What no one doubted was going to happen has happened. The Government has decided to pardon the leaders of the procés.
No one doubts either that the pardon decrees, signed by the Minister of Justice and sanctioned by the King – who could not be inhibited even if he wanted to – will be contested. It has already been announced by the political parties of the center-right and extreme-right spectrum, without waiting to read the corresponding decrees.
But can such pardons be challenged by these entities?
Of course, any decree of the Council of Ministers, like any act of the Government, can be appealed by contentious-administrative means, before the corresponding Chamber of the Supreme Court. The old doctrine of the “political act” that cannot be appealed before the courts – to whose study, by the way, I dedicated my first research work – has fortunately been banished in our law. Article 2 of the Law of Contentious-Administrative Jurisdiction of 1998 (LJCA) attributes to it the competence of inspection of “acts of the Government”, of any nature. In particular, on its “regulated” elements.
Pardon is not an uncontrollable “political act”. It is an administrative act of the Government, which has, like any executive power agreement, a political foundation. The exercise of the right of grace is therefore appealable (Supreme Court ruling of March 20, 2013). The political reasons for a pardon are certainly not controllable by a court. But its formal requirements are. Because every pardon produces “legal effects” (judgment of the Constitutional Court of March 25, 2014).
However, it is doubtful that any political party has a “right or legitimate interest” in not pardoning members of other political parties (article 19 of the LJCA). Probably, Vox could prove that legitimate interest by having been an accusing party in the process before the Criminal Chamber of the Supreme Court from which the pardons are brought.
If the barrier of active legitimation is overcome, and the material aspect of the appeal is entered, it is even more difficult for a formal challenge to the pardons to succeed. Because a resource does not fit political reasoning, naturally typical of a party, as we have heard from the spokesmen of the PP, Vox or Citizens. It happens that the reason why the Government will pardon is, as I said, politics, and nothing more than politics. In this sense, there has been talk of justifications such as restoring coexistence and dialogue in Catalan society or institutional collaboration between the State and the Generalitat (which is also part of the State).
The Government has the power to exercise the right of grace. And the Head of State, to sanction it. The challenge, therefore, can only be supported by strictly legal reasons. Which? that the procedural norms for granting a pardon have been violated by the Council of Ministers.
These norms are provided for in the 1870 Law (modified by Law 1/1988). It does not appear that they will be transgressed. The most important is the one that the recent jurisprudential doctrine has created: that the pardon decrees are minimally motivated, even though the law does not require it. It will be easy to achieve that requirement by the Council of Ministers.
We have heard from people who are supposed to be knowledgeable about the law – politicians, media or law experts with a conservative orientation – arguments without sufficient legal solvency. Most of them based on the opinion extracted from the Report made by the sentencing court. Thus, it has been stated that a pardon to the procés leaders would be “illegal” (sic).
What do you mean by that it would be an illegal pardon? Essentially, to two supposed demands of the law: that there be repentance; and is based on justice, equity and public utility. Neither of these two assumptions are required by the 1870 law to grant a pardon, although, obviously, they are positive circumstances that would make a pardon more meaningful. In any case, I am convinced that the Government will not fail to state that pardons have the characteristics of justice, equity and, above all, of “public utility.” But, I repeat, the law of 1870 does not require it.
There is another argument that the Supreme Court develops in its Report: that the pardon would actually be a “self-pardon”, because the imprisoned politicians – that political prisoners – They are the leaders of the parties that support the Government in Parliament and that allow their subsistence as such. It is, in my opinion, a purely political argument, not a legal one, in which the Supreme Court clearly exceeds its powers. It has no basis whatsoever. In addition to its lack of legal value, it is not supported by reality. The current coalition government does not need the pro-independence parliamentary groups to stay in power and exhaust the legislature. An alternative majority that would win a vote of no confidence is not imaginable. In Spain, this must be “constructive”, that is, it must necessarily incorporate a candidate for Prime Minister. Does anyone conceive an alliance of Vox, Ciudadanos, the Popular Party, plus the independence and nationalist groups, that would vote the same candidacy for the presidency of the Government? No, obviously.
I want to end with an appreciation of a legal-constitutional nature. The strongest reason to consider that the safe challenges to the granting of pardons to the independence leaders should not be successful is very simple: if the Supreme Court annulled the decree of the Council of Ministers signed by the King – for reasons that were not strictly formal or procedural – the power to pardon, which constitutionally and legally possesses the Council of Ministers, would pass de facto to the Judicial Power.
The Supreme Court would become the authority with the capacity to pardon or not to pardon. No longer the Government with the sanction of the King.