Democracy Without Justice in Spain. Omar G. Encarnacion

Republicans during the Civil War.¹ The upkeep of Franco’s burial site is underwritten by the Spanish state, including, until 2007, a mass held by Benedictine monks on the anniversary of his death.

      Instead of justice and truth, forgetting and moving on prevailed in Spain. For decades into the new democracy the memory of the past, especially that of the Civil War, appeared to have vanished among the usually contentious Spanish political class. The only occasion that merited a reference to the past was to stress the importance of not talking about it. In 1977, in anticipation of the first democratic elections since 1936, communist leader Santiago Carrillo, the most prominent member of the democratic opposition to the Franco regime, noted that “In our country, there is but one way to reach democracy, which is to throw out anyone who promotes the memory of the Civil War, which should never return, ever. We do not want more wars, we have had enough of them already.”² Yet more unexpected is that the pact to forget succeeded in turning the past into a taboo among ordinary Spaniards, by making discussions of the violence of the Civil War from either side of the conflict and the political repression of the Francoist era inappropriate and unwelcome in almost any social context. Commenting on the apparent disappearance of the memory of the Civil War among the Spaniards, the Economist noted in 2006: “The pact of forgetting has meant that mere mention of the Civil War has been kept of out everything, from politics to dinner-party conversations.”³

      Oddly enough, for a piece of legislation generally seen as an act of deferred justice against the Franco regime (Aguilar, Balcells, and Cebolla-Boado 2011), the 2007 Law of Historical Memory is remarkably short on accountability. Indeed, the law left in place much of the status quo about the past introduced by the Pact of Forgetting. Although the law offered reparations to those victimized by past injustices and condemned the Franco regime as “illegitimate,” it did not overturn the 1977 amnesty law, making it highly unlikely that anyone associated with the old regime will ever face prosecution on human rights charges. Ironically, today in Spain only those seeking to bring former Franco officials to justice are risking prosecution in connection to the crimes of the Franco regime. In 2010 a court indicted “Super Judge” Baltazar Garzón, the maverick magistrate who gained worldwide fame in the late 1990s for his audacious indictment on human rights abuses of Chilean General Augusto Pinochet, on charges by the conservative group Manos Limpias that Garzón had abused the powers of his office by attempting to use the Law of Historical Memory to prosecute former Francoist officials.⁴ Garzón was eventually acquitted, but other charges forced him to relinquish his judicial post, thereby ending all meaningful efforts to bring justice to the Franco regime.⁵

      More striking is that the Law of Historical Memory did not automatically nullify the verdicts of those sentenced by Francoist tribunals, including the kangaroo courts created after the end of the Civil War in 1939, which convicted thousands of people for simply having supported the Republican government, nor did the law call for the organization of a truth commission to examine the human rights abuses committed during the Civil War and the Francoist period. To its credit, the law mandates removal from public spaces of monuments that glorify either of the sides that fought the Civil War (a stipulation that applies mostly to the numerous monuments honoring Franco and his regime, including those in Catholic churches, a reflection of the symbiotic relationship that developed between the old regime and the Catholic Church), but it protects monuments that possess “historical and cultural significance,” including Franco’s burial site at El Valle de los Caídos.

       The Lines of Inquiry

      The rise and persistence of the politics of forgetting in Spain pose important questions about how nations settle a “dark” past and the consequences of the polices put in place to deal with that past for the emerging democratic regime. Foremost among these questions is why the reluctance to adopt conventional means for dealing with the political excesses of the old regime, such as political trials and a truth commission? What explains this apparent case of Spanish exceptionalism? And what has been the legacy for Spanish democracy and society at large of the deliberate repression of the memory of the violence and political excesses of the Civil War and the Franco dictatorship entailed in the pact to forget? Did the absence of justice and truth prove to be a hindrance to democratization in Spain? These questions gain much significance when we consider, first, the bundle of contradictions, ironies, and paradoxes embedded in the case itself.

      Given its troubled history, Spain was an unlikely candidate for adopting a strategy of forgetting and moving on. A voluntary agreement to repress the memory of a violent past would be remarkable for any society, but especially for Spain, a country notorious for its anarchic character, polarized parties, and rebellious civil society, and hence a longstanding scholarly reputation for being “different,” a euphemism for unfit for democracy that darkly hinted at the Spaniards’ propensity for violence, revenge, and recrimination (Wiarda 1973). Predictably, the forecasts issued by scholars for Spain around the time of Franco’s death failed to foresee the rise of a collective will to forget. By and large, these forecasts warned about the return of the old habits that for centuries have nourished the well-known myth of the two Spains: a country tragically divided into two halves that can never find a way to get along. These sentiments were perfectly captured by historian Richard Herr (1971: 27), writing in the twilight of the Franco era:

      Spain’s future is still wrapped in mystery. Like every country that has been ruled recently by a strong man, it is subject to the question, after he goes what? For Spain this anxiety is especially keen because it has a long history of political instability, going back to the nineteenth century. Spaniards have appeared by nature rebellious and politically mercurial. Indeed their recent striving for economic betterment has been interpreted as a sublimation of the energy that they would normally devote to political agitation, a sublimation forced upon them by the ban on politics. Should the ban end, many persons, both friends and enemies of Franco, anticipate that Spaniards will return to their former habits.

      Moreover, social science theories would have predicted that Spain after Franco was destined for a robust encounter with some form of reckoning with the past. Arguably, the most reliable variable for understanding whether justice against the old regime would be part of the transition is the extent to which state-sponsored violence and repression penetrated the social fabric (see Borneman 1997; De Brito et al. 2001; Hite and Cesarini 2004). From this perspective ensues the popular hypothesis that the more violent and repressive the legacy of the previous regime, the more vigorous and comprehensive the attempt at justice will be. There is much logic to this thinking, since an especially repressive regime is likely to embolden citizens to demand justice from the new democratic regime during the transition while creating a powerful incentive for the new government to want to hold the old regime accountable for its crimes.

      Assumptions linking the legacy of violence and repression of the old regime to the dispensation of justice during the transition are powerfully challenged by Spain, which under Franco endured far more violence and repression than either Portugal and Greece or South America’s infamous bureaucratic authoritarian regimes (Argentina, Brazil, Chile, and Uruguay), countries that all underwent some kind of reckoning with the past. To be sure, the lion’s share of the violence and repression that gave Franco notoriety took place in the early 1940s, so that by the mid-1970s the worst memories of the Franco regime were receding into history. But the regime remained repressive and violent through its last days, a point often overlooked by studies of the late Franco era (Townson 2007). As will be seen later, in its final years the Franco regime turned quite repressive, especially after the 1973 assassination of Admiral Carrero Blanco, Franco’s designated political heir, which triggered the return of political executions and restrictions on civil society organizing and public mobilization not seen in decades.

      Also noteworthy is that while stubbornly refusing to look into the dark history of human rights abuses under Franco, Spain since the democratic transition has accumulated an outstanding record of complying with international human rights conventions. Spain is a signatory to all the major international human rights accords, including the International Covenant on Civil and Political Rights, the accord that tabulates the first half of the rights and freedoms enshrined in the Universal Declaration of Human Rights, which Spain signed in April 1977, in the midst of the transition to democracy, and the European Convention on the Prevention of Torture, which it signed