Where the Spanish King Cannot Intervene

Ignacio Molina

8 mins - 16 de Agosto de 2023, 16:30

The result of the UK elections in 1950, which had been narrowly won by Clement Attlee of the Labour Party, raised the question of whether George VI should keep him as prime minister or call a new round of elections. In a country accustomed to clear majorities and lacking a codified constitution, there existed no rule or custom to guide the monarch’s conduct in determining the path forward. The solution his secretary, Sir Alan Lascelles, proposed with was to publish under a pen name a brief letter in ‘The Times’, setting out three powerful reasons for avoiding a repeat of the close election. Thus, Lascelles – who controlled the workings of Buckingham, as the character who plays him in the early seasons of The Crown series clearly reflects – simply assumed the criteria of the text he himself had sent to London’s then leading newspaper. In this informal way, a constitutional convention had been generated to be applied when Parliament was to be dissolved early than anticipated.

In Spanish law, so formal and solemn, many would be shocked that the governability of the country and the predictability of the sovereign could be based on a mere letter to the editor without official signature. However, each time there is an inconclusive general election (i.e. every time for the last ten years, now five in a row) we return to the recurring debate on how to interpret the lengthy Article 99 that regulates the investiture of the president of the government. Those who have studied this precept agree on its technical imperfection but then disagree on its content, and there are varied theses on the margin of discretion that the head of state – whose obligation is to propose a candidate to Congress – would have to play with the timetables, try to bring the political forces closer together, or even be proactive regarding whom should be appointed. The scenario left by outcome of the Spanish General Elections of 23 July poses the dilemma of whether King Felipe VI should opt for the leader with the majority of seats or, rather, for the one who may have a greater feasibility in being invested – a confusing panorama that could further obfuscate our political climate and challenge the authority of the monarchy.

[Recibe los análisis de más actualidad en tu correo electrónico o en tu teléfono a través de nuestro canal de Telegram]

In these circumstances, while it is impossible for the head of the King’s Household to write under a pseudonym in Spanish newspapers such as ‘El País’ or ‘ABC’ the guidelines to be followed, it is possible to discern a kind of constitutional convention that already exists. A systematic analysis of the generally very sensible practices that have been followed since 1978 makes it possible to know what will happen in the coming weeks. To the disappointment of arbitrators and lawyers, what can be expected is fairly mundane, with no political leader, let alone the Crown itself, being able to instrumentalise this procedure.

Once the Cortes are convened, the King will immediately begin consultations with all the political forces that are represented, following an inverse order of size. Following the conclusion of the audiences, he will nominate the candidate who is currently the most likely to be elected, even if he may not the leader of the primary group, as this is how parliamentary democracies work. However, in the event that no one has sufficient support at the outset, the King will have no choice but to nominate whoever has the largest number of seats, without evaluating whether someone else might perhaps be able to scrape together a few additional votes, since it is not for him to entertain considerations which may only cause problems. Without a guarantee of investiture, the priority is to start the clock immediately with the first party (as occurred in 1996, 2016 and 2019, despite the fact that the chances of success were uncertain), as the tool of last resort for unblocking the situation is a repeat election, and these can only be called two months after the first candidacy has failed. Thus, it is fundamental to avoid an indefinite political interim that, in the event that the leader of the party with the most MPs declines the offer, the cycle is repeated to propose the second (as was the case in 2016) and, if necessary, the third, or subsequent candidates would be brought forward.

Once the proposal has been made and the time for parliamentary dissolution has begun, the King has already fulfilled his constitutional obligation and should not intervene in any negotiations, which are the sole responsibility of politicians and parties themselves. If during those two months it becomes clear that another candidate (or even the one previously rejected) could be invested and he or she shows willingness to try, the process would restart once again with another round for the King to designate him or her as a candidate. If, on the other hand, no agreement were to be reached, just prior to the end of the deadline, a final consultation would be held to confirm that the remaining option is to call upon Spaniards to vote again.

Everything is done with the endorsement of the presidency of Congress but, precisely because the steps to be taken are so clear, it is not necessary for the King himself to drive the process – it is enough for him to monitor that there are no deviations or irregularities. That is why the King meets alone with party leaders and why it is Zarzuela Palace and not the Palace of the Cortes that issues communiqués on any progress. The presidency of the Cámara can then play with the timing and delay the investiture session to aid the candidate to win support, but that is outside the dignified part, which involves the monarch and is carried out at a pace that is almost as ceremonial and measured as that of the celebrations of Spain’s Día Nacional. In that sense, the boycott of the round of royal audiences that some small group likes to practice is no more important than the absences of certain regional presidents when celebrating the 12 October. 

In short, the King behaves in the investiture by obeying due acts and without any power of reserve that would allow him to prioritise a candidate, to mediate, or to seek alternatives. No parliamentary monarchy does this. Some have removed their respective sovereigns from the investiture altogether, and where they retain some role, as in the case of the British monarchy mentioned at the beginning, it is a priority to make clear that the monarchy is regulated, non-partisan, and only intended to contribute to the proper functioning of the institution. Some might argue that a President of the Republic, who could be more executive in the choice of prime minister when Parliament is unable to do so, is more functional here. But, with hindsight, the precedents set in Italy, Greece, and Portugal suggest more disadvantages than advantages.

The possible added value of the monarchy on this particular issue would then lie in the impossibility of the head of state to deviate from a scheduled, predictable process – in the certainty that there will be no surprises. Only once in the last half-century, while devilish rules of Francisco Franco’s regime for appointing a president still applied, has the King of Spain been an activist with a justified cause and asked the president of the Cortes, Torcuato Fernández-Miranda, to carry on with Adolfo Suárez’s candidacy. Since the enactment of the Constitution, the monarchy has asked for nothing. It simply cannot do so without exceeding political and moral limits in the exercise of its symbolic power, nor can the parties ask the King or expect him to assume a responsibility and a risk that is only theirs alone.
Se puede leer el artículo original en español publicado en El País

¿Qué te ha parecido el artículo?