The Constitutional Court is ready to endorse the amnesty in the midst of a political crisis.

The Constitutional Court (TC) is willing to endorse, although sharply divided, the constitutionality of the Amnesty Law despite the political storm threatening the Government and directly affecting Santos Cerdán, one of the negotiators of the law to erase the judicial, administrative and accounting cases linked to the procés .

The guarantees body chaired by Cándido Conde-Pumpido begins debate today on the report, drafted by the body's vice president, Inmaculada Montalbán, which reviews the appeal filed by the People's Party (PP) against the law. The draft declares virtually the entire text constitutional, essentially stating that the Constitutional Court should not assess the political motives that led to its approval in Parliament, but only whether the law is incompatible with the Constitution. "The specific political objective that the legislator intends to achieve with the law is not a matter for this court," states Montalbán's draft. In response to the PP, which attributes the amnesty to "a political transaction to secure investiture," he points out that all laws respond to "criteria of political expediency."

Regarding the constitutionality of the amnesty, the report states that "the legislature may do anything that the Constitution does not explicitly or implicitly prohibit. Within this limit, no content can be considered exempt from the possibility of Parliament applying it."

Conde-Pumpido has set aside the entire week of June 23-27, Monday through Friday, for deliberation and voting on the ruling, in order to allow sufficient time and maintain continuity of deliberation and unity of action with the vote.

According to the president, this provision is necessary to begin reviewing the remaining pending cases on this matter in September (30 appeals, including those from the autonomous communities, the constitutionality issues, and the constitutional protection appeals).

Conde-Pumpido believes the allotted time is sufficient for the review of the report, since it has been distributed among the ten judges, who have been able to study it more than three weeks in advance, as requested.

Montalbán's report points out that the political motives of the rule are not the court's concern.

Two weeks ago, there was a first meeting in which Montalbán outlined the main points of the report. A special plenary session begins today, during which any desired and necessary deliberations may take place. The president's goal is to have a vote between Thursday and Friday, and with the progressive majority (6-4), the text will be approved. His idea is to have the ruling, including the dissenting judges' dissenting votes, delivered before the beginning of summer.

Court sources assure that the progressive majority on the court maintains its intention to vote in favor of Montalbán's draft, unaware of what happened on Ferraz Street (the headquarters of the PSOE), where the amnesty was negotiated.

In fact, it was Santos Cerdán—who resigned two weeks ago as PSOE's organizational secretary, implicated in an alleged corruption case—who was appointed by the Prime Minister and PSOE's general secretary, Pedro Sánchez, to negotiate the text of the law with Junts leader Carles Puigdemont. The former president was one of the main beneficiaries of the law on criminal forgetting.

Sánchez reached an agreement with the separatists, including Esquerra (in this case, Minister Félix Bolaños was the main negotiator), to approve the amnesty through a bill presented by the PSOE in Congress, in exchange for their support to obtain enough votes to be invested and re-elected as head of the Executive after the July 2023 elections.

The president chose Cerdán as one of the negotiators, and he was the one who went to Waterloo to meet with the former president of the Generalitat.

It is not a general pardon

One of the arguments put forward against amnesty is that the Constitution expressly prohibits general pardons, and therefore, amnesty should be even more prohibited. The report before the Constitutional Court does not share this view and points out that the Constitution does not expressly prohibit amnesty. The text explains that although pardons and amnesty may have points in common, "the legal regime that defines them and their legal effects are very different." Thus, it indicates that while a pardon is an act of the government and can be subject to review by the contentious-administrative jurisdiction, an amnesty can only be adopted by the legislature, as only the legislator can make exceptions to the law. Furthermore, the text clarifies that "amnesty is not the forgetting of facts," but rather the erasure of their "repressive" legal consequences. "The facts either exist or they do not exist. No amnesty law can erase them."

One of the most difficult points to push through was including terrorism offenses in the amnesty, coinciding with the investigation by the now-retired National Court judge Manuel García Castellón, which directly targeted Puigdemont and Marta Rovira (ERC) in the Tsunami Democràtic case for that offense. He finally reached the desired agreement, and the law was passed in May of last year.

The embezzlement investigation, which prevents the law from being applied to Puigdemont and others, will have to wait.

Despite the law's entry into force, the Supreme Court has refused to apply it to Puigdemont and the main pro-independence leaders, ruling that the crime of embezzlement, for which they are held responsible for using public funds to organize the October 1, 2017, referendum, is not eligible for amnesty. The High Court understands that these leaders profited because, had they not used money from the Generalitat's coffers, they would have had to use their own money, and therefore, in its opinion, there is personal gain, an exception established in the law that excludes them from the amnesty. This first ruling will not assess this Supreme Court doctrine, so Puigdemont will still have to wait a few months until it is clarified whether he will be amnestied.