Spain's top court warns amnesty law violates constitution before text exists

Spain's top court declares amnesty unconstitutional before seeing the bill

The General Council of the Judiciary (CGPJ) has issued a statement on a law that does not yet exist, admitting it will be unable to provide its mandatory advisory opinion once the bill is drafted. The Plenary, meeting in an extraordinary session, approved an institutional declaration arguing that amnestying the events of October 1, 2017 — and related crimes — abusa constitutional principles. The significance lies not only in the content but in the timing: the council acknowledges it is intervening preemptively because the chosen parliamentary route, a bill introduced by parliamentarians, prevents it from issuing the required report.

What exactly does the CGPJ declaration state?

The text is based on two key ideas. First, fundamental rights bind all branches of government, as stated in Article 53 of the Spanish Constitution. Second, an amnesty under the current system constitutes a serious abusa of these rights and the separation of powers. The council does not dispute parliament's right to propose laws but asserts it cannot remain silent on an initiative that, in its view, affects the very structure of the Judiciary.

According to the declaration, the trigger was the statement by the acting Prime Minister. The council notes that on October 28, he confirmed a pact to pass an amnesty law with parties including those led by a fugitive who would personally benefit, and that he would approve it in Spain's interest to avoid a right-wing government if a new election were held. The CGPJ argues this statement broke the silence previously maintained by the executive.

Article 62 of the Constitution and the debate over the King's signature

Some interpretations view the declaration as a warning to King Felipe VI. Article 62 of the Constitution obliges the monarch to sanction laws passed by Parliament, with one exception: he cannot sanction a general pardon. This has led to speculation that an amnesty is a way to bypass this prohibition. Some even question whether the monarch could refuse to sign. However, a counterargument holds that the Constitution provides no mechanism to remove him from his duties. The precedent of Belgium's King Baudouin, who invoked temporary incapacity to avoid signing an abortion law, is not applicable because the Belgian Constitution differs from Spain's. Neither position is resolved.

The Romanian precedent and Europe's double standard

The most cited comparison is Romania. In 2019, the European Union warned against an amnesty pushed by the Romanian government that benefited its own members, calling it a step backward for the rule of law. Critics argue that with the Spanish law, the European Commission maintains a much more subdued attitude, treating it as an internal matter. The comparison has both defenders and critics: some see double standards depending on the country; others note that each legal system fits differently into EU law, and the Spanish case remains open.

Why is it processed as a parliamentary bill?

This is the technical core explaining the council's urgency. Processing the law as a government bill would require consulting state advisory bodies, including the CGPJ. By using a parliamentary bill, the government can bypass these consultations. The declaration states plainly: it is absurd to ask the council to wait to do something it cannot do because the chosen route prevents it. This is the council's strongest argument and its most controversial point.

Can the CGPJ rule on constitutionality?

Criticism has focused on this issue. It is argued that the council is not the competent body to decide what is constitutional and that, by speaking before seeing the text, it oversteps its role, which should come later during the advisory phase. The council's response is that it is a constitutional body, not merely administrative, and is empowered by Article 561.1.8 of the Organic Law of the Judiciary to speak up when it believes the rule of law is at risk.

The arithmetic closing the investiture

Meanwhile, the political board has been resolved. The numbers for the investiture show 179 votes in favor (PSOE, Sumar, EH Bildu, PNV, Junts, ERC, BNG, and Coalición Canaria) against 171 against (PP, Vox, and UPN). With this margin, the question is no longer whether there are enough votes, but what institutional price the agreement carries.

When the text reaches Congress, will the CGPJ have the final say or merely issue a preliminary warning?