Jaume Asens’ optimal justifications for amnesty

This past weekend El País ran a one-page interview with former Unidas Podemos congressman and lawyer Jaume Asens who has found himself as the broker-dealer between Carles Puigdemont and the Sumar wing of the Sánchez coalition. Asens does not beat around the bush, and favors a new blank slate for Puigdemont and everyone involved in the unilateral referendum of October 2017 in order to move past the territorial tension and what he calls in open ideological bite (it is still an open electoral season) “el PP de la porra” (or the Partido Popular with baton in hand). But leaving aside the fact that he moves between the neutrality of the jurist and the militancy of the political strategist, he does provide the contours of some of the elements that should be accounted for in light of the ongoing negotiations. Most probably these will define the immediate terms of the exchange towards a “soft landing” for the constitutional justification of an amnesty law. In broad strokes, Asens’ justifications can be severed in three compartments: precedent, constitutional control/ systemic coherence, and political will of the legislative majority. 

First, in terms of precedent, Asens claims that whatever is not written is not only not unconstitutional (this is a claim that I have probed recently in light of the unwritten dimension of the constitution), which is another way of saying, in a spirit of Common Law, that whatever is not written in the constitution positively can be subsumed through the force of precedent. The one problem that this justification might ran into is that, as observed by legal scholar Josu de Miguel (Universidad de Cantabria), the force of precedent heavily relies on economic remissions that differ from the ‘exceptional’ nature that amnesty requires to have any legal standing to begin with. Furthermore, we might be speaking here of precedents that are at a level of generality that will have to be forced to subsumption of principles through necessary homologation in order to become precedents. I am no authority in Spanish constitutionalism, but it does seem (at least in broad considerations on jurisprudential grounds) that this could generate all sorts of political pathologies along the road instead of solving them through the mechanics of judicial control and constitutional original intention (constitutional construction trumps the validity of precedents).  

Second, for Asens the amnesty law does not violate constitutional control, which at no point is usurped by legislators, and so it does not impact the principle of jurisdictional exclusivity of constitutional control. Rather, the law amplifies the general criteria for its adjudication. This is another way of avoiding strict violations of the separation of powers doctrine and arbitrary judgement (the details are immensely difficult and they surpass whatever I know about the system of the Spanish Constitution). However, it does seem that there is a strong dependence on principle subsumption that takes a holistic and value-driven approach to adjudication (a jurisprudence that we have come to know as post-positivism developed by legal theorist Robert Alexy’s theory of principles), which Professor Luis Arroyo Jimenez (Universidad de Castilla-La Mancha) has keenly identified as originating in constitutional principles operating through an optimization mandate: “Los principios constitucionales que operan como bien jurídico protegido de la norma penal son mandatos de optimización que deben ser ponderados por el legislador (lo es tanto el que configura el tipo como el que aprueba la ley de amnistía)… junto a otros principios constitucionales, y es sabido que el control de proporcionalidad en materia penal es extraordinariamente deferente en virtud del principio democrático”.

In other words, there are at least two key elements in this thick description that one should isolate: first, the operation of principles through a mandate of optimization as reasonable; secondly, an internal claim of legitimacy based on the principle of deference to the democratic principle substantiated in the constituent will of the parliamentary majority (this presupposes the Sánchez coalition, and thus the Junts’ votes). In other words, the mandate of optimization of broad principles and deference to the will of the parliamentary majority provides the two fixed points for the justification of amnesty. In any event, the controversy rests here: the trade off between the democratic principle valance and dependency on those that will be benefited from the mandate of optimization.

Finally, Asens’ third and last element, consequentialist in nature, extends the democratic principle to the adjudicative - executive force of the amnesty law. For Asens the reasonable standing of amnesty presupposes the democratic principle that is not accountable to the countermajoritarian difficulty. This might even provide a greater strategic space for a future referendum, since ultimately for Asens the weight of the territorial crisis (it is not necessarily “constitutional”, since it is above judicial review) should be resolved “volviendo a las urnas con una propuesta que encaje”. This is something that is factored from the optimal understanding of the jurisprudential application of principles withholding the legitimacy of the democratic principle (a legislative majority) with a big caveat: it is only possible as long as it is our side.

There is a major constitutional question here in regards to the “optimal resources” of legal standing against formal and positivist precautions to manage risks and aversions posed to the stability of the rule of law, a model defended by constitutional thinker Adrian Vermeule in his ‘optimizing constitutionalism’ (the design and argument can be encounter in full form in chapter 2 of The Constitution of Risk). But the function of optimizing second order risks presupposes a level of institutional generality that never loses sight of the constitutional regime that it seeks to protect from potential threats. So, to this very end, rescinding normativity and repressing the political doctrine (which is different from contingent acting democratic principle of Parliament), might serve to further deepen the crisis between the regional nationalisms and the state. In other words, optimizing principles tend to entrench the position of the state against prexisting risks. If this is so, then Asens’ optimal conditions, might be self-defeating even if momentarily succeeding with flying colors.