On November 30th, at CEU Cardenal Herrera University, the professor emeritus of Constitutional Law and member of the research team on the Rule of Law in Europe, Manuel Martínez Sospedra, gave a lecture on the amnesty bill proposed by the Spanish Socialist Workers’ Party and its legal implications.
During the talk, organized by the Philosophy and Politics Club “Abantos” at UCH CEU, Prof. Martínez Sospedra discussed various legal and constitutional aspects of the potential amnesty. These included the constitutionality of the proposed law, possible ramifications, comparisons with European countries, and the motivation behind the law.
Firstly, the professor addressed some legal peculiarities of the bill, particularly noting that despite eliminating the criminal liability of those granted amnesty, the proposition says nothing about their civil liability. He also pointed out that the legislative body (which would approve this norm) exhibits arbitrariness by ignoring the victims of the amnestied crimes. This is one of the reasons why Prof. Martínez Sospedra argues that the constitutional principle of equality is violated.
Regarding cases in other European countries, the professor mentioned that in countries like Switzerland, France, Italy, or Portugal, their constitutions explicitly cover the issue of amnesty with a specific legislative process created ad-hoc for such cases. The Spanish Constitution of 1978 says nothing about these cases, leading to a lack of a specific process. In this regard, he notes that the authors of the bill are aware of this legal gap and exploit it to their advantage. He also discusses how proponents of amnesty claim it is supported by Constitutional Court jurisprudence, citing previous examples such as the 1977 amnesty, although all examples are pre-constitutional.
At this point, Prof. Martínez Sospedra raises a crucial question: Can an amnesty law be proposed that does not conflict with the Constitution? According to the speaker, theoretically, yes. However, the reality must be considered: Spain has an extremely protective constitution (resulting from the transition from autocracy), and the absence of amnesty clauses leads to the conclusion that, for an amnesty to be constitutional, there must be an enabling clause, which is not present in this case.
Unlike the cited European cases, Spain lacks an enabling clause, resulting in no checks and balances against parliamentary arbitrariness. In other states, the head of state, the upper house, or other entities can veto an amnesty, which is not the case in Spain due to this legal gap.
Given the precedents, both from the immediate environment and the Spanish Constitution itself, the proposed amnesty is not constitutional. This is due to the lack of enabling clauses, arbitrariness, the violation of constitutional principles, and the absence of a mechanism enabling these processes under the necessity principle.
Moving away from legal discussions, Prof. Martínez Sospedra poses another question: Can an amnesty law be politically legitimate if it cannot be approved solely by the Socialist Party? According to the speaker, the answer is no. This is because the Spanish Socialist Workers’ Party campaigned openly denying the constitutionality of the amnesty, making it neither politically nor democratically legitimate.
Finally, regarding the procedural legitimacy of the amnesty, Prof. Martínez Sospedra returns to the previously mentioned lack of an enabling clause and a process that balances parliamentary arbitrariness, specifically in the Congress of Deputies. Thus, he concludes that the amnesty bill lacks constitutional, procedural, or political legitimacy.
