That’s the way it is

There are governmental pardons that may be manifestly unjust, but the government need not justify them. Because "that's the way it is."

The Supreme Court has decided not to admit a suit for improper conduct (in the sense of issuing a ruling in the knowledge that it is unjust) against former Prime Minister Zapatero and his Justice Minister Francisco Caamaño for the pardon issued late last year by the outgoing Socialist government to the chief executive officer of Banco Santander, Alfredo Sáenz; to the same bank's representative in Catalonia, Miguel Ángel Calama, and to their legal advisor, Rafael Jiménez de Parga.

The events date back to 1994 when Sáenz, then president of Banesto, embarked on an aggressive campaign of debt collection from defaulters and — with the help of Calama and Jiménez de Parga — brought a lawsuit for fraud and asset stripping against the entrepreneurs Pedro Olabarria, Luis and José Ignacio Romero and Modesto González, from whom he demanded 600 million pesetas (3.6 million euros) owed by the Harry Walker group, in the knowledge that these men were only minority shareholders. The accusations had no substance and were merely part of a maneuver to recover the bulk of the granted credit by hook or by crook; but Judge Pascual Estevill, to soften them up, sent the four businessmen to prison. The truth, though, came to light and two years later the bent judge was the one behind bars.

For this affair, in 2009 a court sentenced Sáenz to six months in prison and a 9,000-euro fine. Obviously he would never see the inside of a cell due to the length of the sentence and, given his 10-million-euro-plus salary, the fine was pocket money. But the conviction contained a catch: it caused him to lose his "honorability;" a legal condition for practicing as a banker.

After an appeal, the Supreme Court reduced both elements of the sentence, the prison term being reduced to three months' house arrest, but also added as an accessory penalty a suspension from the exercise of his profession for the duration of that arrest. This meant he would have to step down from the presidency of Banesto.

To escape this, Sáenz appealed to the Constitutional Court, but the Supreme Court blocked the appeal on the grounds that "reasons of justice and equity" were not involved.

However, Zapatero and Caamaño granted him a full pardon, leaving him "free of any legal disabilities deriving from the sentence, including any impediment whatsoever to the exercise of banking activity." Bingo.

Now the Supreme Court has decided not to accept the suit against Zapatero and Caamaño because, though the 1870 law requires "reasons of justice, equity or public utility" for the issuing of governmental pardons, it does not demand explanations. The text of the ruling points out that a pardon was a royal prerogative and remains a "legacy of absolutism," and is hard to square with a legal system where, in theory, all the branches of government must be subject to the law and accountable for their actions. After a passage of juridical prose about the general persistence of arbitrary and discretional powers, it concludes: "Given the present framework of legislation, this is the way it is."

However, the court points out that the measure of grace affects only the penalties, and does not erase the existence of the sentence, or the criminal record, which is resistant to pardon, and considers that it does not interfere with the banking authorities' duty and responsibility to disqualify Sáenz. This may be a flight of verbal ingenuity on the part of the Court, but the banking authority seems disinclined to interpret it that way.

Like the wrath of the hurricane, that of the law hits the poor harder. But that's the way it is.