Democracy Without Justice in Spain. Omar G. Encarnacion

failure or external pressure. Instead, Spain’s authoritarian regime was gradually transformed into a democracy from the inside out by reformers operating within the authoritarian government, including, ironically enough, Franco’s hand-picked successor, King Juan Carlos, and relying on the authoritarian regime’s own legal and political institutions, many of which survived the transition to democracy virtually intact (see Carr and Fusi 1981; Maravall 1981; Malefakis 1982; Gunther 1992).

      The ramifications of the democratic self-reformation of the authoritarian regime for the disposition of the past after Franco’s passing were significant. Implicit in the left’s acceptance of a democratic transition orchestrated by the authoritarian regime and assisted by existing legal and political frameworks was willingness to forgo retribution against the old regime. This exchange of “amnesty for democracy” was introduced with the 1976 Law of Political Reform, enacted by the Francoist parliament (without representation from the opposition), which simultaneously ended the authoritarian regime and put the country on the path toward democracy by legalizing political parties and independent trade unions and scheduling free elections, Spain’s first in four decades. Predictably, the law had nothing to say on the issue of political justice against the old regime. Amnesty for the old regime was institutionalized with a law by the new democratic parliament in 1977. The timing of this law in Spain is significant because, unlike other cases, it meant that amnesty was enacted not by the outgoing authoritarian regime but by its democratic successor.

      A second focus of our analysis is the ethos of political consensus that permeated the transition to democracy and that accounts for Spain’s reputation as the paradigmatic example of a “pacted,” “brokered,” and “negotiated” transition (Share 1986; Linz and Stepan 1996; Gunther 2007; Encarnación 2008a). Numerous factors underscored elite consensus during the transition, starting with the urgent need for intra-elite collaboration in order to confront all the intractable problems that over the course of centuries had made democracy an uphill struggle—from finding a constitutional role for the monarchy, to meeting the Catholic Church’s demands for some kind of public function in the polity, to accommodating demands for self-governance from nationalist-separatist regions. The latter was especially taxing; after all, granting limited autonomy to the Basques and Catalans was a leading cause behind Franco’s uprising against the Second Republic in 1936, by projecting the sense that Spain was coming apart at the seams. Regional autonomy was even more explosive an issue during and after the democratic transition since Franco’s repression of Spanish ethnic minorities had engendered a separatist, terrorist movement in the Basque Country anchored around ETA that was determined to engage the state in a prolonged armed conflict with the goal of establishing an independent Basque state.

      But the main inducement for consensus may well have been the desire of the political class to make the democratic transition an unambiguous marker between “old” and “new” Spain, with the old representing anything associated with pre-transition Spain and the new focused on democracy and Europe. This desire for remaking Spanish political identity was most intense within the left, which explains why the politics of forgetting flourished not during the transition during the late 1970s (when Spain was ruled by a center-right government led by former Francoist leaders who had every reason to fear any process of transitional justice), but rather under socialist rule during the 1980s and 1990s. During those years, the socialist administration endeavored to reimagine Spain as a modern, forward-looking European nation. The pact to forget aided this dual project of modernization and Europeanization by obscuring the things that for decades had set Spain apart from the rest of Europe, especially the Civil War and the Franco dictatorship, and by encouraging a forward-looking culture that did not appreciate remembrances of the past, especially things in Spanish history—like the Civil War and the Franco dictatorship—that stood in the way of Spaniards’ perception of themselves as Europeans.

       The Organization of the Study

      The rest of this book is organized as follows. Chapter 1 provides an overview of the Pact of Forgetting that stresses what the pact stood for, how it was made to operate, and what historical events it sought to obscure from the public memory. Chapter 2 revisits the years of democratic transition (1975–1981) for the purpose of illustrating how the transition to democracy conditioned the rise of the Pact of Forgetting by limiting the capacity of the democratic opposition to make justice demands against the old regime and by enhancing the ethos of consensus born with the transition. Chapter 3 examines the endurance of the Pact of Forgetting under the socialist administration of Prime Minister Felipe González (1982–1996), which implemented the policy of desmemoria (disremembering) to modernize political institutions and reinvent national identity.

      Chapter 4 looks at the puzzling absence of civil society opposition to the rise of the Pact of Forgetting throughout the transition and consolidation of the new democratic regime, a discussion that emphasizes both societal complicity with the political class and the legacy of the transition. Chapter 5 explores the birth of the movement for the recuperation of the historical memory, an unintended consequence of General Pinochet’s arrest in London in 1998 on orders from Spain. Chapter 6 discusses the enactment of the 2007 Law of Historical Memory, a dramatic reversal of a three-decade-old commitment to forgetting the past led by a new generation of left-wing leaders not politically socialized in the struggle against Francoism and not beholden to the political compromises of the democratic transition.

      Chapter 7 mines the Spanish experience with coping with the past, together with comparative evidence from other democratizing states in Latin America and post-communist Europe, for lessons about scholarly debates on transitional justice and democratization. Much of the discussion emphasizes the need to adopt a more nuanced and pragmatic understanding about justice in times of transition. For all its virtues, and there are many, transitional justice is not the panacea for democratization many of its advocates make it to be—in some cases alternative approaches or a mixture of approaches might in the end yield better results. Transitions to democracy come in many forms, some more compatible with transitional justice than others, and they leave in their wake different configurations in the balance of power of the new regime and divergent stocks of residual authoritarian power profoundly affecting what is possible with respect to the political excesses of the old regime; to say nothing of the fact that public attitudes about an anguished past can vary dramatically from country to country.

      CHAPTER 1

      History, Politics, and Forgetting in Spain

      Spain’s Pact of Forgetting conforms to the definition of a “political pact” offered by the democratization literature as “an explicit, but not always explicated or justified, agreement among a select set of actors which seeks to define (or better redefine) rules governing the exercise of power on the basis of mutual guarantees for the vital interest of those entering into it” (O’Donnell and Schmitter 1986: 37). As such, political pacts bring together a small number of elite actors for the purpose of settling issues that bring them into conflict with one another. Traditionally, the making of political pacts in the context of democratization has been done behind closed doors, with nary an opportunity for the general public to weigh in on the decisions being negotiated on their behalf by the political elite (see Encarnación 2005). This unappealing aspect of political pact-making can lead to important decisions about the emerging democratic regime being made before a single free vote has been cast. Not surprisingly, political pacts have been linked to a host of negative and unintended consequences for democratization, from marginalizing civil society groups, such as the labor movement (Karl 1987), to allowing for the transfer of authoritarian vices into the new democratic regime (Hagopian 1992), to promoting corporatist, exclusionary and even undemocratic