Europe Legalizes Political Forgetting -By Fransiscus Nanga Roka

Court of Justice the latest ruling coming as it does from the EU’s highest court on a matter that may well haunt the bloc longer than any Catalan referendum ever could. Far from resolving a legal dispute, the Court of Justice of the European Union (CJEU) green lighted Spain’s controversial amnesty law for Catalan separatists as compatible with EU law, accepting a political gamble dressed up as reconciliation.

The reasoning of the court is almost deceptively simple: Amnesty belongs to national competence, does not violate EU financial rules and pursues a legitimate aim, easing political tensions. In Brussels, they call that stability. To put it more plainly: It is the normalisation of selective accountability.

The Spanish government said the law was vital to mend the wounds, which opened during the 2017 independence crisis. The CJEU agreed. But reconciliation without accountability has an even greater risk: institutional amnesia. The law washes away criminal and civil liability for hundreds of separatist figures, redrawing the line between justice and political necessity and now, the EU blessed that redraw.

But the ruling reveals a deeper rupture, not only in Spain, but also in Europe’s legal order itself.

But while Luxembourg has had its say, Madrid’s also not listening across the board.

The amnesty is not being applied to Carles Puigdemont, the former leader of Catalonia’s independence drive who has fled abroad, Spain’s Supreme Court ruled. And the reason is telling accused misappropriation of public funds. Judges contend that misappropriating taxpayer money to underwrite an illicit referendum is one thing, but that the amnesty does not eliminate this stain especially when personal enrichment is suspected.

This paradox at the heart of Europe’s rule of law. Inside the EU, forgiveness makes political sense; in Spain, its higher criminal court remains wedded to the legal logic of punishment. One set of practices enables forgetting; the other demands it remembers.

Now he is in a legal no-man’s-land that actually encapsulates Europe’s contradictions: politically rehabilitated in principle, legally chased in practice.

It is an unmitigated political win for his prime minister, Pedro Sánchez of Spain. This so-called amnesty law was never about reconciliation, but rather about survivals in parliament. Sánchez’s government would almost certainly have fallen without the support of Catalan separatists. By ratifying that bargain by a court decision it is also legitimised retroactively.

However, legitimacy is not trust.

Well all know there be nothing more dangerous across Europe if stability on the political side is reason enough to rid yourself of accountability for your acts, then what does one do with the rule of law when it gets in the way? The EU has long styled itself as a defender of the rule of law, especially when it comes to politically-motivated breaches in member states like Hungary or Poland. With that has come a less absolute moral authority.

In the meantime, however, the human results are not equal. About 400 Catalan activists and officials have already received the amnesty. Puigdemont, on the other hand is a still fugitive and his fate now lies with Spain’s Constitutional Court where it is believed a final ruling will not come for months to come.

And what results is not reconciliation, but stratification: justice that is selective, forgiveness that is unequal and legality that is biased by the imperatives of politics.

Europe wanted to avert a diplomatic crisis. Instead, it might have formalized one.

Because when the courts start to enforce political forgetting, the question is not whether the law will be followed but what memory the law seeks to forget.

Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia