Lawyer and president of the UP-Comúns confederal group
07/05/2021 06: 00 Updated to 07/05/2021 06:19 8
In a recent appearance in the Senate, the First Vice President of the Government, Carmen Calvo, stressed that the amnesty invades the powers of the judiciary and is incompatible with democracy. The argument was not new. Against the votes of Unidas Pôdemos, the PSOE recently joined the PP and VOX at the Board of the Spanish Congress to reject even that it could be freely debated in parliament. In her opinion, the proposal of the pro-independence parties “implies the granting of a general pardon” prohibited in article 62 of the Constitution.
Those arguments are weak. At first glance, it might appear that the amnesty equates to a general pardon. Despite this, the differences between the two figures are notable. As the politician and professor Jimenez de Azúa pointed out, the amnesty does not fall within the scope of clemency but rather the decisions of “political matters of general interest” of the Legislature. On the other hand, the pardon is a power of grace of the Executive applied by means of a royal decree after the opportune opening of an administrative file. On the other hand, the lack of express provision of amnesty in the Constitution does not imply its prohibition. Otherwise, there would not be dozens of amnesties throughout history. Neither the Supreme Court would have endorsed in its judgment 101/2012 the full validity of the amnesty law 46/1977 or the extended amnesty law of 1/1984. In fact, the Constitutional Court itself has already dispelled doubts about its constitutional fit in sentences 63/1983, 147/1983 or 147/1986 and the current criminal procedure law – article 666.4 – regulates the figure as one of the causes of extinction of criminal responsibility.
Nor does it take a legal expert to know that neither amnesty is incompatible with democracy nor does justice always have the last word. In Spain, for example, it has been a fundamental democratic instrument to overcome exceptional political crises. In fact, in the last century amnesties such as the one of 1931 after the end of the monarchy or the one of 1977 after the end of the Franco regime were approved. However, in the republican period there were amnesties without the need for any regime change. The 1936 amnesty, for example, came after the victory of the left at the proposal of President Azaña. The measure benefited thousands of defendants or convicts imprisoned in the previous convulsive legislature with events such as the October 1934 revolution in Asturias or Catalonia. Among others, Indalecio Prieto or Lluís Companys. It has also happened in neighboring democracies around us. In France there have been several amnesty laws, the last two linked to independence movements in 1980 and 1988. In Portugal, a good precedent is the 1996 amnesty law for members of a revolutionary organization.
As well pointed out by lawyers such as the former magistrate of the Surpeme Court, José Antonio Martín Pallín, or Professor Pérez Royo, amnesty is the most effective political instrument to heal wounds and “put the score to zero”. In his opinion, it would be the ideal solution for the conflict to leave the courts and return to the political arena. Among other reasons, because it would not only affect the pro-independence leaders but also all the citizens involved in protests that arose in a regressive climate of great legal exceptionality.
In reality, the problem of the amnesty is not one of legal or democratic fitting, but one of divergence of narratives, correlation of forces and viability. In a context where the independence threat to return to the unilateral path is on the minds of many, those who oppose argue that this measure could be an end point of the conflict, not a starting point to resume it. Also weighing on them is the perception that behind the promoters of the initiative there is a will to evoke the anti-Franco struggle.
Be that as it may, the current Constitutional Court would in all probability not accept that solution even if the correlation of political forces was favorable. For a long time there has been a government of judges that has established itself as the defender of a very conservative conception of the nation and the State. In Spain the parliamentarianism is in low hours. The judges are the authentic political scriptwriters who dictate what the will of the legislator should be. They also annul political, non-legal statements from the legislative chambers and even decide on what can or cannot be discussed in parliament. In recent years, the Constitutional Court has de facto become the third legislative chamber, especially in the Catalan conflict.
In light of this story, the aforementioned interventionist drift of the bloc formed by the PSOE, VOX and PP in the Congressional Board to prohibit the debate may seem like an anticipatory measure of that constant interference by judges in politics. In such a context, the first thing to remember is that constitutional control of a law does not correspond to that group of deputies. It is the Constitutional Court who must do it once it is approved. In fact, if there are elements of unconstitutionality in a law, they can be corrected during its processing. In practice, this veto means a true political censorship to muzzle the legislative chambers that aggravates the crisis of democratic legitimacy caused by the judicialization of politics.
The key to understanding how it has gotten here is found in the very nature and depth of the territorial crisis in Spain, which has increased since 2010 with the ruling of the Constitutional Court on the Statute. Ultimately, the first step to begin to unblock the conflict is to solve the situation of the independence leaders imprisoned and in exile. Their freedom is not just a demand that comes from the European courts. In their particular vote, two magistrates of the Constitutional Court endorse the reform of the crime of sedition. They also criticize the disproportionate sentence. On the other hand, the Supreme Court will soon send the file of the pardons to the Government. With that, the time of the judges will be over. From there, there is room for maneuver. It will be the hour of the political actors. We cannot wait any longer. Politics must once again regain its leading role.