The substitute president of the General Council of the Judiciary (CGPJ), Vicente Guilarte, last February.FERNANDO ALVARADO (EFE)
The substitute president of the General Council of the Judiciary (CGPJ), Vicente Guilarte, has spoken out very harshly against the amnesty law promoted by the Government of Pedro Sánchez.
In the document prepared to argue his blank vote for the text approved last week by the governing body of the judges, which considered said norm unconstitutional, Guilarte explains his position as a show of “prudence” in the face of the intense “political component” that surrounds this debate.
But, at the same time, he insists that this legislative initiative responds to a “transaction” between the PSOE and the pro-independence parties, which allows both parties to obtain “mutual benefits” and which, therefore, constitutes a true “bargaining currency.” between political forces that “distorts” the justification given in the explanatory memorandum of the law, which stressed that it was done for the “general interest.”
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The conservatives of the Judiciary carry out the report against the amnesty
Last Thursday, the conservative (and majority) sector of the CGPJ gave the green light to the opinion prepared by member Wenceslao Olea that considers the amnesty law unconstitutional.
The text, which is not binding, obtained the support of 9 of the 10 members proposed by the PP.
Guilarte, also backed by the conservative party at the time, and the progressive Enrique Lucas voted blank.
For their part, the five members proposed by the PSOE supported an alternative text written by the progressive member Mar Cabrejas, who considered that the amnesty does fit into the Constitution, although she raised some objections to it.
In his writing, Vicente Guilarte considers the amnesty a “measure of grace” that can be granted “unilaterally” by the Legislative Branch, but that cannot be granted “in exchange for any onerous consideration”: “Well, that radically distorts its cause;
going, in civil terminology, from gratuitousness to an onerousness that blurs its essential nature as a measure of grace.
A kidney can be donated for free, but not for a price.
In the same way that it would not be possible to pardon, much less amnesty in exchange for onerous consideration.”
The substitute president of the CGPJ places the original sin in the pact closed between the socialists and Junts, which involved the granting of the amnesty in exchange for obtaining the necessary votes for Sánchez's investiture: “The amnesty cannot be a synallagmatic bargaining chip for the achievement of a parliamentary majority for the investiture;
since it implies converting the measure of grace, by definition unilateral and free, into something bilateral and onerous.
We will have to ask ourselves, and I am not able to give an adequate answer, if from a constitutional perspective the extinction of criminal action can be a correlative benefit to obtaining an important political compensation.
“I believe I can conclude that there are no precedents, neither in Spain nor in the rest of the nations that have agreed to similar grace measures, where the amnesty has been inserted in a synallagmatic transaction with mutual benefits,” continues Guilarte, who emphasizes: “The prior political pact reached between his mentors, of which the amnesty has a real cause, if analyzed from a civil perspective it would hardly exceed the criteria of validity and legality required by article 1,276 of the Civil Code.
This precept contemplates that the “expression of a false cause in contracts will give rise to nullity, if it is not proven that they were based on another true and lawful one.”
The president of the Council considers it “surprising” that the “pharaonic” explanatory statement of the amnesty law remains “silence” about this political pact;
and he alleges, as a justification for promoting the norm, the “general interest” that is sought with “the political pacification and coexistence” of Catalonia.
“A purpose that, however, was never previously outlined in the electoral program of its grantor,” Guilarte reproaches the PSOE.
“The reason for the law expressed in the explanatory memorandum is not what truly underlies the promised provision and which takes the form of promoting the amnesty in exchange for parliamentary support for the investiture of the President of the Government.
The CGPJ, whose mandate expired more than five years ago, has among its functions to report on draft laws, but the amnesty for those accused of the
process
has not been submitted to that consultation because it was processed as a bill (presented by the PSOE ) and not as a bill (presented by the Government).
However, the PP used its absolute majority in the Senate to demand a report from the CGPJ and another from the Prosecutor's Office.
The State Attorney General, Álvaro García Ortiz, refused to make his own, but the governing body of the judges – which already spoke out against the amnesty even before the first version of the law was known – did agree to write one .
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