With less than 24 hours until the amnesty law promoted by the PSOE with the support of pro-independence partners begins its parliamentary journey, the legal service of the Congress has already decided on the text. The General Secretariat, led by the newly appointed lawyer Fernando Galindo, gave his approval for the Congressional Board to qualify the law this Tuesday, and, from there, it will be processed by Congress and the Senate until final approval. However, the lawyers do not want to go into the constitutionality of the bill and leave it in the hands of the Constitutional Court.
In a 21-page report, they concluded that the “qualification and acceptance process for the processing of parliamentary initiatives is not configured as a first control of constitutionality”; that is, it is not for lawyers to decide whether a law is unconstitutional except in “exceptional cases” because it may involve “violation of the fundamental rights provided for in Article 23 of the Constitution”. In fact, they pointed out that they can only “knock down” a law before it goes through the Board for three reasons: for formal reasons (that is, the rule does not meet the regulatory requirements); because “the content of the initiative is negated by a ‘clear and obvious’ unconstitutionality”; or because “admission for processing does not constitute ‘a manifest non-compliance with what has been resolved by the Constitutional Court'”.
The first step followed by a law that enters Congress is the qualification of the Board. In this sense, before the qualification itself, the lawyers prepare a note (it is not binding) of the legal issue for the Board to decide if the law is accepted for processing. In this understanding, the Board has a majority of the left (five members from the PSOE and Sumar compared to four from the PP) and, therefore, will approve the law this Tuesday after receiving the consent of the lawyers. After the qualification, the parliamentary process begins with the opening of the amendment period and the raising of the plenary session.
In the opinion of the General Secretariat, none of the three reasons to “remove” a law before it can be processed occurs with amnesty. In this sense, first of all, the lawyers consider that the text meets the formal requirements because it is in accordance with Article 124 of the Regulations of the Congress (the law contains a statement of reasons and necessary background) and Article 126 (presented by the parliamentary group).
In addition, secondly, the legal services did not find it “possible to conclude that there is a clear and obvious conflict with the provisions” of the Constitution, in particular with the provisions of Article 62.i) of the Constitution, which prohibits the giving of “general pardon.” “It is not possible to show that any amnesty in itself is a violation of the prohibition of general pardons, since the Constitutional Court has clearly distinguished the two institutions,” said the report of the lawyers of the Congress. “Because of this, it seems that there do not exist in the Constitution or in the constitutional jurisprudence sufficient parameters or elements to determine whether there is an open and manifest conflict with the Constitution,” the report concluded, thus avoiding the rule of constitutionality of amnesty.
Finally, thirdly, the General Secretariat “is not aware of any resolution” of the Constitutional Court that prevents the processing of this initiative.
Likewise, in this report approving the amnesty, the new senior attorney and general secretary of Congress contradicted his predecessor in office, who spoke against the amnesty law presented by the ERC in 2021.