The amnesty to criminally erase what happened during the process has gone from being the elephant in the room to an increasingly real option that no one is hiding anymore.
This measure is a demand from the pro-independence parties ERC and Junts to Pedro Sánchez if he wants to be sworn in again as president of the government.
Jurists are coming to the fore to debate whether it would be constitutional to approve a law to deactivate all the criminal proceedings opened in recent years linked to the Catalan independence process, with a proper name, that of Carles Puigdemont.
The central question of this debate is whether the Constitution allows an amnesty since it expressly prohibits general pardons. Some say yes, others say no.
The reference studied is the amnesty law of 1977, approved as the end of a period of dictatorship in Spain. This norm was ratified in the middle of the democratic process, one year even before the drafting of the Spanish Constitution of 1978 and three years before the constitution of the Constitutional Court (TC) itself.
However, throughout the 1980s, the court did have to analyze several appeals due to its consequences, mainly with regard to labor rights. Already then, the TC made an approximation of what the amnesty was, its nature, its purpose and its consequences.
“The amnesty is a legal operation that, based on an ideal of justice, aims to eliminate, in the present, the consequences of the application of a certain regulation – in a broad sense – that is rejected today as contrary to the inspiring principles of a new political order,” reasoned in 1983 the court composed at that time by Jerónimo Arozamena, Francisco Rubio, Luis Díez-Picazo, Francisco Tomás y Valiente and Antonio Truyol.
Three years later, in 1986, the body went further and explained that the amnesty law that had been approved a few years before was an “exceptional operation, typical of the moment of consolidation of the new values ??that it serves.” The magistrates then indicated that the objective of this law was to create a new legal framework so that in the new reality the values ??of equality and justice that had been affected by unjust laws, typical of a dictatorship, could be recovered. Thus, it literally says that the amnesty supposes “what has been called by the doctrine ‘retroactive repeal of norms’, making the restrictions that the affected right or freedom suffered completely disappear, with all its consequences, with which it can be said that the right revives retroactively.”
In the case of this 1986 sentence, the participating magistrates were Gloria Begué, Angel Latorre, Francisco Rubio, Luis Díez-Picazo, Antonio Truyol, Fernando García-Mon, Eugenio Díaz Eimil, Miguel Rodríguez-Piñero Jesús Leguina and Luis López Guerra.
The text responded to several questions of unconstitutionality raised by labor magistrates regarding an additional provision approved in 1984 on the amnesty law in which its effects at the labor level were considered imprescriptible. The TC finally annulled it, but not before entering into the essence of the amnesty, which was defined as an “exercise of the power of grace.”
The ruling explains that according to article 62, point i of the Constitution, the exercise of the right of grace is attributed to the head of State. During the debate, several magistrates raised whether it should be the King who should agree to an amnesty. However, in its reasoning, the court concludes that it must ignore “the fact that it is erroneous to reason about pardon and amnesty as figures whose difference is merely quantitative, since they are found among themselves in a relationship of qualitative differentiation (… .)”.
In this part, the court reasons that it should be the legislator who must specify the legal regime of the amnesty “since there is no direct constitutional restriction on this matter.”
It is precisely this argument that those who defend that in the current framework a new amnesty law could be approved again to wipe the slate clean on the events of 2017 in Catalonia.
In fact, in 2021, the Catalan independence parties presented a legislative proposal in the Congress of Deputies – which was rejected after hearing a report from the Chamber’s lawyers in which they clearly opposed the initiative – in which it mentioned to these two sentences to look specifically at what defines that it is the power of the legislator to establish this new legal framework.
That would be the difference with pardons, a measure of grace granted by the Government and signed by the King.
Both Junts and ERC, and according to what was said publicly by their leaders Carles Puigdemont and Oriol Junqueras, have already expressed that in order to give their express vote to Sánchez in an investiture once that of the leader of the PP, Alberto Núñez Feijóo, fails, the The first condition, but not the only one, will be to put the approval of an amnesty law on track before the eventual ratification of Sánchez as president. This amnesty would involve archiving all open criminal proceedings linked to the process.
Consulted jurists weigh the feasibility of the norm, and not because of its constitutionality, but because of the argumentation that is offered. The independentists want it to be recognized that they have been victims of repression by the Spanish State, which has put their main leaders in jail for the crime of sedition. In addition, they want to be recognized that the referendum of October 1, 2017 was legal and formed part of their right to decide.
To assume this on the part of the PSOE and Sumar would be to recognize that both the Constitutional Court, the Supreme Court and other courts that have investigated cases made unjust decisions or, furthermore, that the laws that governed and currently govern are.
