Alberto Núñez Feijóo knows that the PP has lost the parliamentary battle over the amnesty law (approved on Thursday in Congress by 177 votes in favor and 172 against). He knows that the wear and tear that Pedro Sánchez has accused of being forgotten is beginning to be paid off. And he knows that, despite the inflamed speeches of the right and the extreme right, the debate on the street is over. But he also knows that Justice plays on his side. Hence now he entrusts to judges and courts what his party has not managed to stop either in the Courts or on the street. And this is how he has made it explicit, unequivocally, by leaving the door open for the law not to be applied: “Legally, it will be a matter for the courts to defeat the amnesty.”

He was not speaking in vain because almost at the same moment that he uttered these words last Thursday from the tribune of Congress, the party began in the judicial sphere. The Supreme Court prosecutors delivered to the State Attorney General a report, which no one had asked of them, on criminal oversight to express their opposition to applying the law to embezzlement crimes and lifting the arrest warrant against Puigdemont. A document of more than 100 pages in which judicial sources have seen more political arguments than legal ones in a paper that should be foreign to them.

And here is a sample of that text: “The truth is that the issue of amnesty was not part of the electoral debate, so citizens were neither informed nor consulted about it. It is not surprising, therefore, that the rejection of it is widely held by the majority in Spanish society and that its use as a currency of exchange has generated a climate of tension and confrontation within it. Furthermore, some political formations attended the elections with electoral programs and messages in which they either expressly or tacitly opposed the approval of any norm that would grant amnesty to the participants in the events included and openly denied their constitutionality. , or omitted any reference in those to granting this aspect of the right of grace to those people. In particular, the abrupt and unexpected change of opinion in the political approach of a party whose candidacy obtained a significant number – but not a majority – of votes and seats in the two legislative chambers, which went from being totally against the approval “from any rule that granted an amnesty to people involved in criminal acts related to the process, before the election day of July 23, to maintaining just the opposite on immediately subsequent dates.”

But there is more: “Such a change of position [del PSOE], justified as necessary by the electoral result produced (in the words of some political leader [Pedro Sánchez]this was intended to make necessity a virtue), cannot be ignored to legally assess not only whether any norm that approves an amnesty is in accordance or not with the Constitution, but also, going down to the detail of the specific case, if the norm can may or may not be constitutional, as long as it responds to a general or national interest that needs to be protected to overcome an exceptional political situation, or it obeys exclusively reasons of pure political convenience to form a parliamentary majority of government.

That is, prosecutors affirm that Pedro Sánchez’s statements can be used to deduce the legality or illegality of a rule. Clearer: judging the legality or illegality of an act based on the political positions of the person behind it or the sympathies it arouses in prosecutors.

The legal value of a political vision

Throughout their entire report, the prosecutors persist in giving legal value to a political vision and insist on the unconstitutionality of the norm because it was not an electoral promise, because there is broad social rejection or because it has been agreed with parties that have militants. who can benefit from it.

According to the different parties that have supported the norm, none of the above arguments “has the slightest legal value”, this in addition to the fact that “it is worrying to know that there are Supreme Court prosecutors capable of conditioning the recognition of rights and freedoms according to to their political prejudices.” And the few legal arguments argued in the report lack a minimally coherent position in that it states that the norm is unconstitutional, but approves its application to those convicted or prosecuted for the crimes of disobedience and public disorder.

Furthermore, the question that hovers over these days in the public sphere is whether or not the application of the law can be defeated/suspended, as Feijóo has suggested. The answer is yes because those judges who consider that the rule may conflict with the Constitution or European law may, within a maximum period of two months, raise a question of unconstitutionality before the Constitutional Court (TC) or a preliminary ruling before the Court of Justice of the European Union (CJEU) and in this last scenario the application of the law in that specific case is paralyzed. It is taken for granted that in the case of the procés and in that of Puigdemont, the Supreme Court will go to the CJEU, which will delay the application for a minimum of a year and a half between the eight or so months that it will take for the admission to be processed and the same number of months to resolve the question. Despite everything, the Government trusts that the Supreme Court applies the rule “for fear of being corrected by the Constitutional Court and the CJEU.” A different issue is the time it takes to get to that screen.

“He who can do, let him do…”

And the law is now entering unknown territory that is unrelated to politics because it is the judges who have the last word and the opportunity to put an end to a norm that has raised the tone of political and judicial debate like never before. So much so that for the first time in democracy, judges and magistrates have not only given free rein to the disqualifications before radio and television microphones, but have also demonstrated at the doors of the courts before it was written and in what political sphere of the left, was understood as strict compliance with the slogan dictated by José María Aznar against the law in November 2023: “Whoever can do, let him do; “Whoever can contribute, let him contribute.”

The one who has been able to do the least because he lacks the necessary majority has been Feijóo who, sheltered behind the robes and the appeals before the TC announced by the Autonomous Communities, has now decided to calmly take the power to take the text to the Constitutional Court before three months. He trusts that the first movements of judges and prosecutors will enlighten him and also that the 9J elections will pass, since in this matter they are not pressured by the fierce competition with Vox, which lacks the necessary deputies (the minimum is 50) to present appeals to the TC.

The Moncloa, for its part, concludes a debate that it considers has been validated by the 12 million Spaniards represented by the parties that have supported the law, in addition to the Catalans in the regional elections last May. The socialists consider the objectives for normalization in Catalonia fulfilled and await, with apparent tranquility, the result of the European elections and for the question about the configuration of the new Government to be resolved to know if the legislature continues its course and the approval of the General State Budgets for 2025. Everything is, therefore, on pause again until a 9J passes with which the PP hoped to give a definitive blow to Sánchez that, for the moment, the polls do not foresee. He has to wait.

P.D. The statements by Toni Comín with which on Friday he conditioned Junts’ support for Pedro Sánchez in Madrid on facilitating Puigdemont’s investiture have not disturbed the apparent tranquility with which Moncloa faces the coming weeks. “It is neither part of the direction nor is it what the former president’s interlocutors convey,” they say. What did fall like a bomb was the announcement by the Castilian-La Mancha Emiliano García Page that he has initiated the necessary steps before the Advisory Council of his region to appeal the amnesty before the TC, as the PP barons will do. And this is something that at Ferraz some prefer to ignore and others prefer not to ignore.


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