the rule of law. So much so that the main associations of judges and prosecutors -both progressive and conservative- have condemned the attack this agreementt represents on judicial independence (as have many other professional organisations).
What is left of the Rule of Law if Parliament can approve laws which, for political reasons, ensure the legal immunity of the partners in government? Where is equality before the law when Parliament intends to approve a singular law which declares certain people legally immune because of their political motivation? Where is judicial independence when it is said that the immunity of certain subjects must be preserved against the persecution of judges -“lawfare”- and parliamentary commissions are announced to supervise the activity of judges with the possibility of demanding accountability?
The reference of a referendum on self-determination held “under Article 92 of the Constitution” is a constitutional oxymoron as the Spanish Constitutional Court has repeatedly decided that questions that affect the foundations of the constitutional order “can only be the object of popular consultation by means of a referendum on constitutional revision” under article 168 of the consitution”.
The contempt for democracy is evident in other parts of the agreements. They include a “singular dialogue” with Catalonia on financing that could give rise to tax privileges. Tehy envisage to make further progress on Catalonia’s cultural and linguistic singuarities will shield the cultural-linguistic hegemony of Catalan nationalism, with the obvious risk of discrimination against non catalan-speaking residents. They assume negociations for the territorial organisation of the State will be agreed in bilateral negotiation between political parties, and not in Parliament. They refer to a conflict between Catalonia and Spain as a whole, ignoring the fact that the real conflict is within Catalonia, where the majority votes for non-independence parties. The agreement means totally cutting off more than half of the Catalans (mainly those with the lowest incomes), which does not seem democratic or progressive.
PSOE argues that these agreements are necessary to maintain its progressive policies. It amounts to saying that the end justifies the means. But in any case the end will not be achieved because neither social rights nor any other rights can survive if they are left to the discretion of the powers that be, who do not respect any limits. Moreover, what will stop future governments of a different political persuasion from granting amnesty to other politicians or criminals at the request of a minority group?
The Rule of Law, the independence of the judiciary and the equality of citizens cannot be the price to pay for a vote to stay in power. Political agreements and negociations are lawful and necessary, but should never be reached at the expense of the basic principles of modern democracies. As declared in our Constitution, “respect for the law and the rights of others are the basis of political order and social peace” .
Madrid, 10 November 2023– The first problem with the content of the political agreements reached between PSOE and ERC and Junts, and in particular the amnesty that has already been announced, is that such a large and exceptional measure is not aimed at contributing to coexistence. It is done without debate or political or social consensus either in Catalonia or in the rest of Spain, and in order to gain access to the investiture, after a shift imposed by electoral arithmetic. The legitimate political interest of a party to gain access to government should not be confused with the legitimacy of an exceptional measure in a social and democratic state governed by the rule of law, such as an amnesty, which should be in the interest of the state.
Opposing amnesty in favour of the constitutional guarantees of the rule of law is not a question of left or right. On the contrary, to go down a path where the end justifies the means is to undermine the limits that the exercise of power should have, whoever governs.
Hay Derecho express its concern regarding the investiture agreement signed between PSOE and Junts on Thursday 9 November, for several reasons:
➡️ Attack to the Constitutional Court. The Constitutional Court, in particular its ruling on the reform of Catalonia´s Statute (2010), is singled out as the source of the conflict. The Constitutional Court declared in 2010 that the reform of the Catalonia´s Statute passed in 2006 was unconstitutional regarding specific items of the reform. The Constitutional Court has a function of preventing the excesses of other powers and preserving the conformity of contested laws with the Constitution. Potential disconformities with such constitutional framework should be sought under the process of constitutional reform, not contesting the work of the guarantee bodies, such as the Constitutional Court.
➡️Interference in the judiciary. In the PSOE-Junts document, an amnesty is agreed for events linked to the so called procés of independence, for which the conclusions of parliamentary commissions of enquiry into cases of “lawfare or judicialisation of politics” should be taken into account, which, furthermore, could “give rise to actions of responsibility or legislative modifications”. Such statements imply that there is politically motivated judicial persecution in Spain, which is not true, and seek to place judicial action under the supervision of political bodies, which is unacceptable in a state governed by the rule of law. The main judicial and prosecutorial associations, both progressive and conservative, have echoed their concern regarding judicial independence.
If there are or have been actions by judges that do not strictly comply with the law, they will have to be held accountable through the procedures provided for (crime of prevarication), and not by amending the action of the courts as a whole.
➡️Impairment of control over political power. The document refers to de-judicialising politics when, in fact, it seeks to secure immunity granted by the political power to other politicians.
➡️Breach of equality before the law. Equality before the law fades out when a Parliament intends to pass a singular law that declares certain persons legally immune from prosecution because of their political motivation.
➡️The response to fundamental issues for the territorial organisation of our State cannot take place in bilateral negotiation forums between parties, but rather in the parliamentary arena.
➡️A referendum on self-determination cannot be held “under the protection of Article 92 of the Constitution” (as expressed in the agreement). The Constitutional Court has a consolidated jurisprudence in which it has established that questions affecting the foundations of the constitutional order – such as this one – “can only be the object of popular consultation by means of a referendum on constitutional revision”.
We recall that “respect for the law and the rights of others are the basis of political order and social peace” (art. 10.1.in fine Spanish Constitution).
The agreement published on 9 November has unleashed a wave of communiqués from institutions and professional bodies: the opinion of the General Council of the Judiciary, a joint communiqué from all judges’ associations, bar associations, solicitors, notaries, civil servants’ bodies (Union of Labour and Social Security Inspectors, Association of Spanish Diplomats, Association of the Higher Corps of State Auditors and Auditors), and law firms.
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Hay Derecho is a non-profit, independent foundation that works to defend the rule of law, the proper functioning of institutions and to promote the fight against corruption. We investigate and contribute to democratic debate by analysing current affairs. We approach authorities and institutions to demand transparency and accountability.