Nicolás Sartorius, 27 November 2023
Image : Eva Vázquez
The Virtues of Necessity
The proposed amnesty law does not ask for any pardon for the offenders, it is an insult to the 1978 Constitution and to the strength of our democratic state. Even so, the new government must explain its positive aspects.
In the recent investiture debate, the stoic “making a virtue out of necessity” has become fashionable, to express that a virtuous outcome can be achieved from a situation with no apparent way out. Since in politics one is almost always in a state of necessity, I prefer to speak of the virtues of necessity. We practised no other virtuosity during our lauded Transition, or did we not make virtuous the necessities, for example, of legalising the PCE, approving the 1977 amnesty, the Moncloa pacts or even the 1978 Constitution itself?
Well, after the results of the last general elections, we had to sharpen our wits and, in the face of that intricate panorama, see how to come out of it as well or as little damaged as possible. After voting, citizens had the right to ask those elected to find a solution, and there were not many options when no party had an absolute majority. One was the pedestrian theory of supporting the party with the most votes, even though the proponent – the Partido Popular – had not practised it in any Autonomous Community or City Council where it had not won. How could the PSOE be asked to support the investiture of the PP when the latter’s programme was to “erase Sanchismo”, that is, all the work of the previous legislature? They do not realise that these “grand coalitions” only succeed in leaving the opposition in the hands of the extreme parties, especially the far right, and where they have occurred, as in Germany, it has always been with Christian Democracy at the head.
Another option was to repeat the elections, also proposed by the PP and some progressives. The most likely outcome would have been one of two things: the result would have been the same or similar, which would have increased the demands of the possible pacting parties, or the PP/Vox would have won with an absolute majority. Given the positions of Vox -and the current positions of the PP-, the result would have been a real catastrophe. There was a third option, not without complications, which is the one that was chosen in the end. To save some investiture agreements and, as far as possible, a legislature of the left with nationalist parties. Logically, these parties were not going to give their support without any quid pro quo. The PP also makes concessions to Vox where they govern, always detrimental to the rights of the suffering people. And, in this case, ERC and Junts proposed amnesty as a condition for the agreement. This proposal was made in a context in which six years have passed since the disastrous events of the Procés; there have been pardons that have yielded good results, the situation in Catalonia has undoubtedly improved, and it was necessary to finally overcome an entrenched dispute. Here too there were two options: to continue with the system of pardons or to resolve the whole issue with an amnesty. Given that general pardons are forbidden in the Spanish Constitution, this option would have meant continuing with hundreds of judicial proceedings for the majority of people with lesser responsibilities. It would have meant putting maximum stress, once again, on Catalan society and undoing all that has been achieved so far. An outcome that would not be in the general interest of Spain and its democracy.
The thorny issue of amnesty therefore had to be addressed. The first question to be resolved was whether or not it was constitutional. Let us leave the matter in the hands of the Constitutional Court, which is why it exists, but from what we have studied in the bill presented, I believe it contains a very solid basis capable of passing the test. It is true that it was not included in the Fundamental Law, but neither was it excluded, as was done with general pardons. It made no sense for the same fully democratic Congress that had granted an amnesty in October 1977 to prohibit it a few months later when drafting the Constitution.
Quaint arguments have been put forward against its concession. For example, that it is a fraud or corruption because the PSOE did not include it in its electoral programme. If such a thesis were accepted, coalition governments or parliamentary agreements, i.e. democracy itself, would be unviable. I do not believe that the PP included in its programme the concessions it made to CiU in the Majestic Pact or the elimination of military service. It has been accused of undermining the rule of law and the division of powers. It is truly unusual that a manifestation of the right of pardon, approved by an absolute majority in Congress, could undermine these principles .A measure that has been applied dozens of times in many democratic countries and no one has been upset. Of course, we live in a country in which some judges have been in an uproar against a law they did not know about, because they had heard of lawfare. Apparently they thought that evil parliamentary committees of enquiry might meddle in their rulings. Perhaps they would have calmed down if they had read Article 52.4 of the Rules of Procedure of Congress, which states: “The conclusions of these Commissions, which shall not be binding on the Courts nor shall they affect judicial decisions….”.This is a country in which, in brainy debates, it is claimed that amnesty is a national humiliation, equivalent to asking forgiveness from those who have committed crimes, who have not repented and have not renounced their malevolent intentions. It all seems to be the result of one person’s delusional ambition. As far as I know, the bill does not ask for any forgiveness from the offenders, it is an ode to the 1978 Constitution and the strength of our democratic state. No one is required to make an act of contrition when the right of pardon is applied to them, at least in my case, when it was waived twice. Nor do I believe that anyone should have to renounce their political objectives, be it independence or libertarian communism, as long as it is within the Constitution and the law. It is worth remembering that in the PSOE and Junts agreement, the latter propose a referendum on self-determination on the basis of Article 92 of the Spanish Constitution. That is to say, called by the King, at the proposal of the president and authorised by Congress. The PSOE does not accept this offer, although the famous unilateralism is ruled out.
It is urgent, in any case, that the new government explain the positive aspects of the amnesty, as the most rancid right-wingers are imposing the narrative against its concession .In my modest opinion, it has more positive than negative aspects: it tends to overcome an entrenched conflict; it contributes to harmony in Catalonia; it marginalises unilateral secessionist acts; it facilitates the constitutional integration of nationalist forces – one day the PP will be grateful for this; it strengthens Spanish democracy; it avoids the repetition of elections; it allows a progressive government to be formed, with an advanced social agenda. And no one with an advanced social agenda. And let no one fear, because it is radically false, that this amnesty is the prelude to a referendum on self-determination. Improvements in self-government are possible and even desirable, but referendums – of any kind – that allow the separation of an autonomous community from Spain are not viable, because they do not fit in our Constitution and because they would be a profoundly reactionary disaster.