If a few days ago someone had asked me what Spain’s general interest is, I would probably have answered, in typical Galician fashion, with another question: What is the general interest?
It is a difficult ideal to define, since it is an indeterminate and evolving concept that has gained media prominence following the arguments presented by the European Commission’s lawyer in proceedings before the Court of Justice of the European Union regarding the amnesty law.
“In a social and democratic State under the rule of law, the general interest is defined by the laws, by the political representatives of the citizenry, always under the vigilant gaze and control of the Constitutional Court”
The ideal of the general interest has always existed, in all societies, but its content has evolved over time and with social changes. All religions have given attention to the idea of the general interest, almost always linked to moral and ethical principles that, of course, have also evolved. To cite a nearby example that resonates with us, the Spanish “Christianization” (or whatever it was) of the Americas, with all that it entailed, was identified at the time as a general interest of Spain and Christendom.
As ethical and moral principles rose to become civil norms, that general interest took shape as rights and obligations of individuals, as well as of the public powers of each era. This is so, at least since the Code of Hammurabi, which, by the way, recognized both the presumption of innocence and the application of the lex talionis to the offender.
The laws of each moment have shaped the idea of the general interest according to social perception and awareness. To the point of turning it into a pillar and a basic criterion of the law, especially in its administrative branch. We could conceive it as the set of collective benefits and needs that justify the actions of the public authorities and that transcend private interests.
In its submissions before the TJUE the lawyer for the European Commission has gone so far as to state that the amnesty law does not respond to Spain’s general interest. And the first thing that comes to mind is the Commission’s lack of legitimacy to pronounce on this aspect of the Law.
Being, as it is, an indeterminate and malleable concept, it seems appropriate to question who has the legitimacy to define, at each moment, the general interest of a community, in this case Spain.
In a social and democratic state under the rule of law, the general interest is defined by the laws, by the political representatives of the citizenry, always under the vigilant gaze and control of the Constitutional Court. All of them, of course, influenced by the social consciousness of the moment.
“The laws of each moment have shaped the idea of the general interest according to the perception and social awareness”
With regard to the amnesty law, things are simpler than they might seem. Organic Law 1/2024, at the very start of its preamble, defines the institution of amnesty based on the general interest that entails “the need to overcome and channel political and social conflicts, in the pursuit of improving coexistence and social cohesion, as well as the integration of the different political sensibilities.”
The legislator, in the law’s preamble, elaborates in justification that this particular amnesty responds to that general interest of Spanish society, which he identifies with the “need to guarantee convivencia within the rule of law, and to generate a social, political, and institutional context that fosters economic stability and cultural and social progress for both Catalonia and the whole of Spain, while also laying the groundwork for overcoming the political conflict.”
It is interesting to note that the amnesty law, addressing a debate that was present in public opinion, already speaks to the possible conflict between a law that, by definition, has general application when it regulates singular situations (lately, singularity appears in all political mixes). And it resolves this conflict by stating that, according to constitutional jurisprudence, “the concept of law present in the Constitution does not forbid the existence of singular laws.” Of course, provided that the principle of equality is respected, which is assessed on the basis of whether there exists a substantial identity of the legal situations to which the law applies.
Of course one can disagree with the political assessment of amnesty as a general interest, but in a democracy with a separation of powers it is the legislative branch, as the representative of popular sovereignty, that is charged with evaluating it, and it did so by voting in favor of the Law by an absolute majority.
However, as majorities, however democratic and broad, are not omnipotent and, in a democracy all powers are, at least in principle, subject to scrutiny, it falls to the Constitutional Court to pronounce on whether the exercise of popular sovereignty fits within the Constitution. This is what the Court has done, insisting on the idea of an open constitution that does not constitutionalize, but also does not prohibit amnesty.
“The function of amnesty is different, simply put, one could say it is about closing a chapter and opening another, with all the vicissitudes that this entails”
Another interesting question to debate is whether the general interest, or its appraisal by the legislature, can be conditioned by hidden party-political motives, in this case to facilitate the investiture of Pedro Sánchez. The legal answer is provided by the Constitutional Court in its ruling, stating that it does not fall within its remit, in its constitutional-oversight functions, to interfere in evaluating the ultimate reasons for the Law’s approval. It only has to decide whether it fits within the constitution.
The political response unfolds in another, more complex field. Whatever the PSOE’s reasons were for abruptly changing its stance on the amnesty law, it is worth noting that it was voted for by a set of parliamentary groups, with very different approaches on many issues, but they did converge on what we might call the objective of “turning a page” and passing the amnesty law to do so.
This reflection leads us to an even more complex domain, the one raised by the accusations from the right that the Government and its investiture partners bargained for partisan reasons against the national general interest. It is curious that from those positions it is considered legitimate to grant small political groups the power to influence and condition the direction of socio-economic policies—something that often occurs with the so-called hinge parties in many countries—yet this possibility is denied when it comes to agreeing on policies related to the political-territorial organization of the state.
Up to here, I consider these to be the conceptual and legal framework of the debate. My view is that the amnesty did indeed fulfill the function for which it was justified: to open a new phase in the social life of Catalonia and Spain that returns politics to the channels for solving a political conflict. That does not mean granting legality to the illegal actions of the leaders of the independence movement, which at the time were deemed criminal, nor discrediting the courts that issued the rulings, although some were, in my view, more than questionable. The function of the amnesty is another; plainly, one could say it is about closing one stage and opening another, with all the vicissitudes that entails.
“The amnesty has indeed fulfilled the function for which it was justified. That is, to open a new phase in the social life of Catalonia and Spain”
Just open your eyes and look beyond your own bubble, beyond your cognitive biases and convictions, to see that Catalonia has entered a phase of normality —a concept not welcomed by some independentist leaders— after a long period of social and political exceptionalism. I think this was and remains the general interest that justified and continues to justify the amnesty law.
Another matter is that, while Catalonia moves toward normality, Spain as a whole moves toward the deterioration of convivencia (coexistence). But it seems evident that this does not originate in the Catalan procés. The answer perhaps lies in the fact that some political forces have always claimed ownership of their conception of the general interest and wish to impose it on the entire citizenry.
