Democracy Without Justice in Spain. Omar G. Encarnacion

class during the transition, echoes what Nietzsche (1983: 62) referred to as “active forgetting,” which he defined not as a simple failure of memory but rather as a concerted effort to repress the memory of selective events from the past in order to envision possible futures. More specifically, for Nietzsche (61), active forgetting entailed purging the mind of those traumatic events that are likely to “return like a ghost and disturb the calm of a later moment.” Santos Juliá—Spain’s leading intellectual historian, who has vigorously defended the decision of the political elites to set the past aside during the transition against the criticism that this amounted to an act of wanton disregard for history and truth-telling—is most closely associated with this line of thinking.

      According to Juliá (2003), forging a democratic project in Spain hinged on the capacity of the political class to echar el pasado al olvido (cast the past into oblivion) by enacting the 1977 amnesty law. Yet this action did not mean the politicians were condemning Spain to political amnesia. Amnesia, Juliá argues, implies involuntary loss of memory; amnesty indicates a decision to forget the past, arrived at after deliberate consideration of that past. Therefore, in defending forgetting Juliá has characterized as “grotesque” the idea that in the post-transition period Spain has lived under “a pact of silence” and that the history of the Civil War and the Franco dictatorship has been turned into a taboo.¹⁵ Juliá has also criticized memory activists, such as the Association for the Recuperation of the Historical Memory, for failing to recognize that even before the transition all the political forces had come to the realization that a general amnesty was indispensable for getting democracy off the ground, and for failing to appreciate that amnesty was essential for creating the democracy that today allows society to press demands for remembering the past.¹⁶

      Last but not least is the provocative notion that political forgetting in Spain is rooted in the country, especially the political elite, having emerged from dictatorship with pointed lessons about past political mistakes and ready to apply these lessons to the present. This view draws heavily upon the theory of “political learning,” which sustains that “all people, followers and leaders alike, are capable of learning from experience, and political actors rarely weather economic depressions, internal wars, or the violent collapse of a form of government unchanged” (Bermeo 1992: 274). The most talked-about lesson that the politicians drew from history as they undertook to democratize Spain in 1977 was that too much bickering and too little compromising aborted the previous attempt at democratization during the interwar Second Republic. Thus, a pact to forget was embraced by both left and right as an insurance policy against a similar outcome. According to García Cárcel, the agreement to “disremember recent history,” embodied an agreement of “prudence” and “auto-controls” about the perils of looking backwards arising from an obsession with “historical failure.”¹⁷

      A less self-evident historical lesson was that Spain had indulged in revenge and retaliation in handling the sins of the old regime in previous instances of regime transition. Therefore, when confronted with the conundrum of what to do about Franco’s political crimes, an effort was made to correct past excesses of transitional justice. It is notable, as Aguilar (2001: 98) points out, that the democracy established in 1977 is the only political regime in the twentieth century in Spain “that has not called prior regime leaders to account.” The Second Republic held the leaders of the Primo de Rivera dictatorship (1923–1930) accountable, as did Franco, with the leadership of the Republic, and as did General Miguel Primo de Rivera’s regime with the Restoration regime (1874–1931). Especially notable is the retribution policy implemented by the Republicans in 1931, which ended both the Restoration period and the Primo de Rivera dictatorship. The Republicans denied amnesty to the leaders of the Primo de Rivera dictatorship, forced the abdication of King Alfonso XIII, charged him with high treason, and created a commission to establish political responsibilities (as a prelude to future trials) that even some Republicans criticized as “too harsh” (Payne 1993: 40–42).

      Not surprisingly, the psychopolitical explanations highlighted above are suggestively echoed, whether directly or indirectly, by the rationalizations offered by the politicians for their decision to forgo justice toward the Franco regime. Virtually all the major political figures of the transition stressed the need to avoid abrir viejas heridas (opening old wounds), a surgical metaphor intended to convey both the pain and the danger of engaging in any revising of the past and the benefit of forgetting and moving on in securing both democracy and peace. No other occasion proved itself more adequate for making these justifications than the parliamentary debate that led to the enacting of the 1977 amnesty law, the legal-institutional backbone of the Pact of Forgetting. Politicians of every political stripe made the point that forgetting was the only way to break the cycle of violence, war, and recrimination that for centuries had defined Spanish politics and to consolidate peace. One of the most moving speeches was that of labor leader Marcelino Camacho, who, speaking on behalf of the Spanish Communist Party, observed (Aguilar 2002: 196):

      How could those of us who had been killing each other have made the peace if we had not erased the past once and for all? For us, in the same way as in the settlement of the injustices committed over these forty years of dictatorship, amnesty is a national and democratic policy, the sole measure which might close that chapter of civil wars and crusades. We, that is to say, the Communists, who have suffered so many outrages, have buried our dead and our resentments.

      Nor it is surprising that the politicians’ justifications for overturning the Pact of Forgetting in 2007 were couched in terms of the nation having finally overcome the traumas of the past due to thirty years of peaceful democratic co-existence. As Carlos García de Andoin, federal coordinator of the Roman Catholic wing of the Spanish Socialist Party, noted before the vote that enacted the 2007 Law of Historical Memory, “During the transition remembering the past meant re-opening divisions that we were not ready to deal with. The era was delicate and we needed to concentrate on reconciliation and leaving the past behind. Thirty years later things are very different, remembering no longer threatens the stability of the democratic system.”¹⁸

      Those who today champion a more truthful and ethical treatment of the past have expressed similar sentiments. Carlos Castresana, the lead prosecutor in the Pinochet case, and today an internationally renowned human rights lawyer, noted around the time of the parliamentary debate about the Law of Historical Memory:¹⁹

      The years of democratic transition were spent in a permanent state of anguished necessity of having to choose the least bad of bad options, which culminated in the untruthful process that gave us back our freedom. But is has been a while since that situation of emergency has been overcome. The prosperous democracy of today is sufficiently mature to handle the truth, in spite of those who deny this with their words and deeds. Our silence today is no longer mandatory, as it was during the transition. The truth about the past is the compensation that we owe those who made the miracle of our transition possible with the sacrifice of their silence.

      The Nature of the Transition

      A second driving force behind the rise of forgetting in Spain was the nature of the transition, a far less studied factor and arguably a more compelling one than the traumatic past. For one thing, psychoanalytical explanations derived from the traumatic past cannot explain why, after fears about the past had vanished from the public consciousness with the consolidation of democracy by the early 1980s, both the government and the general public remained firmly wedded to forgetting. Ironically, the heady days of forgetting came not when public opinion showed Spaniards to be most fearful about the future (the earliest years of democratic transition, between Franco’s death in 1975 and the enactment of a new democratic constitution in 1978), but during the long reign of the Spanish Socialist Party during the 1980s and 1990s, when unprecedented political stability and economic prosperity prevailed.

      Several aspects of the democratic transition of great consequence to how matters about the past were handled in Spain are highlighted in this study, the first being the limitations on political justice imposed by a transition to democracy born in the very structures of the authoritarian regime. Unlike other transitions to democracy that preceded it in Southern Europe (Greece and Portugal), and subsequent ones in Latin America and the post-communist world, the authoritarian regime in Spain was not defeated or humiliated in a foreign war, toppled from