Tomás de la Quadra-Salcedo, 15 January 2022
Image: Enrique Flores
Tomás de la Quadra-Salcedo Fernández del Castillo is Emeritus Professor of Administrative Law at Carlos III University, former Minister of Justice and former President of the Council of State.
The 1977 law was not amnesia, forgetfulness or a preference for leaving certain crimes unpunished, but rather it was made with full awareness of what happened, giving an opportunity to start a new time.
Putting an end to what they call impunity for the crimes of the Franco regime by repealing the Amnesty Law of October 15, 1977 is a proposal by the Esquerra Republicana (ERC). Its objective consequence, apart from the subjective intention of its promoters, is to question the legitimacy of our Constitution and its founding assumptions. Such a proposal requires remembering the reasons for the amnesty and investigating the reason for now proposing its repeal. The articles by Santos Juliá, whose lucidity we yearn for, in these pages on the matter help us to understand it.
Any citizen in a democracy has the right to disagree with the 1977 amnesty, as with any decision, but they also have the obligation that the discrepancy be based on reasons that prove their superiority over those that justified it. Go ahead that it is reached with perfect knowledge and awareness that it reached all violations of rights and crimes of political intent committed in the war or in the dictatorship and even in the Transition, whatever their seriousness or their authors.
In 1976, the Government of Adolfo Suárez, just 20 days after his appointment, had a first amnesty (later extended in March 1977) excluding crimes that would have harmed the life or physical integrity of people. Violent crimes and more specifically terrorism were thus the limit of that first amnesty, which did not mention the crimes of the dictatorship or the rebellion against the Republic. The terrorism of the Basque independence groups (ETA) and, less frequently, of the Catalan independence movement (Terra Lliure and EPOCA) thus became an obstacle to a total amnesty.
However, national reconciliation, of which the amnesty was a mere instrument, was a demand of the opposition to the dictatorship long before the appearance of terrorism. Already Azaña himself in his speech in Barcelona in July 1938 (“peace, piety, forgiveness”) or in the dialogue of his characters at the Evening in Benicarló —about the errors and barbarities committed everywhere— anticipates with those final words the reconciling way out, no matter how much each one wants to prioritize, with all rights, the seriousness of the different barbarities. Some democratic forces, shortly before the end of World War II, assumed “reconciliation” —thinking of an end to the dictatorship due to its alignment with the Axis—, but national reconciliation (of all with all) ceased to be an aspiration or a desire, to definitively transform itself into a common policy of the opposition to the dictatorship, since the communist party advocated it publicly and unequivocally in 1956.
The transition to democracy entailed for the opposition (Commission of the nine) the recognition of territorial identities (in line with the pact of San Sebastián of 1930 and the Second Republic), although in a generalized way and with differences (nationalities and regions) that they demanded to incorporate regional aspirations into democracy.
The ethical challenge for the democratic forces of the opposition, but also for those who sincerely wanted to arrive at democracy from different origins, consisted of laying the foundations for a future in democracy that recognized territorial diversity, which required a complete and total amnesty; for those who were considered to have resorted to violence, erroneously to say the least, alleging as a justification that the dictatorship violated all human rights and even offered no way out. The words of Xabier Arzalluz reflected to the defender an amnesty “from everyone and for everyone” and without “advocating bloody acts, because bloody acts have occurred on both sides, also by those in power”.
The amnesty of October 1977, already after the first democratic elections, was not carried out of oblivion, but for oblivion, but with the very present memory of what was wanted to be forgotten as soon as it could be a conditioning factor for a fair future to settle past scores . Never stop keeping in mind the past as history and as a lesson to avoid mistakes. Amnesty, then, from the conviction of the Spanish people themselves —when they expressed themselves almost unanimously through their representatives in 1977— that to begin by demanding responsibility for all the crimes and atrocities without forgetting any was the greatest mistake and irresponsibility that could be committed if you wanted to open a new page and not settle the past with accounts. It is not surprising that the most radical defense of the amnesty was made by nationalist forces aware of the impossibility of building a future in peace with a diversity of nationalities and regions, without a total amnesty that included the crimes of war, dictatorship and, also, of the terrorist independence movement.
It was not amnesia, forgetfulness or preference to leave certain crimes unpunished, but full awareness of what happened, giving an opportunity to start a new time. This gave the 1978 regime the highest possible moral height to ethically delegitimize any future violence. Such height is the very foundation of our Constitution which was preceded, expressively, by the amnesty that honors all those who approved it in their ideological diversity.
Those who ask now —from the barrier of 40 years that have passed and from the security that a settled democracy seeks— to repeal the Amnesty Law should do so from the truth: without hiding or falsifying the reasons that led to granting it. They should explain if they, hypothetically located today in 1977, would dispense with that supreme objective of reconciliation, excluding from that amnesty only the crimes committed by the rebels in the war and winners in the dictatorship, maintaining the amnesty in everything else.
The invocation of memory, to refer to the names of streets, monuments or inscriptions, has nothing to do with amnesty. There will be things to do where you can move forward and improve. The search for the bodies of those murdered, the transfer of Franco’s remains, the return of the Pazo de Meirás, are necessary and convenient steps taken in a timely manner. There will be others, but that has nothing to do with the amnesty. The cult of memory does not always serve justice, as Todorov says in The Abuses of Memory, and even less so when it is wielded from partial memories that hide everyone’s memories to distort the reasons for the amnesty. In any case, the truth has been well known for a long time, at least when historians, from Hugh Thomas to others, began without dismay to contribute data not to memory, but to history.
The legal arguments that are sometimes invoked against the 1977 amnesty by reference to international standards are not legally consistent or pertinent, as can be deduced from the recent ruling of the Constitutional Court (Ruling 80/2021). They also dispense with the reasons for the amnesty and the circumstances in which it was granted, forgetting essential principles of law such as legal certainty or equity.
This rigorous and partial use of law leads to an idea of justice deformed by the Shylock syndrome —Shakespearian human archetype common to all cultures, ethnic groups and times— of an inflexible claimant of his right to collect a “pound of meat close to the heart” which he only renounces when he warns —fearing its consequences— that his implacable right will not “strictly” understand even a drop of blood.
But, without speaking of blood, unnecessarily repealing the 1977 amnesty, liking oneself as impostors and alleged impunity fighters, can lead, even if one is not aware, to opening trenches that one day could be filled with resentment and hatred, a prelude to worse evils.