Spain’s Parallel Power

In this respect, Dowling tells me, “a major governmental issue in Spain in recent years has been leading conservative judges acting as a kind of parallel power, i.e. an undemocratic power which intervenes in the political life of the country.” This has taken various forms, such as the series of spurious “lawfare” cases brought against ministers in the PSOE-Unidas Podemos coalition over the last four years. Still, probably the clearest example is the criminalization of the Catalan independence movement in the aftermath of the 2017 referendum. For the Spanish government then led by the right-wing Partido Popular, as for its allies in the judiciary, proindependence forces had to be made an example of — having used mass popular mobilization, as well as their control of regional and local government in Catalonia, to defy the central state’s attempts to suppress the largely symbolic referendum.

As professor of constitutional law Joaquín Urías notes, in relation to the nine convicted Catalan leaders: “the Supreme Court invented a concept of sedition that departs from the penal code, and which had never been used before or since, under which anyone who organizes protests that can be qualified as peaceful civil disobedience is to be punished with a dozen years in prison.” Nor did the judicial overreach stop there: a number of protesters have received prison sentences; officials have been barred from office; and fines have been issued that collectively run into the millions of euros, while hundreds more proindependence supporters are still awaiting trial for a range of offenses. These include the twelve activists whom reactionary judge Manuel García Castellón is seeking to try on trumped-up terrorism charges in the Audiencia Nacional, Spain’s highest criminal court.

Since September, the largest associations of both judges and public prosecutors in Spain have begun openly campaigning against the potential amnesty, using polemical language and arguments largely indistinguishable from Partido Popular talking points. In an interview on public television, the president of the Professional Association of Magistrates, María Jesús del Barco, claimed the amnesty “looks to liquidate the separation of powers” and “to deny the existence of the judicial power,” adding that it “is clearly unconstitutional” given that the 1978 constitution “prohibits general pardons and this [legislation would] go further than that.”

Meanwhile, the association sent a published letter to the European Commission in which it compared the potential amnesty to measures taken in Poland and Hungary against the independence of the judiciary. It called on the European Union to intervene, as it had before in these countries, if the law is passed. Even the Supreme Court judge overseeing Puigdemont’s case, Pablo Llarena, has involved himself in the public debate, claiming that negotiating Sánchez’s investiture “does not seem to be a strong enough reason to pass an amnesty law.”

Crucially, La Vanguardia’s associate director Lola García also reports that Llarena is set to launch formal queries on the constitutionality of the legislation to both the Spanish Constitutional Court and the European Court of Justice if the amnesty comes into effect. This will allow him to suspend its application while the former examines the case, a period that could last up to two years — though the court would be under pressure from the government to hear the case sooner.

Negotiating the Law

Joan Queralt is a jurist and a senator for ERC, the current party of government in Catalonia. He tells Jacobin that this potentially protracted battle in the courts points to the need for “a rigorously designed law which leaves as little room for interpretation as possible.” Queralt also insists that “the government will have to make full use of the mechanisms of administrative justice it has at its disposal, such as its control over the public prosecutor’s office via the attorney general, so as to begin dropping the charges against members of the independence movement once the amnesty law is passed.”

He moreover rejects Del Barco’s argument that the very idea of an amnesty is unconstitutional, arguing that “it is a conceptual error to conflate a pardon, which is issued by executive decree to specific individuals, with a full amnesty law passed by parliament.” The latter, Queralt explains, is “a response to a grave political conflict,” under which the mass suspension of criminal and administrative law is justified “on the basis of the exceptional nature of the historical moment.

In this respect, key to defending the legislation’s constitutionality will be its preamble, which must set out a clear rationale for why this type of extraordinary measure is justified in the case of the Catalan independence conflict and does not simply represent an arbitrary erasure of criminal offenses. Writing in CTXT, Urías notes that “the most direct way” to do this would be to cite “the politicization of the courts” and “unjustness of the legal norms applied” during the 2017 standoff. Yet, he also recognizes that any acknowledgement of judicial activism and state repression as one of the primary drivers of the conflict is a step too far for an established center-left party such as PSOE.

Indeed, for Sánchez it is a major political gamble even to accept an amnesty. Polling shows that it is an unpopular measure across much of Spanish society — including among a majority of Socialist voters outside of Catalonia itself. In this context, PSOE has insisted instead on framing the amnesty’s legal rationale as providing the means for “a reconciliation between Catalans,” as well as between Catalonia and the rest of Spain. Here, the validity of the criminal prosecutions is not itself directly questioned, but rather characterized as a political barrier to resolving the conflict.

This is potentially acceptable to Junts and ERC, but both want to avoid any language that suggests an amnesty is a conclusion to the ten-year-long campaign for Catalan independence. “An amnesty by itself does not resolve the conflict or end anything,” Queralt argues. “Instead, it would reset the political scoreboard to zero so as to allow for a new stage of negotiation on self-determination from a level playing field — with nobody on our side either in jail, exile or barred from public office.”

In this sense, the final text will have to balance what is acceptable to all sides politically with what is legally sound and can stand up in front of the Constitutional Court. But according to Asens, a further requisite is also necessary to ensure the law’s constitutionality, i.e. that it is “two-directional.” This means that the amnesty must be equally applied to the 132 police officers facing trial over the baton charges against those peacefully defending the voting stations during the 2017 referendum, as well as potentially some of the officers involved in the violent police response to the 2019 riots around the sentencing of the Catalan leaders.

This touches on another outstanding issue — the scope of the amnesty. PSOE’s initial negotiating position sought to restrict it to public officials, leaving rank-and-file activists out of the equation — something Queralt damns as a “self-amnesty” for the political class. According to news reports, ERC and Junts are now open to accepting the inclusion of the police in the amnesty in exchange for a broader legislation, which would incorporate activists, but its exact parameters remain unclear. “You have to remember that [in the wake of the Catalan leaders’ sentencing] the streets of Barcelona were burning,” Dowling notes — pointing to the difficulties for Sánchez in accepting that some of the offenses arising from the 2019 riots be included.

The Political Agreement

These issues around the preamble and scope of the amnesty still need to be resolved. But in reality, the questions that could derail a deal have more to do with the wider political agreement. Any final deal will require that Puigdemont and Junts assume, at least implicitly, that independence is much more of a longer-term prospect and that the party must reengage in routine institutional politics within the Spanish state.

This is something ERC has already done over the last four years as it developed a working parliamentary alliance with the coalition government in Madrid, amid accusations of selling out the cause of independence from hard-liners. While the two Catalan parties now have the possibility of extracting significant concessions from PSOE even beyond the amnesty, such as increased financing for the regional government, Puigdemont also faces the dilemma of how to bring his base with him — as part of it will see any compromise with Sánchez as a betrayal of the 2017 referendum’s supposed mandate for independence.

In a speech in early September from exile in Brussels, Puigdemont insisted that only a “historic settlement” would see him move away from his current line of strict opposition to the Spanish authorities. Yet he was also careful not to specify any red lines that he could not walk back later. This balancing act was also on display in late September when Junts and ERC passed a rather ambiguously worded resolution in the Catalan Parliament, which insisted that a commitment on “taking steps towards a [new] referendum” — but, crucially, not a referendum itself — was a necessary condition for their backing of a new coalition government.

In part, this more pragmatic line also reflects a changed political situation. While Junts and ERC today hold the balance of power in the Spanish legislature, Sanchez’s spectacular electoral victory in Catalonia in July saw the Socialists a full ten points ahead of the combined vote for the two proindependence forces. In this context, given that Sánchez is already facing high-profile internal opposition to his acceptance of an amnesty (including from the party’s historic former leader, Felipe González), for PSOE, any mention of the right to self-determination or a future referendum in the agreement is an uncrossable red line.

Journalist Lola García reports that a compromise framework now seems to be emerging under which a Sánchez administration would recognize Catalonia’s status as a “national minority within the Spanish state.” This is a category recognized under EU law — yet the exact rights that this conferred on Catalonia, potentially including the right to self-determination, would be left open for future negotiations. Junts and ERC are holding out for an international mediator to oversee these talks, as well as to monitor the implementation of the investiture agreement — something so far ruled out by PSOE because of its implication of Spanish state failure.

Sánchez has until November 27 to form a government, with none of the parties involved in the negotiations likely to benefit much from potential repeat elections in January. As the clock ticks down, other agreements still also need to be reached around the transfer of control of the Catalan railways to the regional government, a key ERC demand, as well as on the scale of the increased financing for the Catalan government. The worry is that if talks do go down to the wire, they will turn into a dangerous game of chicken, not just between PSOE and the independence movement but also between Junts and ERC — with no one wanting to be painted as having conceded first.

Looking Forward

Even if a government is eventually formed, questions remain as to its ability to last a full four-year term based on such a fragmented parliamentary majority. It would depend not just on the two Catalan proindependence parties, but also on three other regional nationalist forces. It will also be a less progressive majority than the previous term, with the support of center-right Junts and the Basque Nationalist Party now vital for passing any legislation. In this respect, while the PSOE-Sumar programmatic agreement, reached on October 24, includes important social measures around reducing the working week, further increasing paid parental leave, and a large-scale public housing program, the new coalition’s margin for delivering on such promises will be very tight. Yet as political analyst Mario Rios told Jacobin in July, there is a broader consensus among these parties for “democratic reforms of state institutions, for example around the country’s politicized judicial power.” It may be that the coalition’s agenda will be more focused in these areas.

Last December, the coalition did manage to tip the balance of power on the Constitutional Court by forcing through the appointment of new judges — though only after the court’s previous conservative president sought to block the Senate voting on the nominations, in what Sánchez described as a “crude plot” to “muzzle parliament.” As Asens notes, this will be vital in terms of the judicial defense of the amnesty: “The Constitutional Court, which was at the origin of the problem in Catalonia with its ruling against the 2010 Catalan Statute of Autonomy, could now be part of the solution, as it has a progressive majority.”

Yet beyond that, both the Supreme Court and Audiencia Nacional continue to have artificial conservative majorities due to the Partido Popular preventing their usual turnover from taking place. A priority for a new Sánchez-led government must be to break such entrenched conservative state power. It is a matter of basic democratic hygiene.