Let’s debate amnesty: Constitution or politics?

We must see the amnesty law as a unique opportunity to counter the rejection that Catalan leader Carles Puigdemont incites in public opinion, writes Juan Fernando López Aguilar.

Juan Fernando López Aguilar is a socialist Member of the European Parliament and chair of the Parliament’s LIBE Committee. He is also the former Spanish minister of justice.

On 23 July, following Spain’s general election, the new Spanish Parliament was formed. It has not been an easy ride.

The Spanish MPs know – just as I do in the European Parliament, another landscape in which no political force has a sufficient majority to adopt laws on its own – that negotiating and dialoguing towards common engagements is the only way to address important political and legislative decisions.

According to the Spanish Constitution (Article 99), the Spanish King invited PP leader Feijóo to try to obtain the Congress’s confidence to form a government; he failed grossly to enlarge its alignment with the far-right party Vox. In order to avoid new elections within two months, the Spanish King gave PSOE leader Pedro Sánchez his turn, and he succeeded in securing the house’s confidence with a wide absolute majority. Hence, he is now invested as prime minister for a new four-year term.

In the situation that emerged after the elections, we had to open a dialogue, balancing the demands of each party always staying within the perimeter of what is acceptable and explainable for Sánchez’s PSOE party and its commitment to preserve the Spanish constitutional framework.

This does not mean we should exclude the option of exploring possible common commitments in efforts to build a new government.

It is a dialogue that frames the discussion about the amnesty law that will restrain the prosecution of crimes committed during Catalonia’s unilateral declaration of independence in 2017.

These events, we shall not forget, resulted in the disruption of the coexistence between the Catalan people, the Spaniards, and the constitutional order.

The amnesty law, hence, should be framed in a dialogue to rebuild coexistence between Catalonia and Spain.

Having said that, some would doubt the law’s constitutional fit. Let’s look into it.

The constitutional question

First, the Constitution is a living legal framework in itself: There is no place for any claim of an “originalist” approach, whereby people who wrote it would be the ones in charge of making its only binding interpretation and possibilities.

On the contrary, interpretation and adaptation of the Constitution lies in the democratically elected powers – among which the Parliament has a prominent place as the “supreme interpreter” (Article 1.1 “Ley Orgánica del Tribunal Constitucional”, Constitutional Court’s Organic Law).

Second, for those who argue that ‘no amnesty can fit within the Spanish Constitution’, it is key to bear in mind that the concept of amnesty is not contemplated in the text. Rather, the Constitution prohibits “general pardons” (Article 62 of the Spanish Constitution).

Pardon and amnesty are not only quantitative but also qualitatively different. In this sense, a pardon is an individualised decision by which the government – after a judicial process with all guarantees and a final conviction – pardons (often only partially) the fulfilment of a penalty.

On the other hand, amnesty is the legislative power to extinguish ongoing criminal cases and/or criminal responsibilities arising from a clearly delimited factual scenario within its temporal framework, its objective and its subjective scope.

In the current constitutional order in Spain, amnesty is therefore an option for the democratic legislator, the Spanish Parliament.

Some would also argue that an amnesty is appropriate only to facilitate the transition from a dictatorship to full democracy.

Yet, if we have a quick look into our neighbours, we see that this is contradicted by the current Constitutions in reputed democracies such as France, Italy or Portugal, which have established amnesty as a legislative option without linking it to a change in regime, or to what we now know as ‘transitional justice’.

In addition, the jurisprudence of the European Court of Human Rights (ECHR) has only questioned the compatibility of amnesty laws that blocked the investigation, prosecution and trial of crimes against humanity or serious human rights violations, which has nothing to do with what happened in Catalonia in 2017.

The political question

Referring to the political debate that surrounds this controversial measure, it is necessary to put our efforts into the constitutional and democratic justification of this legislative choice, explaining and reasoning publicly about its aims and targets.

We must see it as a unique opportunity to counter the damages caused to Spanish social peace and constitutional reputation by those who exacerbated the independentist claim, while acknowledging the obstacles raised by widespread rejection in the Spanish public about Puigdemont and unilateral secession, as a breach of Spanish constitutional order.

We must see it as a unique opportunity to counter the rejection that Puigdemont triggered in public opinion. The restoration of coexistence and normalisation in Catalonia has, several times, required risky decisions.

Once adopted by the Spanish Parliament, Amnesty Organic Law would be consistent with previous decisions made by Pedro Sachez Progressive Coalition Government (pardoning all those convicted and imprisoned), as an ‘exceptional’ measure meant to overcome an ‘exceptional’ unprecedented crisis (the 2017 ‘facts’).