Are there constitutional grounds for a 1-O amnesty law?

The debate regarding an amnesty law on behalf of Carles Puigdemont and others participants involved in the 1-O unconstitutional referendum of independence of 2017 has returned with force to the main stage of Spanish national politics. In fact, the very success of the incoming government might depend on it. The success or failure of a second Pedro Sánchez coalition has the question of amnesty as its ultimate test. It is the high bar that Puigdemont has favored because it guarantees his political future and moral authority upon his eventual return to Catalonia. In this cycle amnesty has become the common currency for many political figures on both sides of the negotiating table. Both Jordi Trull (JuntxCat) and Oriol Junqueras (ERC) have alluded to amnesty (and the execution of a referendum) as the only viable option to move forward; while, on the other side, Íñigo Errejón and Yolanda Díaz have stated, quite forcefully, that amnesty is a political decision that is not at odds with Spanish constitutional order. At least rhetorically, the normalization of amnesty is already underway. However, the question remains: is an amnesty law consistent with the current constitutional order of the Spanish state, and is it even desirable as a political solution to deal with the Catalan independence movement? These questions are not as simple as Errejón seems to think, and if anything it requieres sophisticated legal argumentation to be validated at the courts.

But if the difficulty of amnesty is open to debate and speculation - standing as a “hard legal case” as contemporary jurists like to say - it is because there is nothing explicitly or enumerated in the text or in related statutes about amnesty. However, implicit omission or the unwritten dimension of a constitutional principle does not necessarily provide a positive venue for the conflict resolution. On the contrary, in the case of the United States jurisprudential understanding, this ‘unenumerated’ or unwritten dimension of the constitution should be tested in relation to the original and coherent systemic structure of the text (a position defended by Yale Law scholar Akhil Amar), and most recently the Supreme Court has applied the so-called “history and tradition test” based on legislative practices that color implied fundamental rights (this was at the center of the most recent Dobbs abortion case). In other words, the unwritten dimension does not amount to arbitrary or open-ended norm interpretation and execution; it must also be tested against the enumerated norms and force of precedent.

Indeed, I take this to be argument advanced by constitutional scholar Enrique Gimbernat who in “La amnistía imposible” (2019) captures the incoherence of assuming the constitutionality of amnesty if general pardons are unconstitutional in Article 62: “Con otras palabras: es imposible que lo menos beneficioso (el indulto general) se haya declarado expresamente inconstitucional en la CE y que lo más beneficioso (la amnistía general) no se haya declarado inconstitucional, también de manera expresa, en nuestra Constitución; lo único que puede explicar la no-elevación a rango constitucional de la prohibición de amnistías generales es que, como ya la amnistía individual es contraria a la Constitución, es superfluo especificar constitucionalmente que, con mayor motivo aún, lo es también la amnistía general.”

In this line, constitutional scholar Javier Tajadura makes a related but well grounded point, which is that since the courts established a limit to the pardons in the executive, it only makes sense that this threshold is also operative against potential initiatives of the Parliament. The paradox, and what makes this question a “hard case” - which does not necessarily means that it is a political case as such, unless a concrete institutional order presumes that every enacted form of rebellion is of political nature and thus included internally as a strange convergence between revolution and constitution (this is what Stewart Rhodes, leader of the pro-Trump militia The Oath Keepers of January 6th sponsored) - is the explicit asymmetry or non-correspondence between pardons and amnesty; that is, the fact that the action of pardons presumes a sentence, while amnesty aims to liquidate the very existence of the past offense. In this sense - and this could very well be a substantive reason as to why the possibility of amnesty opens up - this asymmetry could very well be sufficient to justify a general amnesty for those involved in the organization, planning, and execution of the illegal unilateral referendum in Catalonia. 

Now, let’s imagine that amnesty is granted and ruled favorably by the Constitucional. Does it stand firmly on legitimate grounds? Does it accomplish the desirable ends of “amnesty”, which seeks not only the neutralization of civil war but also in the stability of civil society against disloyal aspirations to usurp or disrupt sovereign authority? It has been said that amnesty does not apply here because the context is not one of full fledged civil war or full regime change. However, just as important as the external social context is also the fact that is that amnesty presupposes a minimum of reciprocity between contenders, which is why Carl Schmitt writing in the pages of El País (1977) will argue that whoever accepts amnesty must also confer it to the opposing side; failing to do so comes short of closure. The paradox in the current amnesty discussion in Spain is the fact that it still depends on the habilitation of an independence referendum that has been ruled as unconstitutional. But to make amnesty dependent on the referendum contradicts the fundamental aspiration and purposiveness of its allowance.

This asymmetry between referendum and amnesty can only render null the potential amnesty law, since forgetting is replaced by repeating the past course of action (the future referendum). In this context, even the potential constitutionality of a general amnesty to those involved in the Catalan October Referendum (DUI) will be perceived as a futile political attempt that fails to meet the requirement of its overall purpose. In the United States context, section 3 of the Fourteenth Amendment (a recent object of juridical analysis by William Baude, University of Chicago Law School, which argues for the future disqualification of Trump from holding public office) leaves room for amnesty in the hands of Congress the repealing of said disability in cases of participation in rebellion or insurrection after taken an oath. Of course, the Spanish constitutional system is different from the American one, but as a rule of thumb no constitutional authority can endure if repeated unconstitutional behavior is tolerated or exchanged for partisan political ends lacking basic norms between the separation of powers and consensus from the political party system. It is significant to note that while in the US context there is an attempt to shut the amnesty window to preserve the constitution, in Spain the instrumentalization of amnesty can only contribute to constitutional rot.

At this point it is convenient to remember that constitutional authority has its meeting point not in the interested application of amnesty (this is the thesis defended by Iván Redondo), but rather in the irrevocable oath to uphold it. And amnesty as a “reencuentro” or meeting point makes little if those that receive it promise to repeat the same past illegal actions (Constitutions do not work as a revolving dating or lodging app). In this scenario, even a successful application of an amnesty law sits on very weak grounds of legitimacy, and can only serve to further erode the institutional order in detriment of the overall coherence of the principles and guarantees of the rule of law.

*Image: Photo of the Generalitat de Catalunya, Barcelona, Summer 2018. From my personal collection.