There were no surprises. As anticipated, the Constitutional Court has endorsed the general constitutionality of Organic Law 1/2024 on Amnesty (LOA), although it declares two provisions of Article 1 unconstitutional and applies a conforming interpretation to Article 13. It has acted with internal division, as was also expected, according to the two information notes published—one on the ruling and another on the dissenting opinions. Moreover, the text of the ruling has leaked before publication, which allows us to perform an initial analysis of its arguments. From a legal standpoint, this is very likely to be the most important ruling by the Constitutional Court in recent years. It spans 205 pages (excluding the dissenting opinions) in which a detailed discussion unfolds of all the arguments advanced by the Popular Party Parliamentary Group in its challenge to the law, arguments that will shape the forthcoming rulings in the months ahead as the remaining challenges are resolved. In my view, the ruling is legally impeccable. I will explain why and, above all, show why this constitutional compatibility judgment is categorically different from the political justification for the amnesty, which, in my opinion, is very negative.
“This will very likely be the most important ruling of the Constitutional Court in recent years”
Let us begin with the legal analysis, and more specifically with the central argument of the ruling (which can be found in the FJ 2 and 3): the Constitution does not explicitly prohibit amnesty (since it says nothing about it), and as all jurists in the world know, in a liberal and democratic legal order, everything that is not expressly prohibited is permitted. Indeed, this is what legal theorists like to call a “weak permission” (i.e., implicit). But permission nonetheless. The ruling dismantles the applicants’ argument that amnesty is prohibited by the Constitution because it bans general pardon, and that then, a fortiori, it should prohibit amnesty.
The Constitutional Court explains that amnesty and pardon are two legal concepts with different natures, with a qualitative, not quantitative, difference between them. So the a fortiori argument cannot be used to sustain the thesis of an implicit prohibition. On the other hand, it is true that the Constitution does not expressly empower Parliament to legislate on amnesty, as the applicants contend. But it does not need to, because Parliament has a general competence to legislate on any matter that does not fall within the Constitution’s negative reservation, that is, that which is not clearly prohibited by it.
In second place, the Constitutional Court explains in FJ 1 the main reason for rejecting the request to refer a prejudicial question to the European Court of Justice. The answer is simple: the judgment that is being sought from the court to resolve the constitutional challenge is strictly limited to verifying the LOA’s compatibility with the Spanish Constitution, as the supreme norm of our legal order. It does not require any interpretation of European Union law, and far less, consequently, the interpretative clarifications that the CJEU might deem appropriate to make. If the LOA breaches any European provision, that is something that, if anything, European justice will determine.
Thirdly, over the seventy-eight pages devoted to Legal Grounds 4 to 12, the ruling discusses in detail all the arguments of the constitutional challenge, relating to the alleged general incompatibility of the law with central constitutional principles such as the separation of powers, the reserve of jurisdiction and judicial independence (LG 4), the principles of legality and penal definiteness and the prohibition of special criminal laws (LG 5), its alleged violation of the ideal of justice (LG 6), the law’s arbitrariness (LG 7), equality before the law and non-discrimination (LG 8), the principle of effective judicial protection (LG 9), the prohibition of self-amnesty (LG 10), the rule of law (LG 11) and the possible violation of the right to political participation (LG 12).
“The ruling declares unconstitutional only two provisions of Article 1”
The arguments used in this portion of the ruling are, of course, numerous and varied. A remarkable level of detail and thoroughness is achieved, typical of a court aware that its text will be read, analyzed, and studied for years by thousands of lawyers and law students in Spain. It is not that there are surprising or truly new ideas on these pages, nor that the Court has changed any doctrine already established in its prior jurisprudence. But the level of detail and clarity of the discussion, and above all the centrality and cross-cutting nature of the principles considered, will render it a legally very interesting text. So there will be time for a deeper legal discussion later.
Finally, the ruling also includes forty-four pages dedicated to discussing the challengers’ claims regarding the unconstitutionality of specific provisions of the LOA. Here too there are interesting and legally solid rationales. And it declares unconstitutional only two provisions of Article 1. Paragraph 1, which, by setting out the circumstances under which the law applies, is considered to violate the equality principle of Article 14 of the Constitution, since in some cases it does not extend amnesty protection symmetrically to people who may have committed illicit acts intended to derail the independence process. This declaration of unconstitutionality does not entail the nullity of this provision, however, but rather extends its effects to the cases indicated. And paragraph 3 of that same Article 1, which by extending the amnesty’s protection to acts completed after the law’s approval, even if they had been started beforehand, produces future effects in a way that is incompatible with the nature of this type of law. It also issues a conforming interpretation of Article 13 to ensure that the Court of Auditors’ actions will always be conducted with the hearing of all parties involved. In all these cases, again, the arguments offered by the court strike me as legally sound.
“Neither Parliament is judging particular cases, nor is it issuing specific instructions to judges on how to apply a law to a particular case”
Of the many legally interesting topics opened up by the ruling, I will highlight one especially important. The ruling clearly explains how the approval of an amnesty law by Parliament does not entail any breach of the rule of law or the separation of powers. There is no interference by the legislative power in judicial independence, nor a violation of the principle of jurisdictional reservation, in the same sense that it is not the case with a particular executive pardon. Neither is Parliament judging particular cases, nor issuing specific instructions to judges on how to apply a law to a particular case, beyond the effect produced by any law by virtue of the governing legislative principle, nor does accepting the logic of the exceptional nature of any act of grace erode the essential principle of the rule of law. This is not the case, however, when ordinary courts, no matter how supreme they may be, question the validity of a law enacted by Parliament, and even more so if they do so driven by political logic rather than strictly legal reasoning.
And this is one of the central points of the discussion opened by this ruling. The Court does not evaluate the law politically, for that is not its remit. Nor does it or any other court have that mandate. The ruling is very clear when it states that it cannot examine the real motivations of the legislators who voted in favor of the LOA. It may well be that they acted not from a sense of justice, but solely from the spurious interest of securing Pedro Sánchez’s investiture as president, as the challengers claim. But imagine a world in which judges would assess the real motivations of legislators who approve any law. What surprises would we encounter!
“Attempting to win in the courts, without sufficient legal grounding, what one has failed to win politically is something that has a very clear name”
I, not being a judge, can nonetheless offer a political judgment as a citizen. And I can say, for example, that in my view the amnesty law has two defects that seriously undermine its political justification: the evident fact for me that it pursues the private interests of party(s) rather than the general interest, and that it lacked at the time of its approval the level of general political consensus required for any exceptional amnesty decision such as this. If one wishes to activate the logic of exceptionality, it must be done with as broad a consensus as possible. One may politically disagree with this assertion, and I would be happy to discuss it with anyone. Simply put, one thing is the political scrutiny and debate necessary in any democracy, and another thing entirely is judicial interference in those political matters.
Trying to win in the courts, without sufficient legal grounding, what one has failed to win politically is something that has a very clear name and that represents one of the gravest problems facing our democracy and one of which we must be most careful: lawfare.
