Given the probable failure of Feijóo in his inauguration scheduled for the end of the month, Sánchez's attempt to form a parliamentary majority that supports his will open the way. The votes of Junts and ERC are essential for this. Puigdemont and Junqueras are now competing over who sets the highest bar, but amnesty and self-determination are on every menu. Given the evidence that the latter is out of the question within the constitutional framework, there remains the possibility of accepting the former, granting a victory that both parties could offer their electorates. Beyond the debate on whether it is fair or not, the advantage that a pact with Junts could have would consist in the normalization of a political party that will continue to play a relevant role in Catalonia and the elimination of a highly toxic element for our politics , as is the personal situation of Carles Puigdemont.
Our Magna Carta only speaks of pardons, attributing to the King the "right of pardon in accordance with the law", to prohibit at the same time "general pardons" in its article 62. But nothing is said about amnesty. Our constituents did not want to enter that garden, despite being very present in their memory, since the amnesty was a repeated request from the anti-Franco opposition that was granted through the laws of 1976 and 1977.
And possibly it was not wanted to contemplate it because it is a legal figure of a political nature, normally associated with a change of regime, which would lead to not foreseeing it within the framework of constitutional continuity. It is not surprising, therefore, that those who support it most enthusiastically are the pro-independence parties or those grouped around the Sumar banner, which in one way or another claim the end of the “78 regime”. There are also some respectable experts who defend its constitutionality, arguing that since it is not prohibited, it should always be accepted if a different legal path is followed from that of pardons, such as the approval of an organic law that defines and justifies its scope. However, the majority of constitutionalists, even among those with a progressive tendency, find its admission difficult, since it means violating the principle of equality before the law, by denying the courts the possibility of prosecuting in certain cases crimes that remain in force. The fact that the composition of the Constitutional Court has recently changed does not guarantee that it will endorse it. And there is no worse scenario than an amnesty assumed by the independence movement that is revoked after two or three years.
The PSOE has a high responsibility here and should not accept as a magic formula a legal solution of dubious constitutionality that on the other hand it rejected in 2021. If the government option is to agree with the independentistas, it will do well to seek another legal route, perhaps less to the liking of Junts and ERC, but that it be sustainable and not explode in our hands in a while.
In any case, since the State cannot be left unprotected against actions such as those that took place in 2017, the decriminalization of sedition produced in 2022 and the legal formula that could be agreed upon now should be followed by an appropriate regulation of crimes against the constitutional order. This would also politically and morally justify the entire reform, since it would mean acknowledging that our legal system had not adequately provided for the classification of what was done, but that this should not mean leaving the way clear to do it again.
