Wherever Spain heads after a looming confidence vote likely confers another mandate on Pedro Sánchez, future historians will struggle to relate that trajectory to the way the month began. Even as the caretaking socialist PM unveiled his intent two weeks ago to cling to power with seven Catalan separatist votes at the price of flouting the Constitution, elsewhere the symbols, norms and traditions that have bound Spain since the 1978 transition proved alive and kicking — and won’t go down without a brawl. The dissonance peaked between October 28 (Saturday) and Tuesday last week. In just four days, our 40-year-old democracy exhibited both youthful sparkle and moribund senescence — lurching perilously towards suicide whilst proclaiming its resolve to live. In a country beset by venal leaders and centrifugal identities, the months since the July 23 general election delivered no clear winner may seem a preordained constitutional rollercoaster. With a tad more perspective, they could end up proving to have been the death throes of a 530-year-old nation state.
On Tuesday morning last week, those on the side of Spain’s endurance had their hopes pinned on Leonor, Princess of Asturias, graciously greeting the flag-waving onlookers whilst wheeled through downtown Madrid on the backseat of a pitch-black Rolls-Royce. As she was turning eighteen that day, tradition required that the eldest daughter of King Philip VI take an oath of allegiance to the Constitution before the Cortes Generales (our bicameral Parliament) so that she may instantly rise to the throne were her father to pass away or elsehow become incapacitated (she had already sworn by the flag at Zaragoza’s military academy four weeks earlier). Thirty-seven years ago, on the day of his own transition to adulthood, her father had sworn an identical oath on the selfsame copy of our 1978 Carta Magna. Following the state ritual, the pomp moved to the Royal Palace, where an admirably composed Leonor gave a less scripted speech pitching her majestas to the nation: “I owe myself to Spaniards and ask that they trust me.” She was then handed the collar of Charles III, Spain’s highest civil honour, further testament that the Crown embodies the nation’s unity and continuity through the ages. For the nearly three million mostly unionists and constitutionalists watching, Tuesday had the feel of a monarchic jubilee.
Yet the thrill required forgetting the political imbroglio that Leonor’s rite of passage was set against. Spain is caught in a quagmire of ungovernability — a problem that will only be resolved at one half of the country’s expense. Going into the ill-timed, mid-summer race of July 23, the cautious expectation was that a right-wing PP-Vox bloc would dislodge Sánchez’s “Frankenstein” coalition and roll back its agenda of radical feminism, eco-social engineering, big government, Orwellian “historical memory” and connivance with separatists. As the exit polls trickled in that evening, the hope crashed on the shoals of the right-wing bloc’s turnout deficit and the socialists’ gains in Catalonia and the Basque Country.
Worse than a constitutional own goal, it would be national murder-suicide
Although the race’s winner, PP, grew by 3 million votes and 47 seats, the alliance with the woefully underperforming Vox — which dropped by 19 seats, down to 33 MPs down from 52 — yielded four votes short of the required absolute majority (172 vs. 176), as was predictably showcased when the PP’s leader got his procedurally pointless chance at forming a cabinet in late September and failed. Sánchez’s surprisingly resilient PSOE, for its part, was stuck with one main partner that had lost out, too — the far-left — but could aspire to form another investiture coalition by reaching out to Junts pel Sí, the liberal-separatist party of Catalonia’s former President, Carles Puigdemont. He oversaw the region’s 2017 illegal independence referendum, then flew to Brussels and has since served as an MEP. It turns out the screws on Frankenstein’s brain could be tightened further. As if four years ruled by a ring of socialists, communists and separatists of various stripes hadn’t been enough, the unionist bloc’s worst fear this time was that Sánchez would wheel and deal his way to re-election through a potentially lethal blow to Spain’s territorial integrity. The price for Junts’ seven votes would be, at a minimum, horse-trading an amnesty bill to exculpate those prosecuted for their role in the 2017 coup d’état.
Worse than a constitutional own goal, such an anti-democratic get-out-of-jail-free card would amount to a national murder-suicide. The 2017 coup was a unilateral, minority-led boondoggle price-tagged at €4 million, much of it billed to the Spanish taxpayer. It was shunned and boycotted by the region’s silent majority, which views Catalan nationalism as socially exclusionary, culturally parochial and economically suicidal — to say nothing of the 40 million non-Catalans whose sovereignty an eventual secession would effectively abolish.
Catalan unionists have long endured forms of cultural and linguistic supremacy unseen in ethnically mixed regions of Eastern Europe, but the 2017 coup marked a watershed in Barcelona’s intent to silence, marginalise and ultimately exile them. It is not just the imperative of standing for those fearing their fate in an independent Catalonia that spurred Madrid to invoke the Constitution’s article 155 and supersede the regional executive. The charter left the country’s then right-of-centre government no other option. Article one lays down that “national sovereignty resides in the Spanish people” (subtext: in its entirety). Whereas article two’s latter half reckons with “the right to autonomy for the constituent regions and nationalities”, that right is limited at the start: “the Constitution is based in the indissoluble unity of the nation, common and indivisible homeland of all Spaniards”. Article ninety-two, for its part, allows for “political decisions of special transcendence” to be decided in plebiscites, but only when called by the King, proposed by the PM and approved by Parliament (none of which obtained in 2017). The contrast with David Cameron granting a Scottish independence referendum in 2014, therefore, is comparing apples to oranges. Whereas Scotland’s negotiated breakaway would fall within the legal bounds of a historically contingent union of nations whose rapport isn’t codified by writing, Spain’s unbreakable legal order takes root in the shared history of its inseparable regions.
Though speculation that Sánchez would indulge Puigdemont’s demand for amnesty had run high for weeks, the PM fulfilled that nightmare explicitly on 28 October. PSOE’s conclave met that day, with party bigwigs trading awkward looks for the moment to applaud an announcement Sánchez had incessantly sworn he would never make. The speech was meant as a pivot to the base, a move to whitewash a vow-breaking and unconstitutional amnesty plan by insisting that Spain wants it, even as the only evidence supplied of 80 per cent support amongst socialist voters is nowhere backed up with non-partisan polling. “Catalonia is ready for a blank slate,” intoned Sánchez at the meeting. “In the name of Spain and its interests, in defense of our vivre-ensemble and peaceful coexistence, I defend amnesty.” Upon two months of frantic guesswork as to how Sánchez — the game’s player with the fullest information set — would respond to the demands Puigdemont had rolled out in a speech in early September, now the former’s intent was firm and unequivocal. Though communist labour minister Yolanda Díaz had surreptitiously broken the ice with Puigdemont that month in Brussels, Sánchez’s speech finally made plain that the fugitive who had orchestrated the gravest attack on Spain’s legal order in generations was a valid negotiating partner. The PM wasted no time in fast-tracking the sausage-making. The Monday after, PSOE’s third-in-command and Sánchez’s henchman, Santos Cerdán, joined Puigdemont again, this time in his parliamentary office (the host-guest rapport couldn’t have been inverted as the latter would be instantly detained were he to set foot in Spain). Perhaps most humiliating to Spain’s self-image was a photo plastered on the room’s wall, hidden on camera, of a ballot box from the 2017 referendum. Incidentally, it was also the sixth anniversary of Puigdemont’s unceremonious exile. He was finally back on the mission of breaking up Spain.
Some of those troublemakers have been put on trial for domestic terrorism
Sánchez now has little time to hash out the deal’s details — and there are many — before his confidence vote sometime before November 27 (the law dictates a two-month span between a failed attempt at cabinet formation and the next one; the repeat race, were Sánchez to also fail, would be held around January 14). For one thing, the left-separatists of Esquerra Republicana de Catalunya (ERC), whose seven votes will also be decisive and who claim to pursue a “total solution” to the conflict more radical than Puigdemont’s, are asking for three “carpets” (or tracks to the talks), of which amnesty is merely the first. Although it may not be legislated immediately — for good political reason — the second and more radioactive track is removing the roadblocks to Catalonia’s “self-determination”, which in effect would mean a repeat referendum, this time sanctioned by Madrid. This would in turn vitiate the first track by making the whole package worse than amnesty, for the word — from the Greek “amnesia” — implies a commitment not to incur the crime anew, which Puigdemont and his associates evidently lack. The last “carpet” concerns yet another round of financial pork-barreling for Spain’s second-wealthiest region under the rubric of “social welfare”, which would include further giveaways on several budgetary items (two of them, fully devolving oversight of Catalonia’s trains and condoning €15 billion of Catalonia’s debt, have been already agreed).
Even on amnesty alone, the demands are more onerous than initially thought. Junts demands the pardoning of only those who peacefully partook in the plebiscite. ERC, meanwhile, wants the reprieve extended to 1400 individuals in total, including those who blocked highways and invaded Barcelona’s airport the day the Spanish High Court’s post-plebiscite ruling dropped charging the top culprits with sedition and embezzlement. Some of those troublemakers have been put on trial for domestic terrorism. A conservative High Court judge on Monday added Puigdemont and his ERC peer to investigation for connivance in exactly that, in a move aimed at derailing the talks and hoping to trigger the EU’s involvement, were the amnesty to extend to individuals who would have been deemed terrorists. At the very least, the two parties’ separate strategies belie a lack of coordination — an opening that could be savvily exploited by Sánchez if he harboured the faintest desire to limit the damage to Spain’s legal order. Instead, he is willing to let them ratchet up the bill so long as the power he covets lies on the other side.
Were these riddles solved, unionists could in theory pin their hopes on the courts, but they will likely be disappointed. Before Sánchez got close to sniffing power, he was so verbally at odds with separatists that he claimed endlessly the Constitution didn’t allow pardons (indultos). Two years into his term, he handed exactly that kind of judicial clemency to nine of the plebiscite’s top culprits in exchange for their parties’ vote in that year’s budget (his party even reformed the Penal Code to take out “sedition” and revise downwards the sentencing for “embezzlement”). Then the goalposts were moved further towards amnesty. Whilst a pardon exculpates the convict without erasing the charge, amnesty implies, per the UN, “the retrospective annulment of a previously determined juridical responsibility, disallowing the trial”. Spain’s transition was built on letting Francoism off, but the moment it passed, the 1978 Constitution put amnesties of any kind off the table. In his power-seeking conceptual gymnastics, Sánchez now claims an amnesty will necessarily comply with the Constitution. Yet conservative jurists claim it would violate seven of the charter’s articles, mostly dealing with the document’s primacy within the legal order, the equality of all Spaniards under the law in all parts of the territory, normative hierarchy, retroactivity of sanctions, the independence of the judiciary — and more.
In a young democracy where “constitutional” often means whatever those in power wish to cram into that category, and where the Constitutional Court houses a solid progressive majority, a robust judicial challenge is unlikely. At worst, the bill would pass unscathed and on time for Sánchez to be sworn in with Junts’ votes, especially if the preamble makes Sánchez’s Orwellian case eloquently enough: that amnesty would mend fences between those pitted against by the Catalan conflict and foster concord, along with keeping the right and the far-right (which he claims would fan the conflict’s flames) out of power. At best the Court will issue qualms which would, in the rosiest scenario, lead to a mild toning down of the bill. At that stage, the PP’s majority in the Senate, where bills are sent once passed by the lower Chamber, will simply be able to raise time-winning procedural obstacles in the two months it has — which, if the bill is green-lighted by the Court, will amount to little.
The infamy we all feared took shape on Thursday, with Madrid celebrating its patron saint and constitutionalists further aggrieved by the murder attempt on former PP MEP and Vox founder Alejo Vidal-Quadras for as-of-yet unknown motives. Santos Cerdán unveiled that morning the four-page bombshell he had been tasked to negotiate in Brussels with Puigdemont & co. Its preamble parrots the delusional narrative of a confiscatory and repressive Spain against the legally and democratically airtight secessionist movement, reupping a grudge about the 2010 Constitutional Court ruling that struck down, at the PP’s behest, the region’s hyper-autonomous 2006 regional constitution. It then goes on to hype the “profound differences between the two negotiators”, even as the agreed-upon items do far more than bridge the chasm.
Judges suspended their political quarrels to unanimously howl
The deal entrusts its implementation to international mediators, as the separatists have long demanded. The first substantial section concerns Catalonia’s “national recognition”, where PSOE’s commitment to revive the 2006 estatut and Junts’ insistence on a referendum will likely meet at a state-backed, binding consultation of some sort. Financially, Junts demands that all taxes paid in Catalonia be transferred to it, whilst PSOE promises further autonomy (read: exacted largesse). Spanning from 2012 to 2023, the language on amnesty proved the bomb’s detonator, for it foresees creating parliamentary committees tasked with discretionally granting amnesty to individuals deemed victims of “lawfare”. The term carries a two-fronted assault on the separation of powers that the assaulter — the governing PSOE — oversees. First, it presumes that court rulings handed down around 2017 were not statutory interpretations but politically motivated ambushes. Second, outrageous though its passing would be, an amnesty law should be applied by magistrates alone — not lawmakers, especially not if their case is on the docket. Unsurprisingly, all unions of judges and prosecutors of every stripe suspended their customary political quarrels to unanimously howl the second the deal dropped, which they view as an “infringement upon judicial independence and an assault on the separation of powers”.
Faced with Parliament’s immutable arithmetic, the uncertainty that an electoral redux would tilt our polarised electorate to the right, and a loudly silent European Union hell-bent on prosecuting every member-state’s “democratic backsliding” but Spain’s, the fight for rule of law and national unity had migrated onto the streets by the week’s start. PP and Vox seem no longer locked in their petty contest for drawing the largest crowds at largely pointless rallies. Numbers like the ones each party has strenuously attained in the past have effortlessly gathered every day of this week around PSOE’s headquarters in all major cities, rallied by social media and attended by leaders from both parties. Locked betwixt mischief-makers infiltrated in their midst and the government’s tear-gassing policemen, this spontaneous nationalist version of the 2010s “Occupy” sit-ins is flipping the politics around police, with brutal images of repression against the elderly turning many on the right against men in uniform.
These protests form the beating heart of what’s left of Spain — the part of the country that rejects national suicide. Their growing intensity makes sense in light of what’s at stake. Defeatists on the right, for whom an amnesty would not be unlike every other past giveaway to separatists (including by the right-of-center government of José María Aznar), may cynically have a point — but they ignore another.
For bygone politicians exceeded by the Catalan dilemma, agreeing to limited and close-ended devolutions of power to ensure governability was rational behaviour, however much we’d like those constraints to go away. This time, the eagerness with which both sides sat down to satisfy their respective venalities under Orwellian pretexts makes them indistinguishable in their resolve to chip away at Spain’s laws and unity. Unlike in 2017 when Madrid went to legal war against Barcelona, this time the coup-plotters straddle both cities, and their willingness to scratch each other’s back at Spain’s expense knows no limiting principle. It certainly won’t be checked in the legislature, where Sánchez will recurrently need votes to pass yearly budgets and major bills, making for additional instances of surrendering. Further, any amnesty — however the bill shapes up — would embolden the separatists and make another referendum inevitable, which would swimmingly result in breakaway, with Catalonia’s debt laid at Spain’s feet (Puigdemont has already confidently pitched that he wants €73 billion of that bill wiped away).
Beyond national dismemberment and the erosion of rule of law, this unholy alliance will then doubtless turn its eyes on the monarchy that just pre-anointed its successor. At this pace, the slippery slope could soon culminate in a Bolivarian banana republic in a shrinking portion of Iberia. If they don’t oppose it, Spaniards will wake into a country changed beyond recognition come December. It will no longer be Spain.
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