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What has 'lawfare' got to do with Spain's amnesty and why is it controversial?

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What has 'lawfare' got to do with Spain's amnesty and why is it controversial?
The inclusion of the term 'lawfare' in the agreement has caused serious backlash from Spain's judges, with opponents essentially arguing it represents an attack on the judiciary and on the concept of the separation of powers. Photo: Ekaterina Bolovtsova/Unsplash

Spanish news anchors have been struggling to pronounce this English term that's suddenly taken centre-stage in Spanish politics. What does it mean and why is it heaping further controversy onto the Catalan amnesty deal?

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After months of political uncertainty, Spain finally seems set to have a government. But it is not without controversy.

In exchange for support (and the votes) to form a new government, caretaker Socialist (PSOE) Prime Minister Pedro Sánchez has made a deal with Catalan separatist parties, including Junts per Catalunya, led by Carles Puigdemont, that includes a legal amnesty for separatists wanted by Spanish prosecutors for their part in the failed 2017 declaration of independence.

READ ALSO: Why Sánchez's Catalan alliance is a risky bet in Spain

The deal has caused widespread outrage on the Spanish right, with thousands taking to the streets in protest across the country. Right-wing opposition leader Alberto Núñez Feijóo has described the amnesty deal as the end of democracy and said the PSOE is “betraying its history and its principles.” Far-right Vox leader Santiago Abascal has called for a 'civil resistance' and protests in Madrid have been marred by extremist elements and Nazi salutes, with violence leaving dozens of police officers injured.

But following the announcement of the PSOE-Junts deal, a further controversy centred on the alleged diluting of the separation of powers between the judiciary and executive has emerged, namely the concept of 'lawfare.'

 

What does the term 'lawfare' mean?

The inclusion of the term 'lawfare' in the agreement has caused serious backlash from Spain's judges, with opponents essentially arguing it represents an attack on the judiciary and on the concept of the separation of powers. However, the PSOE has denied that the terms inclusion in the deal means that the government is going to oversee any decisions made by judges.

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Linguistically speaking, the word comes by combining 'law' and 'warfare'. According to the Oxford English dictionary definition, lawfare includes "judicial actions undertaken as part of a campaign against a country or group."

However, La Fundación del Español Urgente (Fundeu) has pointed out that the term is also used in the military field to describe methods of warfare in which the law is used as a means to achieve military objectives. In politics, Fundeu describes it as "the use of judicial procedures for the purpose of political persecution, discrediting or destroying the public image and disqualification of a political adversary."

Lawfare is a term often used in the context of Latin American politics, most notably in in the corruption case of Cristina Fernández de Kirchner in Argentina or in 2016 with the impeachment of the then president of Brazil, Dilma Rousseff.

Moisés Ruiz, Professor of Political Communication at the European University, told Spanish online outlet Newtral.es, that lawfare essentially means "using the law as an instrument at the service of political power." 

"The term lawfare in this context means that all cases that have been convicted based on alleged judicial abuse are included in this amnesty," he added. "That is, it became political from the courts and it is implied that, to those condemned, their crime was exclusively determined by a judicial activity, which was at the service of political interests for a few years."

READ ALSO: Spain's amnesty dilemma - the 'end of democracy' or logical next step?

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The deal

So what's this got to do with Catalonian separatists?

Well, the PSOE-Junts agreement includes the term lawfare to refer to the alleged judicialisation of the Catalonian issue in the past, which will be scrutinised by the "investigative commissions" as outlined in the deal. In simple terms, the amnesty deal provides for the creation of parliamentary commissions to determine in which cases of 'lawfare' to make political persecutions against Catalan separatists.

The example many point to is the infamous "procés" case, a set of social and political events that took place from 2012 to 2022 in Catalonia with the aim of achieving self-determination and independence for the region.

Catalonian separatists have long accused the Spanish Supreme Court of having improperly judicialised a political issue and tried to find a way to prosecute them.

According to the text in the document, "In this sense, the conclusions of the inquiry commissions in the next legislature will be taken into account in the application of the amnesty law to the extent that situations included in the concept of lawfare or judicialisation of the policy could be derived, with the consequences that, where appropriate, they may give rise to actions of responsibility or legislative modifications."

For the Spanish right and critics of Sánchez, this is further evidence of his willingness to do anything to cling to power and even, for some, represents a creeping authoritarianism that threatens Spanish democracy.

IN IMAGES: Thousands of Spaniards rally against amnesty for Catalan rebels

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