Amnesty: the silent rebellion of the Supreme Court

Today marks seven years since the trial at the Supreme Court against the main leaders responsible for organizing the October 1st referendum concluded. That judicial case, which culminated in severe sentences for sedition, embezzlement, and disobedience, marked a before and after in Catalan and Spanish politics. Also these days, as a result of the PSOE's arithmetic needs and the demands of the independence parties, it has been two years since the approval of the amnesty law, which, although it was approved with an absolute majority in the Congress of Deputies and has the backing of the Constitutional Court, a part of its recipients continue to wait for it to be applied to them, when it is a fully valid law.The debate on the amnesty was intense. For months it was discussed whether it was convenient, timely, and fair. Its constitutionality was questioned and appeals were filed to try to prevent its entry into force. All this could be considered part of the legitimate democratic game. But once Congress approved the law and the Constitutional Court validated its essential aspects, any discussion about its legal legitimacy should have been resolved, but the Supreme Court has maintained the challenge by not applying the law, stretching the gum of embezzlement to the point of maintaining that there was personal enrichment, even though everyone knows that there was no appropriation of public resources, nor personal enrichment, nor any individual economic benefit.Two years after the amnesty law, Carles Puigdemont, Oriol Junqueras, Raül Romeva, Dolors Bassa, Jordi Turull, Lluís Puig and Toni Comín continue without fully recognizing the effects of the norm. In the case of the exiles, who have not even been tried or convicted, the Supreme Court has already ruled out applying the amnesty to them. In the case of the leaders who were convicted, the same court has opted to indefinitely postpone the decision with the argument that it is necessary to await the ruling, which has been pending for months, from the European instances on the preliminary questions raised. And in this way, days pass, years push.The criminal chamber of the Supreme Court and a good part of the elites of the judiciary have not digested that the sentence of the Procés trial may end up as a dead letter. They experience it as an institutional humiliation and have already made it clear that they will twist the interpretation of the amnesty law until it says the opposite of what is written. Their interpretation is so forced that even some female magistrate made a dissenting separate opinion openly asking for the law to be applied.  The original sin of the amnesty is that it renders meaningless a ruling that had been presented as the State's definitive response to the independence challenge, and the legislator's decision alters that narrative and opens a new political stage that some do not seem willing to accept. The consequence of this is worrying because the Supreme Court acts as a counter-power, as if it had the capacity to decide which laws deserve to be applied and which can be subjected to permanent reinterpretation until they are rendered inoperative. This is an attitude that exceeds the proper functions of the judiciary and erodes one of the basic foundations of any democracy: respect for the will expressed by the citizens' representatives.When a court stops applying a law because it does not agree with its effects, the problem is no longer legal but political. The insistence that Puigdemont cannot return from exile without going to prison and that Junqueras and the rest of the leaders remain disqualified makes it very clear that part of the judiciary prioritizes its ideology over its duty to apply the laws. Blocking the amnesty with unfounded pretexts is, frankly, a manifestation of authoritarianism incompatible with the elementary rules of the rule of law.But as serious as this is the silence of many political leaders. Too many leaders seem comfortable with a situation where laws are only enforceable when they align with their ideological preferences. When the rule of law is a tool to pursue adversaries and not a guarantee to protect rights, it is a cardboard rule of law. And this is an anomaly that transcends separatism. Because when a democracy allows its courts to disobey the spirit and purpose of a law approved by the parliamentary chamber and validated by the Constitutional Court, the damage is not only to those affected. The damage is to democracy itself.