Fully sharing the concern of the members of the Judiciary over the unusual attack that the newly enlightened legislative proposal of amnesty represents for that Branch and the pillars of the rule of law, I am one of those who think – and I have it written in these same pages – that judges and magistrates should not rule on public matters -as is, for example, this legislative initiative-, more than through the resolutions that they dictate or have to dictate in the exercise of their jurisdictional function with respect to it, and that, outside of that function, at most, only in an academic or doctrinal field they should express themselves on the basis of their pronouncements in this regard.
But having established the above, it is striking that, as the reverse of said coin, the magistrates, especially those who exercise constitutional jurisdiction, must analyze the norms subject to their constitutional control, making absolute abstraction of the manifestations and declarations of the legislator that each day they reveal some (real) reasons for the birth of those norms that fundamentally contradict the (false) reasons for their promulgation set out in the norm itself. The constitutional judge must not actually speak outside the pronouncements of his function about the norm whose validity he judges, but, however, the politicians who promulgate them can, without legal consequences of any kind on the validity and validity of the norm that illuminate, lie openly and publicly about the real reasons for their approval.
The concept has already landed: all public opinion knew and knows that it was absolutely false that in Spain sedition and embezzlement for political purposes were decriminalized in order to, as the explanatory statement of the organic law of modification of the Penal Code approved by Pedro Sánchez’s Government, achieve the “harmonization of our criminal legislation with the standards most clearly established in the legal doctrine and practice of the countries of the European Union.” That was and is a lie: the “standards” of the European Union do not exist on this matter, European countries generally punished and punished sedition more severely than Spain.; and, of course, none of them lightened or lightened the penalties when a public official embezzles public money to achieve his political objectives. Whatever the spurious explanatory statement of that rule said, the real reason for its promulgation was to ensure Pedro Sánchez’s permanence in the Government of Spain thanks to the parliamentary support of the criminals prosecuted for the coup d’état in Catalonia in 2017 favored by reform.
The same happens with the real reasons for the despotic organic law proposal registered by the PSOE to amnesty criminals who remained unprosecuted -and therefore excluded from the grace of the pardon- for the same attack of October 2017. All of Spain and all of Europe know that it is a lie that, as the explanatory statement of such a shameful normative proposal states, its purpose is “the achievement of a general interest, such as the need to overcome and channel deep-rooted political and social conflicts, in the search for improving coexistence.
“The Constitutional Court will be indifferent if the purpose of the norm, an impossible improvement of coexistence, is a pure fraud”
The beneficiaries of the amnesty themselves express every day that they will repeat the crimes for those whose criminal action will be extinguished by the amnesty (thus overcoming and channeling the conflict caused by their crimes?), publicly warning the very promoter of the law of this; who, to further disgrace and indignity, literally allowed himself to laugh from the Congress rostrum because he and no one else was the one who obtained his investiture in exchange for the impunity of those beneficiaries. A burst of laughter that will certainly contribute to a simple strengthening of coexistence and the general interest, as the explanatory memorandum of the legislative proposal in question states with no small amount of derision.
Faced with the impudent and legally irrelevant display of lies as the engine of legislative power, which must regulate social relations, it happens that when a court has to analyze the validity of an agreement to regulate the relationship between individuals, One of the reasons that can technically lead to the declaration of nullity is the falsity of the formally expressed cause. and that encourages business. Thus, if in order to defraud my creditors I express my intention of liberality by donating in extremis my assets to a third party, in cahoots with me in consilium fraudisjustice will annul this transfer due to mendacity in the cause of the business, thus guaranteeing that my creditors collect from the assets that I intended to steal from them.
But, as we say, that is not the case with laws. We will see an entire Constitutional Court rule on the formal constitutionality of the future amnesty law knowing each and every one of the magistrates that make up that body, that each and every one of the words that are included in their statement of reasons are a lie, that everything is false. Thus, the material validity of the norm will be removed from its constitutional control, which would have to reside in the veracity of the reasons that encouraged its promulgation. The Constitutional Court will be indifferent to the fact that it is a pure fraud, a lie, that the purpose of the norm is, as its explanatory statement states, an impossible improvement of coexistence or the unviable channeling of a political conflict when the criminals who They caused what they promise is recidivism.
This shielding of the legislator’s mendacity in the constitutionality trial, This legal irrelevance of fraud in the exercise of legislative power does not easily fit into a democratic system.. Even the fact that ours is a non-militant democracy does not justify that an entire society and its jurisdictional control bodies have to blindly assume as irrelevant to the validity of a norm that the legislator openly lies about the reasons why he dictates it. It is not only that this fraud in the exercise of legislative power shows a brutal failure of the system of checks and balances What must prevent the arbitrariness of the ruler is that it is such an aberration that it compromises the conditions of concord, balance and coexistence that healthily allow a political community to believe that it is not subject to tyranny, that is, to despotic violence. of the unjust law.