The jackets of Public Law textbooks generally feature buildings, flags, maps or even abstract art, and the images tend to be serious, official and impersonal, perhaps even sterile. It is very rare for there to be much of a hint that the contents inside are bound up with human drama and our shared stories. At one level this is unsurprising, as in the liberal democratic, twenty-first century west, we are inclined to think of the State and its workings as a neutral space; a means of allowing countless individual perspectives to flourish, whilst retaining an impartial stance towards them all. Yet in reality, this understanding is at best only one layer of the full picture, and at worst a delusional interpretation. In truth, our law, and our Constitutions, embody a set of collective values, and it is not possible to make rules or decisions without reference to prevailing norms and ideals. Although confronting this can be uncomfortable at times, it is also necessary. Whilst the drama of Brexit has been playing out in the UK, the Spanish legal and political system has been faced with a sharp dilemma about the messages embodied and embraced by a national monument, and therefore, by the State itself.
Around fifty kilometres from Madrid, stands the Valle de los Caídos, or Valley of the Fallen, a majestic and haunting memorial to those who lost their lives in the Spanish Civil War, constructed during General Francisco Franco’s dictatorship (1939-1975). It is a place of burial as well as commemoration, containing both republican and nationalist graves, and was claimed by Franco to have been a site for national atonement and reconciliation. Nevertheless, given that it was a product of his regime, it is indelibly associated with the long years of his rule. When Franco died in November 1975, it was chosen by the Interim Government as the location where he would be buried, and since that time, the decision has come to be regarded as increasingly out of step with the ideals of contemporary Spain. In June 2018, Prime Minister Pedro Sánchez announced that the Dictator’s remains would be exhumed and reinterred in the municipal El Pardo cemetery. This stance provoked a mixed reaction, and set in motion a chain of legal challenges, culminating in a ruling this week from the Spanish Supreme Court.
The judges unanimously found that the proposed exhumation would not infringe any laws relating to planning or the disposal of human bodies, and that the Royal Decree passed to enable the action was not unlawful. They also supported the stance of Pedro Sánchez’ Government in rejecting requests from the family of the Dictator to have his body placed in the crypt of Almudena Cathedral, in light of the security and political implications of such a move. Franco’s relatives might still claim a violation of their fundamental rights, and make an appeal to the Spanish Constitutional Court; whilst this would inevitably generate further delays, it seems highly likely that the same legal conclusion would ultimately be reached.
It is challenging for an international audience to appreciate the complexity and sensitivity of these proceedings. The atrocities of the Civil War (1936-1939) and its aftermath traumatised the country for generations, and the subject remains immensely painful. It should also be remembered that the overwhelming majority of Spaniards, from across the mainstream political spectrum, are justly proud that the country ultimately walked peacefully from the darkness of the past into the light of a democratic future. Those who had worked closely with Franco and politicians from the left managed to construct a constitutional settlement in harmony with the values of the wider European family, as well as the wishes of ordinary Spaniards in the street. Significantly, part of the price for this was an acceptance that a veil would be drawn over past horrors, and that society would engage in the pretence of collective forgetfulness.
However, four decades on, the needs of Spanish society have changed, the pressure to recognise the wrongs perpetrated by Franco’s regime are growing, and there is a gathering feeling that acts of murder and terror committed by the State cannot simply be swept under the carpet. Whilst in some quarters there is anger about re-opening old wounds, and these are very legitimate concerns, the view of the elected Government is that fiction of amnesia is no longer in the best interests of Spain. The country does remember, and only by re-dressing and cleaning the wound, can true healing come about.
It is undeniable that violent acts were committed on both sides of the Civil War, and the torture and slaughter of priests, nuns and other innocent parties perpetrated by some of those fighting under the Republican banner can only be described as vile. Even allowing for this though, the legitimately elected Republican Government never condoned such behaviour, and in contrast, the military forces which were eventually successful in overthrowing it, orchestrated and used similar tactics against its opponents as a means of gaining and keeping power. There are still Spanish men and women buried in unmarked graves, simply for having opposed the Fascist forces, and in light of this, allowing Franco an honoured tomb where the fallen on both sides sleep in peace is at odds with the shared narrative of Spain.
It is a great testament that a country which in the relatively recent past lived under the dictatorship, albeit one which evolved and changed with the passing years, negotiated its transformation to a democratic way of being, without violence or outside intervention. Furthermore, it reached a point in its journey where its democratic organs were sufficiently robust to enable this collective conversation and decision about the Valle de los Caídos to be undertaken. The choice has not been straightforward, and we fully understand why some people would feel that the risk of reawakening old divisions is too great, as there is a danger of the policy backfiring and fuelling rather than quelling Far Right propaganda. Equally, other citizens might consider that digging up any human body from the recent past should be avoided in the interests of decency. All of those positions, and more, had a right to be heard, and have been given space to be aired.
Even though the acknowledgment of these dissenting views was crucial in our democratic journey, the decisions of elected politicians and the judgment of an impartial Court have been made, and we must now move on. The ruling of the Supreme Court is not about left versus right (clearly the overwhelming majority of Spaniards take pride in our democratic credentials), it is about the strength of the commitment to justice, fundamental rights and the rule of law. Unquestionably, Constitutional Law is not merely a way in which we tell our shared story, it is one of the most potent means by which we write it.
Related Articles
Supreme Court orders immediate exhumation of Francisco Franco (El Pais English 30/9/19)
El Tribunal Supremo da vía libre para exhumar a Franco: no es necesaria la licencia de obras (ABC 30/9/19)
Pedro Sánchez activa la exhumación de Franco de forma exprés en plena campaña (El Mundo 25/9/19)
Spanish Civil War (3/4/2003 Radio 4 In Our Time)
