The elephant in the room was the referendum. He hovered over the talks between the PSOE and Junts in recent weeks. The socialists had privately warned their interlocutors that they would not give in on anything related to self-determination, while negotiations on amnesty continued. Until Thursday the news broke in Parliament: Junts and ERC, who have been at odds for years, joined forces to demand that Pedro Sánchez commit to "working" for a referendum - agreed, yes - if he wants to be invested president
The PSOE and the PSC came out immediately to make it clear that they weren't going there. Moncloa asked Salvador Illa to answer forcefully in the media. After the initial anger, the socialists take what has happened for granted, because they consider that it has allowed them to make clear the limits of an agreement. They interpret that if Junts continues at the table it is because he assumes them.
Until that stumble, Sánchez was very convinced that everything was going smoothly. Because? What was his optimism based on, beyond his tendency to not miss any opportunity? The reason is the contrast with the first steps to negotiate the presidency of Congress. Those initial contacts were marked by extreme mistrust. Together they demanded the amnesty law before the investiture and the PSOE rejected it.
The socialists had to force the rules so that the two pro-independence parties could obtain a parliamentary group, not only by lending them deputies, but also by doing something unprecedented: "drag" with them the votes assigned to each seat to achieve the required percentage. Together and ERC were far from fulfilling the conditions to enjoy the advantages of a group: visibility of intervention in the tribune, advisers, budget allocation, etc. But those of Carles Puigdemont could not give the yes to President Francina Armengol in exchange for something so flamboyant. They needed something more.
Together he presented a list of demands and the Socialists chose the use of co-official languages in Congress and rushed to change the rules of the Chamber. Saving the mistrust between the parties was the most complicated. Also manage the brutal competition between ERC and Junts. The republicans suspected that the amnesty was being negotiated behind their backs in exchange for the presidency of Congress for the PSOE. This would have left ERC in a very bad place, which took years to get the pardons. Finally the agreements were fulfilled. The Minister of Foreign Affairs is trying to include Catalan in the list of official languages of the EU and the head of the Interior has asked Europol to rectify the report that links independence with terrorism. These are express requests of Puigdemont agreed with the Socialists.
Thus establishing a climate of greater trust, the PSOE and Junts have exchanged documents on the amnesty. The key points are several. First, the statement of reasons for the law is essential for the Constitutional Court to validate it. The 1977 law did not have this preamble, but the Constitution had not yet been approved. For Junts it was more convenient to avoid it, since the reasons for the law for each are different. But you run the risk of not passing the CT cut. In this statement of reasons, the general interest will be justified in the name of coexistence and to return the conflict from the judicial to the political sphere, although the text is not yet defined.
The second key question is how to prevent the Supreme Court from making a different interpretation than what is sought, as happened with the crime of embezzlement, when it was intended that a lower penalty be applied to pro-independence defendants and the opposite happened. Although the cases are scattered through various judicial bodies, the Supreme Court will rule in the cases that correspond to it, such as that of Carles Puigdemont, and from there the jurisprudence will emanate. The clash between the Second Chamber of the court, which tried the leaders of the process, and the Sánchez Government is public and notorious. Even more so following the pardons.
Finally, it will be necessary to temporarily delimit the law, the facts to which it refers and enumerate the crimes whose criminal and administrative effects (from disqualifications to financial sanctions) will be extinguished. In other words, it is not about erasing them or forgetting them, they will be reflected, although they will not have consequences. Figures on the number of people affected are not clear. Some sources indicate that it could be between 200 and 300, although in the end this will depend on who the judges apply the amnesty law to. In principle, an attempt will be made to include the police and civil guards accused of the 1-O charges.
There are more difficulties. For example, how to deal with accusations of terrorism for alleged participation in the actions of the Democratic Tsunami, which led to riots in Catalonia following the conviction of the leaders of the process. Among the defendants are the former leader of ERC Xavier Vendrell or Josep Lluís Alay, Puigdemont's trusted man. Amnesty crimes of terrorism are important words, but the Prosecutor's Office of the National Court is advocating to refer the case to an ordinary court to estimate that, with sedition repealed, they can only be charged with public disorder.
All these details are being addressed discreetly and they are making progress. Hence the optimism of the negotiators, surprised by the discretion and seriousness of the other party... until the Parliament's resolution. But the question is whether Puigdemont has had enough with the amnesty law. The former president needs to go further than ERC to please his people. It is true that the amnesty is a step further than the pardons, but Junts spokeswoman Míriam Nogueras insisted that they have not "maintained the position" (six years in Belgium) only to obtain a pardon and not progress towards independence. The former president knows that he cannot ask for the referendum in exchange for the investiture, but he is looking for some reference to address the issue in the future.
Puigdemont, in his address on September 5, spoke of an agreed referendum as an objective, but did not make it a condition for investing Sánchez, but spoke of debating the matter during the legislature. Junts has conveyed to the Socialists that the Parliament's resolution did not change anything regarding what Puigdemont had said. The text is the result of the rivalry between Junts and ERC. In fact, the two parties boasted of having dragged the other into their theses with that resolution.
The mediation demanded by Junts is indeed a condition for the investiture, and also a stumbling block. The PSOE does not want it, let alone an international one, but the issue remains open. The socialists also want Puigdemont to make some gesture indicating that he rejects the unilateral way to achieve independence. And, in addition, the PSOE would like to agree before the investiture an agreement that goes further and guarantees at least some budgets. There is dialogue between the Boards and the Treasury on funding and other issues that could improve that ground.
If there is an agreement, the most difficult thing will be to reconcile the story of the PSOE and Puigdemont, without one undermining the bases of the other and without hurting ERC. Socialists know they have to take care of ERC to complete the puzzle. The pact will still take weeks to see the light of day, if at all. Today, independence commemorates 1-O, a day prone to haranguing, even though the tone of the Junts manifesto is more subdued than in previous years. And Sánchez will have to overcome 12-O, the Spanish national holiday, with the biggest booing of his life.
