There is a heated debate about whether the amnesty is constitutional or not. Personally I have always considered that it was. Also several political groups, although in 2021 the Congress Bureau, arrogantly claiming the exclusive prerogative of the TC, ruled on the unconstitutionality of a draft rule. Other parties, several university colleagues and part of the published opinion are also opposed. This debate, in general, has been about slogans, about headlines, not about arguments. I propose a few in favor.
Four seem to be the main fronts of opposition to the constitutionality of the amnesty and, in my opinion, little or no convincing. The first: amnesty is not included in the Constitution. This claim does not deserve attention. Indeed, purely literal arguments are not usually weighty arguments to expel a provision from the legal system. This has allowed for two tax amnesties. What's more, the Constitution does not establish, let's say, neither abortion, nor equal marriage, nor euthanasia. However, these three figures are fully valid and constitutionally valid.
Next, the prohibition of general pardons is brandished. Nor are we faced with a convincing objection. The pardon is an act of the Government – therefore, the prohibition of general pardons is logical; amnesty, on the other hand, is an act of the legislative power, that is, of the Courts. A governmental act has nothing to do with a norm, in this case, an organic law: their legal and political natures are diverse.
Linking to this refusal, the amnesty would, they say, be an attack on the division of powers. Another predicate fallacy. Without going into whether the actual functioning of the institutions responds to such a separation and without forgetting that the separation of powers is one of the key notes of the State of Law, it does not mean that the separate powers are equal. The legislative power, which dictates the laws, is unequivocally above the other two, since they must act within their parameters or mandates – the executive – and the other – the judicial – must follow the laws to resolve interpersonal conflicts and between citizens and public authorities. What's more: the legislative power, born of universal suffrage, has a strengthened legitimacy with respect to the other two branches of the State. This added legitimacy, characteristic of parliaments, is incontestable. In other words, if the legislature changes the law, it will like it or not, but, as the Supreme Court has recently reminded, the law is set by the legislature, not by judges or magistrates.
Finally, there is an attack on the amnesty that makes a certain mess: it would be an attempt against equality. Understanding the principle of equality as it is understood in the social and democratic State of law, that is to say, as non-discrimination, it is difficult to see the discrimination between those who can be amnestied and those who will not. At the outset, those who have not set foot in a court of law are not harmed in any way, or even affected. What happens to those who have committed crimes and are not granted amnesty? Well, what has historically happened more than 32 times in contemporary Spain and many times in the homes of our European partners and neighbors: that political motivation, even when there are blood crimes in the middle - right now in the United Kingdom for the Ulster–, is taken into account politically to overcome certain serious, let's say, institutional crises. There is therefore no discrimination, given the exceptionality of the historical moment.
I hope to have shed some light on this, logically, turbulent landscape.
