Spain's King and the amnesty law: what the Constitution forbids him to sign

The amnesty that, according to part of the debate, the King is not obliged to sign

Article 62 of the Spanish Constitution lists the King's functions and, among them, one that almost nobody reads carefully: exercising the right of grace in accordance with the law, which may not authorise general pardons. From there stems the thesis that dominates the issue: if an amnesty amounts to a general pardon, the King could not only refuse to sanction it, but would be obliged to do so. The discussion is not trivial because it touches the core of the system: what the Government can do and what the Head of State cannot sign.

The argument rests on a literal reading of the constitutional text. An amnesty, it is claimed, is not a minor figure or an individual pardon: it is an aggravated form of general pardon, the only law the King can and must reject. If the Executive insists, an institutional clash is served: without royal assent the law does not come into force, and the remaining route is administrative litigation before the Third Chamber of the Supreme Court.

What Article 62 says about the right of grace

The list of functions includes sanctioning and enacting laws, convening and dissolving the Cortes (parliament), calling referendums, proposing and appointing the Prime Minister, appointing and dismissing ministers on the Prime Minister's proposal, issuing decrees agreed by the Council of Ministers, supreme command of the Armed Forces and the High Patronage of the Royal Academies. The key lies in the clause on the right of grace: he may not authorise general pardons.

The comparison circulating is the one about traffic law: there is no need to ban driving above 200 per hour if driving above 120 is already banned. Transferred to this case, an amnesty would be far more serious than a general pardon, so the constitutional prohibition would cover it all the more. The practical consequence is that the King would not be facing just another law to sign, but the only one the Constitution expressly forbids him.

The King signs everything that reaches him except one thing

The most repeated objection is that the King sanctions without complaint any law put before him. Some recall that his father signed the gender violence law in 2004 without objections, and from this a pessimistic conclusion is drawn: the written word is worth whatever the constitutional court decides it is worth. Others reply that this case is different, because there is no room for interpretation here: the prohibition is explicit.

The debate becomes tangled over countersignature. The King's signature is accompanied by the responsibility of whoever countersigns it, so the political cost would fall on the Government. Those who argue he should not sign claim the King would cease to be King before sanctioning an amnesty; those who believe he will sign point out that his real margin is nil and that the system is designed so that he never has to decide.

The constitutional reform route and its shortcuts

Article 168 requires two thirds and a long, demanding process to reform the Constitution. The technical criticism notes that Title X itself can be reformed by a three-fifths majority, so it would be enough for the major parties to agree to rewrite whatever suits them. With PP and PSOE together the arithmetic gives 258 seats, well above the 233 needed for two thirds.

The underlying suspicion is that the text was drafted with deliberate ambiguity so that interpretation would fall to the constitutional court. The answer to that suspicion is the same given to all institutional design problems: if the rule does not close the door, someone will open it. And if it closes it, someone will look for the window.

What happens if the King refuses to sanction the law

If the King does not sanction, the law does not come into force. The scenario being considered is going to the Third Chamber of the Supreme Court through administrative litigation, a route that would turn a political conflict into a lawsuit lasting months or years. Meanwhile, the legislative calendar continues its course and fresh elections emerge as the emergency exit.

Some claim all this is theatre: the independence supporters know the amnesty will not happen, but keeping the standoff alive pays off electorally for them, and when it fails the blame will be others'. The question left hanging is what happens to the wear on an institution forced to decide between signing what it should not or breaking the balance.

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The point where the analysis always gets stuck is the same: the Constitution forbids the King from authorising general pardons, but does not define what an amnesty is. And while nobody defines it, the ball stays in the air.