Just a few days after asking the conservative magistrate José María Macías to exclude him from the court that will decide on the amnesty, the State Public Prosecutor’s Office once again defends the government with a letter in which it asks the Court Constitutional Court (TC) to reject the question of unconstitutionality raised by the Supreme Court by considering its order as ill-founded and its arguments of a political nature. “They go far beyond the legal-constitutional nature of a question of unconstitutionality,” he underlines.
In its memorandum of allegations, to which ABC has had access, the State Legal Services maintains that the order in which the High Court questioned section 1 of the amnesty law “suffers from procedural defects “, his arguments concerning the relevance of the trial “are totally insufficient” and furthermore “do not justify” why it considers that the principle of jurisdictional exclusivity is violated. In addition to this principle, the Criminal Chamber considers that the standard violates the principles of equality, legal certainty and the prohibition of arbitrariness.
The public prosecutor emphasizes that the approach to the present question of unconstitutionality “suffers from several formal defects” and that its content seems more typical of an appeal for unconstitutionality “by calling into question the law as a whole” in its challenge to Article 1, “and without discriminating which provision is applicable to the case (judgment of applicability), nor formulating the necessary judgment of relevance.”
In this sense, he emphasizes that the Supreme Court “limits itself to saying” that “the law as a whole is unconstitutional” without proving “the relevance of this statement for the specific case”. “This consideration and those included in the said article have an incontestable political character,” he asserts in the 37-page document.
The public prosecutor adds that “it is not enough for the judicial body to raise doubt” about the constitutionality of a provision, but that “its justification is essential; question which is absent from the Supreme Court order.
According to him, the law “has no impact” on the separation of powers, Well, in all cases, it is the judiciary that decides whether the people who fall within the scope of the law meet the conditions for the law to be applied to them.
The principle of equality
Regarding equality, it emphasizes that “the difference in treatment provided for by law is not a discriminatory measure” because the aforementioned right only requires “equal treatment” for equal cases and this case is not comparable to others.
“We must start from the particular character presented by this standard: This is an exceptional and unique standard. This is not a minor issue since this particularity is precisely what justifies differentiated behavior between citizens,” he asserts.
In this sense, he emphasizes that “the legislator considered that the situation of possible beneficiaries of the amnesty (…) is not the same as that of other subjects who have also not respected other laws, but without connection with the process of independence and with other different circumstances.
“The law therefore establishes an identical objective and subjective scope between all those who find themselves in the situation determined and defined by the norm, which will then be clarified by the competent judicial bodies.”
Remember the scripture that The legislative power is “responsible for weighing the interests at stake”. For this reason, “it enjoys a wide margin of freedom, based on its democratic legitimacy”. And he insists: “It was the General Cortes which exercised this judgment of expediency, considering and deciding that the actions falling under article 1 were amnesty. This function corresponds only to the Cortes, as the proposal specifies, and what must be analyzed exclusively, beyond, again, political positions, is to know whether or not the legislator’s option is contrary to the principle of equality. .
Also reject which violates the principle of jurisdictional exclusivity because it is not “a self-applicable law” but rather “it must be applied by the judicial bodies, while respecting their jurisdictional autonomy”.
In the same line, excludes a violation of the principle of legal certainty because “the law clearly establishes in this precept what the amnestied conduct is, and no criticism as to the legal technique used is made by the Supreme Court”.
The State Attorney’s Office also accuses the Supreme Court of “making speculations on possible parliamentary majorities corresponding to certain groups or others within the Chambers. “We cannot argue legal uncertainty on the basis of hypothetical change of forces in the parliamentary arc but in a well-founded application of the norm to the specific case, which is not specified in this case”, he underlines.
