"It's the Way that You Do It"

An essay on amnesties

"Prison Cell" by Still Burning is licensed under CC BY-NC 2.0.

Today’s column will discuss Spanish Prime Minister (PM) Pedro Sánchez’s controversial amnesty deal with Catalan separatists who tried to break the country’s Constitution in 2017; and amnesties in general. If you want the “too long; didn’t read” (TL;DR) version, I refer you to the words of a 1930s jazz song that was reborn as a pop hit in the 1980s: “It ain't what you do, it's the way that you do it.”

If you’re still here for the long version, amnesties can play a significant role in liberal democracies if they are designed properly. They are defined as a decision not to prosecute a certain group of people for crimes believed to have been committed in the past. They are different from pardons, which forgive convicted criminals.

I realise that it is a stereotype to mention dictator Francisco Franco in articles about contemporary Spanish politics. Please forgive me for doing the same today! When Franco died in 1975, it was fairly obvious that Spain was going to follow the Portuguese example and become a democracy. There was a significant problem. What should be done about the people who had committed war crimes in the Spanish Civil War between 1936 and 1939?

The youngest people who were vulnerable to prosecution for war crimes were mostly in their 70s and 80s by the time the dictator died. Many members of the armed forces and police would have been horrified by any attempt to prosecute these people, who were often their former commanders or their role models. In some cases, they would have been direct family members.

The leaders of Spain’s transition to democracy took the difficult decision to pass an amnesty law in 1977. The law freed political prisoners, but it also offered impunity for war crimes during the Civil War. The underlying idea was to buy support across the political spectrum for the 1978 Constitution, which was eventually backed by nearly 92% of voters on turnout of 67%.

Support from Spain’s armed forces for a constitutional monarchy was fragile at the beginning of the transition to democracy, as the world saw when a Civil Guard lieutenant colonel called Antonio Tejero led a failed coup attempt in 1981. He held members of the Spanish parliament hostage for 22 hours. Other army units stayed in their barracks; and former King Juan Carlos denounced the putsch on television. Tejero ended up spending 15 years in prison.

The amnesty deal of the 1970s traded a decision not to prosecute past crimes for support for democracy from people who might not have been quite so willing to back a new system in other circumstances. It was negotiated from a position of strength, given the wide consensus across Spanish society that the country had to modernise and become a democracy.

Sánchez’s deal with Catalan separatists looks very different. The Socialists never mentioned amnesties during the election campaign or in the party’s manifesto ahead of the general election on 23 July. Indeed, Sánchez claimed that amnesties would be “unconstitutional” and “illegal” as recently as two days before the election.

This argument is a strong one: although the 1978 Constitution was built on the back of an amnesty, it never mentions the possibility of future amnesties. In 2021, the Socialists pardoned Catalan leaders who didn’t run away after their failed self-coup. Leaders of the party publicly argued at the time that pardons (which are mentioned several times in the basic law) were constitutional in a way that amnesties wouldn’t be.

All that changed on the night of the elections in July. Although the centre-right Popular Party (PP) won the most seats, it fell short of expectations and its hard-right allies from Vox did much worse than expected. As the night went on, commentators gradually realised that Sánchez had a better position in a fragmented parliament than Alberto Núñez Feijóo of the PP; and that Together (Junts), a hard-right Catalan nationalist party, would end up as a kingmaker. The party’s former leader, Carles Puigdemont, fled to Brussels in 2017 after declaring independence and almost immediately putting the declaration on ice.

The messaging from the Socialists changed radically in the new circumstances. Amnesties went from being unthinkable to normal politics, almost overnight. Suddenly, politicians should decide which crimes should be prosecuted, rather than the judiciary. To add insult to injury, when the Socialists announced a deal with Together in early November, it included populist measures to set up parliamentary commissions with oversight over the formerly independent judiciary. Many critics have claimed this aspect of the proposal threatens both the rule of law and the separation of powers - quite correctly in my opinion.

One clear difference between the proposed amnesty of 2023 and the one of 1977 is what is expected from the people who receive the amnesty. Elderly war criminals were told that they could die in their own beds instead of prison cells, but they and their supporters were expected to back a new democratic system in return.

However, there is no systemic element to the current proposal. Together’s unrepentant leaders are just expected to vote for the Socialists, without necessarily committing to Spanish democracy in return. Selling immunity from prosecution in return for parliamentary votes looks very much like corruption to many in Spain. Over the last decade or so, the country has been rocked by many kickback scandals dating back to the boom years up to 2008, as we have mentioned in a previous essay, which makes the deal smell very bad to many voters.

Defenders of the deal will argue that it does in fact have a systemic element. First of all, it keeps Vox out of power. Unfortunately, Sánchez undercut this argument when he publicly argued in 2018 that former Together leader Quim Torra was a xenophobic member of the far right.

Secondly, the deal is said to pacify Catalonia. Unfortunately, Catalonia had already been pacified. Support for independence collapsed when a section of the population realised that Together had failed to deliver its pie-in-the-sky promises and switched its support to more pragmatic options. The party got less than 0.4m votes in July (around 1.6% of the total vote in Spain) and is no longer in power in Catalonia after coming third in the regional elections in 2021 with 0.6m votes (20% of the total). Why does Spanish society need to appease such a small number of disgruntled voters?

Also, if the courts over-rule the amnesty deal, or aspects of the amnesty deal, Catalan nationalists will be able to drum up popular anger and revive the movement. There are precedents here. The Socialists promoted a new regional Statute for Catalonia in 2006, which was backed by a referendum in the region. It defined Catalonia as a “nation.” The PP issued a legal challenge. The Constitutional Court of Spain struck down several clauses in 2010 and said that the use of the word “nation” had no legal standing. Mainstream Catalan nationalists were pivoting to populist separatism around this time and they build emotionally explosive narratives around the court’s decision, which was unpopular in Barcelona and the Catalan countryside.

Incentives

One aspect of the 2023 deal that hasn’t been discussed nearly enough in Spain is the terrible incentives that it creates. First of all, narcissists are often drawn to populist politics. Why should they bother sticking to inconvenient laws that were designed for the little people? If a narcissist is prepared to bet that his or her party will always get enough votes to be useful to the executive branch, there is a fair chance that someone will be prepared to bail him or her out for cutting corners in the future.

Secondly, actual gangsters and corrupt business executives might be tempted to seek elected office in the future if trading amnesties for votes becomes normalised. If that sounds far-fetched, it is worth remembering that there are already precedents in Spain. Thirdly, power corrupts. The threat of prison has just become much less severe for any mainstream Spanish politicians who are tempted to bend or break the rules, as long as their parties have a chance of holding the balance of power in a fragmented parliament in the future.

To return to jazz/pop song I mentioned at the beginning of this essay, the problem isn’t amnesties in general, it is this particular amnesty. It is possible to imagine a well-designed amnesty. Suppose the PP and the Socialists entered a national unity government with a huge majority (and, yes, I realise this is very unlikely given the current mood); and then offered an amnesty deal to Together and Republican Left of Catalonia (ERC) from a position of strength. In return, the Catalan separatists would be expected to apologise for their bad judgement calls and publicly promise to abandon the “unilateral” (in other words illegal) path to independence. Wouldn’t that be better than what we have now?

In the near future, Sánchez’s alliance looks very fragile. I suspect he has made promises he won’t be able to keep. A clear majority of voters hate the details of the deal with Together and many have taken to the streets to shout their disapproval, while a few have rioted. Meanwhile, the PP controls the Senate (Spain’s second chamber); and legal experts are up in arms about a populist threat to judicial independence. Getting an amnesty deal onto the statute book will be hard enough; but even if that happens it could be overthrown by the courts. If the amnesty proposal fails, Together will be able to bring down the government on a moment’s notice.

The Socialists have tried to hype up Sánchez’s chances of governing to 2027, but I see that as being wildly optimistic. I think the PM is canny enough to get a budget deal for 2024 through in the months ahead, but after that his position is likely to slowly crumble as the political scene gets increasingly bad-tempered. Many of the PM’s critics will try to sell the his extreme lack of political capital as illegitimacy. My distinction between the two will look increasingly less important if and when judges strike down key elements of Sánchez’s deal with Together as unconstitutional.

If Spain goes to elections in 2024 (or even 2025), all eyes will be on the opposition PP. Will Feijóo or his successor as leader be able to successfully channel popular anger against Sánchez’s controversial dealmaking? And will it be able to do this while distancing itself from the increasingly hysterical anti-Socialist antics of Vox and the far-right headbangers who riot at the end of anti-amnesty demonstrations? It is certainly possible, but given the party’s poor strategic positioning over the last few years, I think continued gridlock is probably going to the base case for Spain.

Having said that, the situation on the ground in Catalonia looks hopeful for institutionalists. Regional elections are due by March 2025 and the local branch of the Socialist Party (which currently sits on the border between populism and constitutionalism) is ahead in the polls. Support for Together, which has often promoted firebrand populist rhetoric to die-hard Catalan nationalists in the Catalan-speaking countryside outside Barcelona, has continued to fall in the polls since its pivot to pragmatic dealmaking with non-separatists.

I suspect Sánchez will be tempted to run a national election at the same time as the Catalan vote. Winning in Catalonia could soften the blow for the Socialists in the rest of Spain if the PP manages to get its act together for a moderately competent campaign at a national level.

Catalan separatists can be very irritating on the internet. The comments are closed. Sorry! Please note that next week’s column will come on Sunday instead of Saturday due to personal logistics. See you next week!

Further Reading

How Democracy Ends by David Runciman

Further Listening

A recording of a recent Twitter Spaces discussion on the election and the amnesty with Matthew Bennett of The Spain Report

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