Antonio Torres del Moral
Professor of Constitutional Law. UNED
The Spanish Constitution regulates the investiture of the President of the Government as one of the functions of the King in Article 62.d: “to propose the candidate for President of the Government and, as appropriate name him …”; and in Article 99, which establishes the procedure to do so.
According to the opinion of the majority, this is the only arbitral function of the King because he has a certain discretion in interpreting the results of general elections, at least when they are well balanced, at the time of proposing the ideal candidate.
This opinion, however, must be placed in context in respect of Article 1.3 which modifies the Spanish monarchy as parliamentarian and the above mentioned Article 99 which prescribes the regal consultation with the leaders of the political groups with parliamentary presence, the direction of the operation by the President of the Congress of Deputies and its conclusion in this same Chamber.
Until 20 December 2015, the Spanish general elections always generated the more or less clear victory of one party. When they concluded with an absolute majority by one political party, its leader was considered the only candidate as President of the Government and the regal consultations were nothing more than a certain formality.
And when there was only a relative majority, the practice was adopted of giving the winning party priority when negotiating the candidature of its leader. Now, if the electoral results are more or less equal and there are several solutions, the process becomes a hard bargaining situation on several levels, with very different interests and with not always compatible government programmes but it is essential to make adjustments to obtain a favourable vote in Congress.
This is quite simply what is happening here. A delicate situation, without a doubt, because the first unsuccessful investiture leads to a countdown that could lead to the calling of new elections.
But apart from the interest that the King indubitably has in a positive and advisable solution for the nation and assuming, of course, that he will not adopt a passive position of merely receiving data and impressions from the political representatives which whom he has to hold talks, what is certain is that his intervention does not entail the exercise of a power, properly speaking, since he cannot ignore the the parliamentary play of the political forces. The King (parliamentarian) reigns but does not rule, say the English, his role is to be consulted, to advise and to warn, which leads to always acting on the safe side and not making any proposal whatsoever that is not a result of a consensus of the political forces which are, in the end, those fighting to be the Government.
Even so, the current composition of Congress is so complex that it does not seem easy to form the necessary majority, let alone an absolute one in the first round of voting and even less so in the second, two days later. In political spheres, they envisage lengthy negotiations and probable new elections.
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“It is essential for the political forces to reach a deal on the presentation of a losing candidate“
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However, for this latter case, as we have anticipated, it is necessary for two months to pass from the time the King proposes a candidate and he or she is defeated. Which candidate could the King propose if, on the one side he must act with absolute certainty and, on the other, the periods of acting governments must not be prolonged?
Let us not look for the answer in the Laws. It has to be arbitrated. In my opinion, the situation reaching this stage and so that the state machinery is not paralysed, it is essential for the political forces to make a deal on the presentation of a losing candidate only to the effect of holding a merely instrumental investiture session in Congress and with the adverse result previously agreed. Yes, but which candidate?
As one might imagine, no candidate would like to play the role of the losing candidate so that it would be prudent to adopt a constitutional convention that is assigned to the acting President of the Government, whether or not he is the effective candidate of his party. This is, certainly, an exceptional solution but preferable to the institutional deadlock by not having one.
