- The first is the fallacy of prohibition. The Constitution does not prohibit amnesty, not even implicitly. Those who now argue otherwise are, in my layman’s view, confusing wish with reality. The reality is that amnesty is not inconsistent either with the prohibition of general pardons or with the rule of law clause and derived principles: equality, effectiveness of judicial protection, legal certainty, separation of powers, etc. At this point, there is no need for a lengthy explanation. The proof of the nine lies in the very contingency of the alleged inconsistencies. For if they really were such, they would always and everywhere have to be verified. This is not the case. In time, the 1931 Constitution clearly demonstrates the possibility of coexistence of the prohibition of general pardon (for the executive) and the recognition of the power to grant amnesty (for the legislature). The same is true in space: the closest constitutional systems show that the principles of the rule of law are in no way at odds with the admission of amnesty as a legislative prerogative of grace. The German case is particularly eloquent.
I will say even more. In fact, if one looks carefully, the constitution expressly recognises the feasibility of amnesty, even if it does so only in passing. In my view, Art. 87.3 leaves little room for hesitation. The very fact that it prohibits the processing of an amnesty law by popular initiative can only be understood as recognition that it allows it to be substantiated by the ordinary procedure, at the request of the government or the courts themselves. Otherwise, the provision would be superfluous. Note that the only measure of pardon to which it can refer is amnesty, since pardon is a governmental power and, moreover, as it should be singular, it does not fit in with the general nature of the law.
The constitutional recognition of this prerogative does not, however, give the legislator a free hand. Its scope for structural action is limited. Amnesty, insofar as it involves the impairment or non-fulfilment of important principles of the rule of law, can only be legitimised in the service of a particularly constitutionally valuable objective. The usual requirements of the proportionality test must be fulfilled, which means, as far as the present case is concerned, the need for sufficient justification.
This is precisely where the second fallacy or fallacy of justification comes into play. Let’s be clear: the planned amnesty currently lacks a justification that can overcome the objection of arbitrariness. Arguments based on the urgency of forming a progressive government, of de-judicialising the Catalan territorial conflict or of reconciling a society divided as a result of the procés are all fallacious, if not mendacious. Behind them, so many other sophisms are emerging.
The sophistry of the governorship – the attempt to sanitise the amnesty by appealing to the convenience of forming a government, however progressive it may be or be claimed to be – is the crudest. In fact, rather than an error of reasoning, it seems an offence to intelligence. Amnesty is a legitimate means of achieving a constitutionally valuable objective, but it must be agreed that the objective of “avoiding a repeat election so as not to give the right a second chance”, which the incumbent president would have attributed to it before the Federal Committee of his party, does not deserve such high consideration. Needless to add that, the Constitution being above politics, the investiture of a government is not conceptually apt to justify the attack or setback that amnesty inevitably entails for the rule of law and its inherent principles, especially that of equality and jurisdictional reserve. The ‘progressive’ predicate lacks thaumaturgic power: it does not purge or purify the price paid for governing. The impression of the venal nature of the amnesty, far from being cushioned, is reinforced every time one hears the refrain of progressive government.
The sophistry of de-judicialisation is also dismantled without much effort. Things are as they are: if the Catalan conflict has been ‘judicialised’ it is because the rule of law has worked. It is therefore scandalous to hear that it was a mistake to try to solve the problem by going to court, as if there were an alternative to the much-maligned ‘punitivist strategy’! Could the authorities in charge of criminal prosecution have stood idly by in the face of crimes so flagrantly committed? The argument does not improve when it is further suggested that the courts would have overreached themselves. This is undoubtedly the thinking behind Sumar’s opinion when it justifies the amnesty “because of the lack of proportionality with which certain judicial decisions were taken”. Invoking de-judicialisation to legitimise the amnesty is tantamount to configuring the measure of pardon as an instrument of rectification of judicial sentences and, therefore, as a way for the legislature to invade a sphere reserved for the judiciary. The legislature enacts the laws, but it is the legislature that applies them. The separation of powers is nothing else. De-judicialisation’ is a magic word, just as ‘governance’ or ‘governability’ used to be. It may sound good on occasion or in some instance, but we jurists know that it poisons public discourse. It encourages the politicisation, trivialisation and denaturalisation of law.
The sophistry of reconciliation is less crude perhaps, but in the current context it rings hollow just the same. The country is not in a convulsive or exceptional situation like the one that forced the amnesties of the Restoration or the Republic. Amnesty is not today an ‘existential question’ as it was then. In our circumstances of democratic normality, the intended concord and “the search for a political and negotiated solution to the conflict” is not achieved by a route in which the offender is not required to make any counterpart, not even the ‘renunciation of unilateralism’ and a minimum of moral satisfaction to the citizens who suffered his formidable defiance. This is not reconciliation, but surrender. The idea that the state is the forgiver and not the forgiven cannot be blurred at any time without provoking anger, resentment and disaffection in the bulk of the population. This is what coexistence is all about. In short: a political amnesty is not admissible at this time without the offender regularising his situation morally and politically. Would anyone conceive of a tax amnesty that is not conditional on the payment or regularisation of the outstanding tax debt?
- The absence of sufficient or confessable justification reveals structural flaws in the deliberative process and, ultimately, a deficit of democratic legitimation. We thus come up against the third fallacy of this unfortunate amnesty, the fallacy of representation. It is not enough to state that the decision has the majority support of the chamber. Political representation won at the ballot box does not stand up in the air. It needs to maintain a thread of union with popular sovereignty, as Pedro Cruz rightly observed, a thread that in our case is mortally threatened by a number of anomalies.
The first is a lack of authenticity. The original sin of the majority part of the coalition is notorious: not having stated in the election campaign their intention or willingness to support the amnesty; worse still, not having declared themselves resolutely against it. The seriousness of this contradiction with one’s own actions from the point of view of political representation should not be underestimated. In retrospect, the manoeuvre has only one name: mockery or insolence. We are now being told that the amnesty was not in the plans of the socialist party, that it is the result of a change imposed by the election result. But knowing beforehand that amnesty would be obligatory in order to govern in the most likely scenario, precisely the one that has come about after the elections, how could it not be in their plans? It was certainly not in the voters’ plans. The mockery becomes scorn when it is also insinuated – as former President Rodríguez Zapatero did – that the amnesty then rejected was of a different nature from the one now blessed.
The second anomaly is the lack of impartiality of the minority part of the coalition, whose votes are nevertheless decisive. The evil that afflicts it – an axiomatic ‘conflict of interest’ – is no less serious in that it ‘may inappropriately influence – I say this delicately, borrowing the terms of the Catalan Parliament’s Rules of Procedure – the performance of its duties as a Member of Parliament’. Remember: ‘self-amnesty’ is a universally proscribed practice. In the PSOE-Junts agreement signed yesterday, we read that the perimeter of the amnesty will be stretched as far as necessary to ensure immunity or impunity for crimes (money laundering, corruption and any others that want to be included in the lawfare box), whose only connection with the procés is that they were committed by pro-independence supporters. This is perhaps the best example of how the leaders of a party first and its deputies probably later make use of their prerogatives to benefit themselves and the people in their closest circle, completely disregarding their fiduciary duties. This is not easy to understand. Nor is it easy to understand that the socialist party has lent itself for a handful of votes to this infernal game, which many judges may interpret as an insinuation or veiled accusation of prevarication.
The third anomaly refers to the unavoidable unreliability of the process of forming the ‘general will’ derived from the combination of pardon and investiture. The mere fact that amnesty was negotiated in the context of and as a condition for the formation of the government leaves it irreparably flawed. This is the source of all ills. The increasingly less counterfactual question that will have to be asked at the end of the road – would there have been an amnesty if it had not been necessary for the investiture – puts the finger on the sore point. We all know the answer. Internally, it has been expressed with vigour by the bravest dissident: “this is not an amnesty for coexistence, it is an amnesty for investiture” (Odón Elorza). One thus realises that coexistence or reconciliation or pacification is the false cause of the amnesty, the real cause – one that the iusprivatists would not hesitate to describe as causa turpis – being the preservation of power. The negotiation carried out under the pendency of the investiture has also laid bare the increasingly coercive and extractive logic of the pro-independence parties. Can we expect anything different from the negotiations that await in the future for the ‘stability of the legislature’ referred to in the last point of the PSOE-Junts agreement?
I leave aside the thorny question of the consensus needed to adopt an amnesty of such constitutional significance. I do so, not because it does not seem to me to be a major political and moral irresponsibility to adopt it with the very slim majority that the coalition has, but because I am not sure that this circumstance, unlike those previously mentioned – lack of authenticity, lack of impartiality and lack of reliability – is enough on its own to support a legally effective argument. There is no doubt, however, that it accentuates the seriousness of the previous ones, whose relevance cannot be underestimated by relegating them to the non-justiciable field of politics. The constitutional clause of the democratic state does not permit this.
- The magnitude of the denounced fallacies of justification and representation lead the amnesty in the making to a resounding and humiliating declaration of unconstitutionality. Can anything be done to avoid it? The answer most consistent with the equally denounced fallacy of prohibition is yes. But a yes so demanding that at this stage it is nothing more than a chimera. Indeed, it would not be enough to remedy the defects of justification by demanding a ‘renunciation of unilateralism’, needless to say a genuine and unreserved ‘renunciation of unilateralism’. It would also be necessary to remedy the shortcomings of representation by ensuring that the connection with popular sovereignty is finally re-established. For which, one of two things is possible: either the sovereign people are consulted, making the approval of the amnesty subject to a ratifying referendum, or a fully-fledged constitutional loyalty pact is sealed (it will not be difficult to find models to draw inspiration from nearby), in terms that allow us to assume, beyond all reasonable doubt, that the public interest has prevailed and has been realised above any partisan interest. Tertium non datur.