The foundation stone of the current democratic system is the Amnesty Law of 1977, a law which allowed a system to be built by concentrating on the future and trying to ignore the past. However this Amnesty law is outdated and is now creating the main sticking point with regards to the case against Garzón who is said to have not respected this law. Nevertheless it is the Amnesty Law which is preventing the true expression of democracy, freedom and human dignity and rights.
Despite what some might say, this isn’t about Garzón believing himself to be above the law. This is about finding out the truth about the past and whether or not war crimes were committed. His aggressive pushing at the boundaries of the law was applauded when it involved terrorism but now he has crossed an invisible line.
As always with law, the interpretation of individual laws is extremely important. According to the Supreme Court, Garzón has overstepped his responsibilities by declaring himself capable of pursuing the cause against crimes committed during the dictatorship. The issue is that the Amnesty Law is incompatible with both international law and the Spanish constitution (article 10.2). Is international law more important than national law? The Spanish judiciary were certainly delighted with Garzón’s pursuit of Pinochet and other international crimes. What has changed? Nothing, except the crimes being investigated happened in Spain. It’s clear that when the law is so contradictory that prevarication can be both argued and dismissed. Consequently, in essence this case is purely a political issue.
The Amnesty Law has already been criticised by the U.N. for its infringement of human rights. Such laws are useful for starting a new regime, but are not compatible with the long term development of a democracy (this is the experience of several countries in South America). What we have is an important foundation stone of the current regime which is incompatible with the development of the Spanish democracy. Something has got to give. Will it be the Amnesty Law, or will it be the democracy? What is certain is that this is a defining moment in the future course of history, memory and justice in Spain.