Abuse of arbitrary power

The protest by hundreds of judges over the pardon granted to four Mossos d'Esquadra (Catalan regional police) who had been sentenced to four-and-a-half years in prison for torturing a person arrested by mistake, has highlighted the degree of arbitrariness with which the government exercises this prerogative. The fact that the Rajoy government had a strong interest in letting these policemen off is obvious from the reiteration of pardons: first they were given a partial pardon, and, as this did not entirely exempt them from a spell behind bars, a second pardon was required to prevent them from penal sentences. The government has not formally explained the reason for the pardon, merely suggesting the existence of doubts as to the guilt of the policemen.

An anachronistic law of 1870 — partially modified after the Constitution of 1978 — provides for the granting of pardons. Governments of differing political stripes have used it to pardon a former regional premier found guilty of numerous irregularities (Juan Hormaechea), a malfeasant judge (Javier Gómez de Liaño) and, though only in part, two former officials under a Socialist government (José Barrionuevo and Rafael Vera) for their involvement in the GAL anti-ETA death squads.

The present government has, indeed, done no more than continue similar practices. Thus, it has issued pardons to certain military officers convicted of falsifying the identities of 30 of the 62 soldiers who died in the Yak-42 transport plane crash; a number of municipal officials who had sold illegal building licenses; and, now, several policemen guilty of torture.

No one is questioning the legality of such decisions, but the time has come to set limits to these powers. The Constitution guarantees that "arbitrary action on the part of public powers is forbidden," and for this reason it is unacceptable that a government can pardon any convicted person without explaining the reasons for its decision, something which the courts must do with every one of their rulings.

Without closing the door on pardons in cases where there is a clear justification — for example, to prevent the imprisonment of persons sentenced long after their crimes were committed, when their rehabilitation is sufficiently demonstrated — it must be the task of Congress to prepare a law that would link pardon more closely to the opinion of the court that passed the original sentence, and oblige the government to explain why, in certain cases, it impedes due compliance with final rulings of the courts — which is what a pardon amounts to.

Limits must also be set to the custom of pardoning even the most lenient sentences such as disqualification or suspension from holding public office, which gives rise to unacceptable situations whereby individuals who have been convicted of gross misconduct in office can be restored to the very posts in which this misconduct occurred.

A new regulation is the only way to put an end to the Executive branch's "legal" interference in the action of the other branches of government, and to allay the irritation caused by the granting of pardons to crooked judges, corrupt officials, torturers and the like.