Miguel Trías, 7 September 2023
Olivier Matthys / EPA / Efe
In view of Feijóo’s probable failure in his investiture scheduled for the end of the month, the way will be open for Sánchez’s attempt to form a parliamentary majority to support his own. The votes of Junts and ERC are essential for this. Puigdemont and Junqueras are now vying for who sets the bar higher, but amnesty and self-determination are on every menu. Given the evidence that the latter is out of the question within the constitutional framework, there remains the possibility of accepting the former, granting a triumph that both parties could offer their electorates. Beyond the debate on whether it is fair or not, the advantage that a pact with Junts could have would consist in the normalisation of a political party that will continue to play a relevant role in Catalonia and the elimination of an element of high toxicity for our politics, such as the personal situation of Carles Puigdemont.
Our Magna Carta only speaks of pardons, attributing to the King the “right to pardon in accordance with the law”, while at the same time prohibiting “general pardons” in its article 62. Our constituent members did not want to enter that garden, despite the fact that amnesty was a repeated request of the anti-Francoist opposition, which was granted through the laws of 1976 and 1977.
And possibly it was not contemplated because it is a legal figure of a political nature, normally associated with a change of regime, which would lead to it not being envisaged within the framework of constitutional continuity. It is not surprising, therefore, that those who most enthusiastically support it are the pro-independence parties or those grouped around the Sumar banner, which in one way or another demand the end of the “regime of ’78”. There are also some respectable experts who defend its constitutionality, arguing that since it is not prohibited, it should be admitted as long as it follows a different legal channel to that of pardons, such as the approval of an organic law that defines and justifies its scope. However, most constitutionalists, even among those of a progressive bent, find it difficult to admit it, as it would violate the principle of equality before the law by denying the courts the possibility of prosecuting crimes that are still in force in certain cases. The fact that the composition of the Constitutional Court has recently changed does not guarantee that it will endorse it. And there is no worse scenario than an amnesty that is accepted by the pro-independence movement and is revoked after two or three years.
PSOE would do well to look for another legal formula that is sustainable and does not explode in our hands.
The PSOE has a heavy responsibility here and should not accept as a magic formula a legal solution of dubious constitutionality that it rejected in 2021. If the government’s option is to reach an agreement with the pro-independence supporters, it would do well to look for another legal route, perhaps less to the liking of Junts and ERC, but one that is sustainable and does not explode in our hands in a while.
In any case, since the state cannot be left unprotected against actions such as those that took place in 2017, the decriminalisation of sedition in 2022 and the legal formula that could be agreed now should be followed by an appropriate regulation of crimes against the constitutional order. This would also politically and morally justify the entire reform, as it would mean recognising that our legal system did not adequately provide for the criminalisation of what was done, but that this does not mean that the way should be left open to do it again.