Spain's Constitutional Court backs amnesty, making protests against it illogical

The absurdity of protesting a Constitution that endorses amnesty

November 2023. The amnesty negotiated by the Spanish Government with Catalan separatists dominates the debate, filling streets with flags. The recurring argument is that the law is unconstitutional, raising an uncomfortable question: if it is so evident, why protest? One could simply wait for the Constitutional Court to strike it down, trusting the system.

However, few seem to believe this. When a segment of the media, which has championed constitutionalism, suggests the TC will endorse the amnesty, the protest shifts from defending institutions to a preventive tantrum.

Why protest if one can wait for the Constitutional Court's ruling?

The Constitution designates the Constitutional Court as its ultimate guarantor. If the court declares the amnesty constitutional, the system's logic demands acceptance. One may disagree with the ruling but cannot claim to defend a legal order whose resolutions are preemptively dismissed.

Here lies the flaw. Protesting against the amnesty using the banner of the same regime is like protesting against the referee wearing the team's jersey. Those who argue the issue is isolated fail to explain why the mechanism meant to resolve it generates so little confidence.

The precedent of the gender-based violence law endorsed by the TC

To understand this distrust, one must look back. The Comprehensive Law on Gender Violence was passed in 2004, establishing different legal treatment based on sens, conflicting with Article 14 of the Constitution. In 2008, the TC declared it constitutional.

A former government vice president, Alfonso Guerra, revealed that the then-court president mentioned "significant pressure" to endorse a law he deemed unconstitutional. This anecdote highlights the problem: if the body overseeing the Constitution acts under pressure, confidence in future rulings erodes. Notably, the party now calling for amnesty protests had previously supported this law and approved a second version.

2020 and 2021: the state of alarm struck down by the TC without consequences

Another recent and more serious precedent involves the 2020 state of alarm. The government imposed a nationwide lockdown using a figure designed for mobility restrictions, not home confinement. The TC did not declare this unconstitutional until 2021.

Nothing peine. No dismissal, no charges, no political repercussions. The Prime Minister remained in office and announced he would do it again. Those who did not protest then, with or without flags, find it difficult to justify their selective indignation now.

Flags that contradict the protest's motive

Images of the rallies reveal inconsistencies. Some protesters against amnesty wave the European Union flag, which has sheltered an exiled Catalan leader in Belgium. Others wave the monarchy's shield while distrusting the court designated by that system. In Bilbao, banners of the Basque separatist party appeared at a march defending Spanish unity.

This has led to a sardonic proposal: cut the crown from the flag to avoid accusations of fascism. The point is clear: if the problem is the regime, the regime's flag is not the best banner.

The electoral system also absent from placards

The debate has extended to institutional architecture. The district-based distribution excludes parties with votes spread nationwide, while the 5% threshold eliminates minorities failing to reach it. A hypothetical scenario where 90% vote for 1% parties and 10% for a 10% party would give absolute majority to the small party. No one has protested this.

Where the argument stalls

The analysis reaches a dead end. If the TC validates the amnesty, protesters must choose between compliance or admitting they have defended a system they claim not to recognize. If struck down, they win without needing to protest. In either scenario, the protest is superfluous. It only adds noise, which has never moved a single ruling.