Albert Noguera – The Past Always Triumphs: Notes on a Spanish Amnesty

Spain’s democracy suffers from the fact that it is still dominated by its absolutist and fascist eras.

Albert Noguera is Professor of Constitutional Law at the University of Valencia. He is a member of the Ruptura group.

Originally posted in Spanish in El Diario

Translated and edited by BRAVE NEW EUROPE

Is the Spanish post Franco regime of 1978 reformable in democratic terms? This is the question we ask ourselves with each new attack on democratic freedoms in Spain. We asked it again a few days ago with the order to imprison the rapper Pablo Hasel for insulting the Crown . And we will ask it again in a few weeks when the same majority that, in 2011, 2016 and 2017, refused to reform the law granting de facto amnesty to Francoist torturers and murderers, will vote against granting amnesty following the state reprisals against the Catalan independence referendum of 2017.

In the last session of the Catalan state parliament, prior to dissolution for elections, the Catalan nationalist parties ERC, JxCat and CUP approved a resolution calling on the the Spanish national parliament to pass an amnesty law to eliminate any responsibility for the acts linked to the struggle for self-determination carried out since 1 January 2013 and for which there are more than 2,850 reprisals. Accordingly, on 15 March, the aforementioned parties, with the support of the Catalan cultural organisation Òmnium and other entities, will present a proposal for an amnesty law in Spain’s Congress which, if there are no surprises, will be rejected.

Answering the initial question requires: first, to define what it means to democratise the ’78 regime; and second, to see, on the basis of the above, whether this is possible.

What does it mean to reform the ’78 regime democratically?

Among other things, it means reversing the current method of resolving conflicts between overlapping social eras.

Every society is the partial sum of superimposed pre-democratic and democratic social eras. Despite the fact that constituent processes take place in them that claim to be a rupture of the temporal continuum, a clean break between social eras, their advent never manages to make the previous era disappear completely. All social eras in any society are, inevitably, an interweaving of the present with the past. Belgium, the Netherlands, Sweden or the United Kingdom are modern capitalist states, but the monarchies that persist in them are neither a product of modernity nor a necessity of the capitalist mode of production, but a result of their history, that is to say, of the interweaving of their successive eras. This coexistence of past and present, of pre-law and current law, in the same historical period is even more evident in those states that have made the transition from a dictatorial political system to a liberal democratic one without a clear break: this is the case of the Spanish transition. As a result, Spain is a state in which pre-democratic and democratic institutions, practices, values and discourses overlap in our political and social reality.

Governing a society consists of managing the conflict between its social times. Conflicts between pre-democratic and democratic times, prioritising one over the other. But also today, between democratic and post-democratic social times. Depending on which time is prioritised, we will speak of progressive or reactionary governments.

Is it possible to democratise the Spanish regime?

The ruling social democratic PSOE’s usual option has been and continues to be reactionary. In the economic sphere, its support from the 1990s until today for the EU’s neoliberal treaties and its privatisation and free market policies has been a way of prioritising the post-democratic social time of neoliberalism over the inherited and still surviving democratic social time of the social state.

In relation to the monarchy, their constant refusal at the Congressional level to create a commission of enquiry into the corrupt actions of the king emeritus implies prioritising the pre-democratic social era of absolutism, where the king was not subject to anyone or anything, over the parliamentary democratic social era with the existence of reciprocal control mechanisms between constitutional bodies and institutions. Or its refusal to hold a referendum on the monarchy implies prioritising the will of the generations of the past over the right to decide of those of the present.

The presentation of the amnesty bill in March will once again force the government to have to manage a new conflict between pre-democratic and the overlapping democratic social eras. The amnesty is today, in Spain, a clear example of schizophrenic reification within the same legal instrument of two overlapping social eras. It is, at the same time, legal pre-law and (supposedly) illegal law.

On the one hand, it is pre-law. The amnesty included in the pre-constitutional Law 46/1977, by which it is forbidden to claim responsibility for crimes committed against the exercise of rights during Francoism, is recognised by the PSOE, the right wing and the judiciary as a norm with full legal validity today. These parties have voted, repeatedly in Congress, against withdrawing its validity. Likewise, the Supreme Court (judgement of 27 February 2012), the State Attorney General’s Office (internal order on 30 September 2016) and the Prosecutor’s Office of the Audiencia Nacional have invoked this law to prevent judicial investigations against torturers.

On the other hand, the amnesty included in the bill to be presented on 15 March is considered by the same actors as illegal law. This will lead to its rejection by the right wing and the PSOE on the grounds that amnesty is (supposedly) unconstitutional (and I say supposedly because the opposite interpretation is possible). The PSOE claims that the lack of explicit mention of amnesty in the Constitution and the suppression in the 1995 Penal Code of the reference to amnesty in art. 112.3 of the previous one show that the silence of the constituent assembly should be interpreted as its prohibition in the State. “Amnesty has no place in the Constitution”, they point out.

This schizophrenic double institutionalisation of amnesty, which means that someone can claim that the same figure is both legal for some and illegal for others, can only be explained by understanding amnesty in Spain as a reified coexistence of two pre-constitutional and variegated constitutional social eras.

Resolving this conflict between pre-law and law in a democratic key would require a double legislation: on the one hand, to deconstruct Franco’s social era through a reform of the law of 1976 which would allow those who committed crimes during Francoism to be tried; and, on the other hand, to organise a new future democratic social era through the approval of the amnesty for the reprisals against those Catalans who supported the independence referendum, which, constitutionally, can be interpreted as possible. Although there is no express statute in the Constitution allowing the granting of amnesties, neither is the granting of amnesties prohibited. Moreover, from the provisions of Article 9.3, which states: “The Constitution guarantees… the non-retroactivity of punitive provisions which are not favourable or which restrict individual rights…”, it can be deduced, in the opposite sense, that the Constitution allows provisions in the field of punishments of a favourable nature to be issued, and consequently, amnesties to be granted. This route, unlike that of pardon, would open up a future opportunity for a dialogue-based and democratic solution to the Catalan conflict, insofar as it would carry out a task of reciprocal recognition of the two parties that is indispensable for initiating a negotiation with a real will to find a political solution.

However, once again the social democratic PSOE is going to manage the conflict in a reactionary manner, protecting the pre-democratic social past and denying the opening of a democratic social future. In the Spanish regime created in 1978 the past always wins.

All this shows that as long as there is a “progressive” government where the PSOE is the hegemonic force, the democratisation of the regime is not possible. Only with a sufficient majority of the parties of the plurinational bloc in Congress and strong pressure from the streets would it be possible to reverse the current method of conflict resolution between overlapping social eras and democratise the regime. The key question is whether or not this is possible with the existing electoral system.

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