Sergio Díaz Sánchez, Visiting Scholar, NLS
The cries of traitor were heard several times on May 30th when members of the Spanish Socialist Workers´ Party (PSOE) voted in favour of the new amnesty law in the Congress of Deputies. This new law aims to provide exemption from criminal, administrative or accounting liability for the acts committed between 2011 and 2023 by politicians and others seeking to pursue their agenda of achieving Catalan independence by the means that they deemed expedient, even if this meant taking action and spending public money in ways that judges had previously ruled ultra vires.
The level of tension of politics in Spain is generally high, even to the point of embarrassment in the eyes of some. Nevertheless, in the last few years, under the government of Pedro Sánchez this has reached previously unimaginable levels. A particularly egregious and distressing example of this was seen when members of the far-right party VOX hurled racist slurs a Member of the Parliament, who was of Latin American origin, during the above-mentioned vote.
When the PSOE's investiture agreement with the pro-independence party Junts was announced, the opinion sections of conservative newspapers were filled with commentary from leading jurists proclaiming with certainty that the amnesty was blatantly unconstitutional. It is striking that prior to this controversy, the subject had hardly been dealt with in academic discussion. The response on social media was even more strident. In addition to republishing and praising their colleagues' articles, some argued that the constitutional apocalypse had apparently arrived: Spanish citizens were no longer equal before the law, the rule of law was dead and the road to a dictatorship was being paved. The renowned legal philosopher García Amado claimed in his networks that he could never again write "State" with the first letter capitalised. Others prophesied a future of shame (even ostracism) for those jurists who had not positioned themselves on the "right side of history". In short, Spain and its integrity had been sold to the separatists for four votes to satisfy the hunger for power of a despotic President.
The main arguments from this quarter can be summarised as follows. Article 62 i) of the 1978 Spanish Constitution prohibits general pardons. Using a minori ad maius logic, if general pardons are prohibited, amnesties are all the more so. They also refer to the constituent assembly debates to reinforce their position. The two amendments that sought to include the power to grant amnesties to the legislature were rejected by the fathers of the Constitution. Besides, the rulings in which the Constitutional Court mentions amnesty, did not present an opportunity to rule on its constitutionality. Equally, there was no possibility of this being considered in respect of the amnesty approved in 1977, as part of the transition to democracy.
On the other hand, a frequent argument in defence of an amnesty is that Parliament is free to legislate on anything that is not expressly prohibited by the constitution. One simplistic reply to this position is that if you follow such reasoning to its logical conclusion, then heinous practices such as slavery, not expressly prohibited within the Constitution, must therefore be permitted. An alternative attempt at refutation has also been made to refute it by drawing a distinction between the legislative power, aimed at making only general and abstract laws, and the prerogative of mercy which is only legitimate and possible by virtue of special Constitutional provision.
All of these arguments have found responses from jurists with a different perspective, writing in other sections of the media. The latter's forceful arguments about the place of amnesty in the Constitution made an impression on many of its detractors. The arguments of some mutated from constitutional incompatibility to political inappropriateness.
Following the order in which the arguments against the constitutionality of amnesty have been presented, the a minori ad maius argument has been refuted by pointing out the qualitative difference between amnesty and pardon (recognised by the Constitutional Court itself in judgment 147/1986). If an amnesty is quantitatively more serious than a general pardon, and the architects of the constitution not deal with it expressly, as they did general pardons?
Although no explanation was given for this omission, some authors observe that there was a pattern of leaving some matters in the hands of the legislator. This was the case, for example, with the composition of the General Council of the Judiciary and the appointment of the President of the Supreme Court. Furthermore, the 1977 amnesty, continued to operate after the adoption the current Constitution (a reality which the Constitutional Court has not questioned even in the form of an obiter dictum). Neither is it wholly unique, consider the existence of various de facto tax “amnesties”, even though these have not been labelled as such.
The interpretation of the Constitution given by the amnesty's detractors leaves only individual pardons within the prerogative of mercy. If this is so, it is difficult to explain why Article 87.3 of the Constitution, in restricting the matters that can be subject to popular legislative initiative, refers to the "prerogative of mercy" and not simply to individual pardons.
The argument that allowing for the constitutionality of an amnesty means also allowing for the constitutionality of slavery is difficult to defend, because it ignores the rules governing the interpretation of the Constitution, and the rights and principles that prohibit such abuses of human rights and dignity. Moreover, it is manifestly absurd to suggest that anything not expressly permitted by the constitution is prohibited. Professor Bastida Freijedo cites same sex marriage as an illustration of the absurdity of such an argument. Without doubt, individual laws can be perfectly constitutional, as the Constitutional Court affirms in its judgment 129/2013. And finally, in other jurisdictions such as Ireland and Germany, amnesties have been approved without being explicitly recognised in their respective constitutions.
If we accept that amnesties do have a place in the Spanish Constitution, the next step in consider whether this particular law meets the necessary requirements to be Constitutional. This is a more complex question and beyond the scope of this blog. I will observe however that some of the commentators who support the Constitutionality of amnesties in the abstract argue that this particular approved text contains serious flaws and is therefore problematic in Constitutional terms.
Howsoever that may be, the kinds of apocalyptic assertions that I referred to above, and the pugnacious attitude of their proponents only serve to exacerbate tension in society. Academic debate, which at times cannot be divorced from the political debate, needs a calmer and more measured tone. Emotive and exaggerated statements do not to change the substance of the underlying arguments. However much one may dislike the amnesty, the way in which it has been adopted or its consequences, the step does not signify that the rule of law in Spain is over, and certainly not that will its integrity of the Spanish state be compromised.
Further Reading
“Spanish Fury at Pedro Sanchez Controversial Amnesty Plan for Power” BBC News (8 November 2023)
Javier Garcia Oliva “Establishing a Legally and Politically Acceptable Regional President for Catalonia: The Quest Continues” UK Constitutional Law Association Blog (2 February 2018) https://ukconstitutionallaw.org/2018/02/02/javier-garcia-oliva-establishing-a-legally-and-politically-acceptable-regional-president-for-catalonia-the-quest-continues/
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