Javier Cremades
Founding partner of Cremades & Calvo-Sotelo
At the present time it is urgent to clarify what the role of the King should be in the nomination of a candidate for the Presidency of the Government. In a quick attempt to tackle this problem, I believe that a distinction should be made between the political treatment of the issue and the strictly legal-constitutional one. In this personal reflection, I will limit myself to the legal-constitutional study, without prejudice to concluding with some consideration, or rather a reference to the political level.
From the legal-constitutional point of view, there are three precepts to consider: Article 56.1, the true keystone of the King’s role, Article 62(d) and Article 99.1. If I have described Article 56.1 as the keystone, it is because it summarises the role of the King in the constitutional system, and it is from this starting point that the constitutional correctness of the exercise of his powers must be analysed.
The article states that “The King is the head of the State, symbol of its unity and permanence, he arbitrates and moderates the regular functioning of the institutions…”. From this initial consideration, I believe that an exercise of the constitutional competence established in the other two precepts cannot be dissociated from the possible repercussions on the “regular functioning of the institutions”, and specifically on the “regular functioning of the institutions”, and specifically on the institutions of the State. and specifically in that of the Cortes Generales.
Turning to att.62.d), it should be noted that the power to “Propose the candidate for President of the Government…” is not conditioned by any quantitative or qualitative criteria; not even parliamentary status is required, so there is no constitutional impossibility for the King to propose a technician who is not one of the leaders of the parties contesting the elections. This formula has not been tried so far in our democracy, and if it is pointed out as possible, it should not be taken, far from it, as a suggestion of its use at this time, but simply as a means of legal interpretation of a precept of our Constitution and as evidence that the King is not constrained by any minimally discernible constitutional limit.
In the media and in opinion forums, it has been insisted that the King, in order to make his proposal, must take into account the support that the proposed politician can count on in Congress. The King’s position in this respect is thus reduced to a merely pragmatic and quantitative criterion, with no discernible basis in Article 62 d) or in Article 99.1, leaving no conceptual margin for the King, in the exercise of his constitutional power, to take into account and use qualitative criteria of another kind in the exercise of his role as guarantor of the regular functioning of the institutions.
This disqualifies from the outset the possibility that the King may not attend to possible support from parliamentarians whose public profile does not guarantee their commitment to the demands of the Constitution, taking for granted that the King’s possible use of these hypothetical qualitative criteria implies his involvement in a political activity that must be understood to be forbidden to him. In any case, and limiting ourselves to the sphere of what I have described as exclusive quantitative criteria, in order for their correct use to be acceptable, it would logically seem to be required that when the King exercises the constitutional duty imposed by Article 99 EC of “prior consultation with the representatives designated by the political groups with parliamentary representation”, the viability of that consultation should fulfil a double condition: first, that those groups designate the representative who is to attend the King’s meeting; and second, that the designated representative attends the King’s meeting. If the King’s call is not heeded by the person whose duty it is to do so, can it be considered “regular functioning of the institutions” for the King to decide on his proposal without having direct knowledge of the intention of some parliamentarians who have not met with him, informing him of their intention? Does this not trivialise the role of the King in proposing the candidate for President of the Government who is allowed to use qualitative criteria that he deems appropriate from his constitutional position?
At the beginning of these reflections he referred to a political approach which he was not going to go into, although he will make some observations on the matter: there is no doubt that the King’s decisions in the matter in hand have a political significance of the highest order, and there is no doubt that the King, in the responsible exercise of his role, will assess the possible political consequences; but it is not constitutionally acceptable that the King’s failure to take into account in his proposal possible votes from those who have not expressed their views to him can be described as an invasion of the political sphere.
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