A Revolt From Above

As La Vanguardia’s veteran Madrid correspondent Enric Juliana has noted, the current mobilizations can be traced back to the call to arms from the PP ex–prime minister José María Aznar on November 2. For Juliana, “twenty years after leaving office,” Aznar remains “the strategic director” of the Spanish right and the only figure with the authority to marshal its various forces (from politics to the judicial, media, and economic spheres) into action. “Pedro Sánchez is a danger to Spain,” insisted Aznar, as it became clear that the PSOE and the Catalan parties’ amnesty negotiations were nearing an agreement. “We are facing an unprecedented constitutional crisis,” he continued. “Whoever can do something, should do it, and whoever can contribute, should contribute. There is no room for inhibition.”

The following day, the Guardia Civil paramilitary police moved to publish its long-awaited report on the 2019 “Democratic Tsunami” protests (which saw thousands peacefully occupy Barcelona’s airport in response to the jailing of nine Catalan leaders) — alleging ERC’s number two, Marta Rovira, was the mastermind behind the coordinated actions. This was followed on November 6 by the country’s highest criminal court, the Audiencia Nacional, indicting Rovira and exiled Catalan premier Carles Puigdemont on “terrorism” charges relating to the 2019 protests.

This incredible act of judicial overreach was aimed at derailing the amnesty talks and further ratcheting up tensions. Reactionary judge Manuel García-Castellón justified the outlandish charges with the fact that an elderly American tourist had died of a heart attack at the airport on the same day as the occupation. This was a completely unrelated event, which had not been given much weight during the previous four-year investigation.

With the highly charged statement from the CGPJ coming on the same day as the terrorist charges were announced, it is not surprising that the subsequent night (November 7) saw the first major clashes between police and protesters outside the PSOE headquarters, as a crowd of more than eight thousand people sought to surround the building. The following morning, Abascal called on the police to rebel against further “illegal orders” to charge the protesters, while one Guardia Civil union promised to “shed every drop of our blood in defense of Spain’s sovereignty and independence” as it warned of the “destruction of the criminal code” with the amnesty.

A layer of organized street fascists, numbering no more than a few hundred, were responsible for the majority of the violence, while a broader group of far-right supporters and national-Catholic nostalgists gave them cover — engaging in theatrical displays of racism, homophobia, and authoritarian nationalism. The PP then managed to mobilize more than two million people on the streets last Sunday as party spokesperson Cuca Gamarra accused Sánchez of “a great electoral fraud” after he had ruled out an amnesty before July’s elections.

Yet as violent clashes continued, there was a growing sense that the mobilizations against the amnesty were now getting away from the conservative establishment, which had fomented them with their maneuvers from the upper echelons of the state. As Sumar MP Íñigo Errejón wrote in El Diario, this was not so much an orchestrated plan as “a [political and social] bloc moving organically rather than mechanically — with internal frictions and contradictions, with more extremist sectors and others more cautious, with fights for protagonism, with advances and setbacks, but each moving in a shared direction.” He continued:

Ideally [for these actors, this is moving toward] preventing the investiture. But above all, [the aim is] to encircle the still unborn government, to leave it a hostage from the beginning, on the defensive, with its room for maneuver limited. . . . The apprentice squadrons that have gathered at the [PSOE] headquarters are happy to act as auxiliary infantry for this bloc, creating a climate in which one bold step can lead to others.

A Necessary Amnesty

Yet this reactionary onslaught has also helped to harden the opposing bloc, and dissident PSOE members disputing the amnesty largely faded into the background faced with the images of the party headquarters under siege. Even though recent polling shows a majority of PSOE voters outside of Catalonia oppose the law, 87 percent of party members backed the deals reached with the pro-independence parties in an internal vote last week. Faced with the reactionary alternative, most progressive voters in places like Andalusia, where there is stronger Spanish-nationalist sentiment, accept that if the PSOE is to govern, it must make deals with Basque and Catalan allies — even if they do not agree with the contents of the amnesty legislation.

In his investiture speech, Sánchez characterized the law as a political “necessity” “given that the circumstances are what they are,” i.e., the balance of forces in parliament. Yet he added that this could be “made to be a virtue.” For Sánchez, a move toward reconciliation between Catalonia and the rest of Spain is in the “common good” — and far from simply a cynical means to stay in power, his negotiation of the law builds on his previous moves to defuse the territorial conflict. These moves over the last four years included the 2021 pardons of the nine jailed Catalan leaders, who had been convicted of sedition in a Supreme Court case heavily criticized by Amnesty International as “contravening the principle of legality” and “threatening rights to freedom of speech and peaceful assembly.”

The term “lawfare” does not appear in the text of the amnesty law itself, which is designed primarily to secure the Constitutional Court’s approval. But this word does feature in the broader political agreement signed between PSOE and Carles Puigdemont’s Junts — a recognition that the Right framed as further proof of an assault on judicial independence.

Yet the scope of the amnesty, and the need to include various cases of activists wrongly accused of terrorism by the Audiencia Nacional, also represents an implicit admission of judicial activism. In this respect, the law’s breadth captures the scale of the crackdown against the independence movement, which has seen a number of protesters receive prison sentences, officials barred from office, and fines adding up to the millions of euros. Hundreds more pro-independence supporters still await trial for a range of offenses.

The law is also specifically designed to limit judges’ room to prevaricate and delay its application, and to ensure exiled leaders such as Puigdemont and Rovira are able to return to Barcelona, even as Supreme Court justice Pablo Llarena is likely to challenge the law’s constitutionality. Llarena is set to launch formal queries to both the Constitutional Court and the European Court of Justice, which in theory could delay its application for up to two years. The text of the law attempts to preempt this by stipulating a two-month deadline to apply the measure — and stating that possible appeals will not serve to suspend the law’s application.

Whether this is sufficient to secure such right-wing judges’ acquiescence in applying the law remains to be seen. Writing in CTXT, Guillem Martínez has raised doubts over whether such legal provisos are binding with respect to the European Court of Justice. And conservative constitutional law professor Teresa Freixes has argued that judges “are not obliged to apply legislation which they consider to be contrary to European Law.” At a minimum, it is likely to be months before Puigdemont can enter Spanish jurisdiction, as he prepares to be Junts’ candidate in Catalan elections expected to take place within eighteen months.

A Difficult Path Forward

Faced with the right-wing attempt to generate a sense of crisis, Sánchez’s investiture speech sought to project an idea of institutional normality, laughing off PP leader Alberto Núñez Feijóo’s allegations of “political corruption” and “fraud.” Against the Right’s bad-faith constitutional formalism and faux concern with the rule of law, he reminded Feijóo that “the last time the PP governed, it was legal to pay a [full-time] worker €700 [$760] a month.” With the minimum wage now standing at €1080 [$1175], Sánchez argued that “what the Right really does not want is us continuing to improve the labor conditions and salaries of workers.”

Electorally, Sánchez is Europe’s most successful center-left politician of recent decades, and one of the few to understand that social democratic forces need to engage with the radical left to avert decline. Yet many of the social advances secured during his previous term in office have depended on the ability of his junior coalition partner, the radical-left alliance Unidas Podemos, being able to exercise real leverage in the cabinet, often acting in tandem with the country’s major trade unions.

As Communist Party leader and left-wing MP Enrique Santiago told me last April:

We view the two major class-based unions as strategic allies, who have played an essential role in advancing the government’s social and labor agenda. . . . We [on the Left] would not have been able to advance a series of key measures [against PSOE resistance], such as the Rider Law [protecting gig workers] or the labor law reform, without their clear backing.

This alliance will be crucial going forward as a reorganized left wing, now under the Sumar banner, will be working in a more complex balance of forces — in which the center-right Catalan and Basque nationalists (closely tied to the Barcelona and Bilbao bourgeoisie) will have an effective veto over all legislation. In this respect, while the PSOE-Sumar programmatic agreement, reached on October 24, includes important social measures around reducing the working week, further increasing paid parental leave, and a large-scale public housing program, the new coalition’s margin for delivering on such promises will be very tight.

It is also a Left that will continue to suffer internal divisions. Sumar’s position will likely be further weakened by Podemos’s potential departure from the alliance, after reports across progressive media that Yolanda Díaz has refused to offer it either a ministry or a position as one of Sumar’s parliamentary spokespeople.

The factional warfare has been unrelenting over the last year, but Díaz’s decision to completely sideline this once-dominant force looks like a tactical error. Her record as minister is unparalleled on the European left, showing herself to be a brilliant institutional actor. But she has yet to fully convince as a party-political leader — and her muddled election campaign has been criticized internally even by left-wingers closely aligned with her.

Beyond these intraleft tensions, the new coalition must also prioritize a rule change for the renewal of the CGPJ. It controls all appointments to the Supreme Court and Audiencia Nacional and has had an artificial conservative majority since its current mandate expired in December 2018. This has been the result of the PP blocking its usual replacement, in a tactic taken straight from US Republican playbook. Last December, the coalition did tip the balance of power on the Constitutional Court by forcing through the appointment of new judges — though only after the court’s previous conservative president sought to block the Senate voting on the nominations, in what Sánchez described as a “crude plot” to “muzzle parliament.”

Now, however, Spain’s broad-left government must go further and confront the conservative party’s undue hold on the courts more directly. That is the only way to end judges’ repeated attempts to undermine the government’s authority.