Article 99 of the Constitution, a hornet for Don Felipe in the formation of Government
"The King should not be on the front page of newspapers every day." This is said by Professor Emeritus of Constitutional Law Antonio Torres del Moral when asked
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"The King should not be on the front page of newspapers every day." This is said by Professor Emeritus of Constitutional Law Antonio Torres del Moral when asked about the role of the Monarch in the formation of the Government. The failed investiture of Pedro Sánchez and the political paralysis that could lead us to repeat elections in November have once again focused on the head of state for his duties in this process.
Don Felipe already had an important role in 2016 when unprecedented events occurred since the recovery of democracy, such as the rejection of Mariano Rajoy at the request of the Monarch to try to forge an Executive. That operation, as well as the subsequent offer to Pedro Sánchez - maneuver destined for failure but which allowed him to start the famous clock for the dissolution of the Cortes - were unpublished exploration routes for the Crown with which Torres del Moral is shown Critic: "They went out regularly, at most."
The constitutionalists, historians and political analysts consulted by THE WORLD mostly agree on two issues. The first, that Don Felipe is acting with correction in his prudence since 28-A, because the most important thing is that the neutrality of the high magistracy that he embodies is not affected. And the second, that article 99 of the Constitution , from which the royal functions emanate in the political process of government formation, is poorly worded. In situations of such fragmentation, it can be a hornet's nest for the Monarchy.
The dissent revolves on how the King's performance should be at this time. In front of those who consider the low profile adopted by Don Felipe since the failed investiture of July to be a success, moving away to a discreet background in August to allow time for the parties to negotiate, other experts believe that the Monarch should not hurry too much time to to promote new consultations with political leaders, in compliance with the aforementioned article 99. It is the dilemma facing the King, even though he does not have to be the muñidor of agreements between parties or can make movements that call into question his role of moderator and arbitrator of the exquisitely neutral institutions.
There is dissent as to whether the King should convene another round of politicians
In full transition , the adoption of the parliamentary monarchy as a form of government was the subject of few discussions. However, it was much debated what the functions of the King should be. It is known that the left tried to have the Magna Carta reduce it to a ceremonial figure in the style of monarchies such as the Swedish or the Japanese; meanwhile, the representatives of the right-wing center wished to provide it with attributes of much greater dimension, in line with the Benelux monarchs.
When the first constitutional draft was made public at the end of 1977, Juan Carlos I himself lamented that "as things are developing, I will have fewer powers than the King of Sweden." Julián Marías published: "There will be a monarchy, but it won't be worth it."
The truth is that the King was left as the only one of the European monarchs, with the exception of the Swedish, without any intervention in the formation of the Government. In Zarzuela there was discomfort. In the end, after studying different models, including the British, it was decided that the King had a role in the process of government formation inspired by the Belgian and Dutch models. But article 99 suffered different formulations until the final one. For example, it happened that the Monarch had to consult "the presidents of both Houses [Congress and Senate] and the spokesmen appointed by the parliamentary groups", to which the King must dispatch with "the representatives appointed by the political groups with parliamentary representation »before proposing candidate.
The fathers of the Constitution granted the Monarch one of his few roles in a matter of a political nature thinking of the throne of Brussels , but did not endow him with any of the legal instruments that the King of the Belgians has for the formation of Governments , always complicated process in that country: endless institutionalized figures -informators, explorers, government trainers ...-, in addition to the prerogative to manage political times, including the power to accept or not the resignations of prime ministers or to dissolve the Chambers.
Nothing similar exists in Spain. The role of the King is very constrained. The constituents thought that their function was going to be little more than protocol, as has happened during almost four decades of bipartisanship, in which Don Juan Carlos had no problems in this area.
Roberto L. Blanco Valdés , Professor of Constitutional Law at the University of Santiago de Compostela , believes that in our country it would not be accepted nor would it be good if the King played such a leading role as his Belgian counterpart. «The good to preserve is that it does not appear before public opinion as a supporter. Don Juan Carlos could limit himself to giving legal form to the decision of the electoral body, because even in the last investiture of González and the first one of Aznar it was clear who could be president. Now everything is complicated. But the King does not have to make decisions. In this case, it is up to Sánchez, the only one with the possibility of being invested ».
Blanco emphasizes that the King has "a minimum margin of discretion," but cannot be placed in a compromised political situation. He believes that another round of matches is not appropriate until asked by the only candidate with possibilities, Pedro Sánchez. The constitutionalist emphasizes that the head of state has been acting in two different ways since June. First, he asked the socialist leader to submit to the investiture despite the fact that no political leader, except the deputy of the Revilla party, assured him of the support. But with the designation, as Blanco deduces at the request of Sanchez himself, the Monarch urged him to negotiate to seek support. Now, instead, the professor explains, presumably also at the direction of the acting president, Don Felipe gives him the necessary time to try a negotiation again before another round at the Palace. Blanco points out that the two routes of royal action are perfectly valid. But other colleagues, such as Torres del Moral, believe instead that the head of state should never propose a candidate without minimal support. We already said that 99 leaves interpretations for all tastes.
Experts believe that the King should not wear out with failed candidates
In any case, experts warn that if the parties do not act responsibly, the King is splashed, because there will always be sectors that question their way of working. Thus, for example, Pablo Iglesias expressed his dissatisfaction with the offer to Sánchez on June 6 to form a government, since the leader of Podemos had just informed him that they were not willing to support the PSOE, who had not spoken for 15 days and that the acting president had refused to negotiate since 28-A.
The gaps, editorial errors and multiple interpretations of article 99 complicate everything. Torres del Moral underlines the defective formulation of point 4: «If the aforementioned votes have not been granted, the trust for the investiture is not granted, successive proposals shall be processed as provided in the previous sections». The constitutionalist says that after the comma a "in his case" would be missing. As it is written, in an imperative sense, it seems to force the King to hasten to summon new rounds and propose new candidates while the two months have elapsed until the dissolution of the Cortes. Torres del Moral says that it is nonsense because he thinks it is not sensible for Don Felipe to propose to anyone else without a viable investiture. “That would be interpreted as commissions and, if they fail, they mean wear to the Crown. The King cannot wear out with failed candidates. He must play for sure ».
But constitutionalists warn of other gaps in article 99. For example, the King's round with political groups is an essential requirement designed for the Monarch to have all the necessary information, something especially delicate if two have similar possibilities. And, nevertheless, we could find ourselves facing a serious crisis if many forces, as Bildu or some Catalan independentistas already do, decide not to attend the call of Zarzuela. On the other hand, nothing says Article 99 of when the King should begin consultations. I could start them if I wanted the day after the elections, without waiting for the constitution of the Cortes, 26 days later, as it has been doing since 1978 by an unregulated custom. Because the Monarch has to meet with representatives of political groups, not parliamentary groups. This would speed up everything.
Meritxell Batet has to assume more protagonsimoAntonio Torres del Moral
Nor is there anything regulated about how many rounds to make before proposing a candidate. There is no shortage of analysts who see precipitation in actions such as asking Rajoy in his day to get in the ring against his will. Likewise, Don Felipe can take the time he wants after the consultations before any announcement. And yet, Zarzuela is used to making his announcements with the urgency that today marks the informative agenda.
«Don Felipe is acting correctly, not leaving a millimeter of the constitutional text. The problem is the use and abuse that some parties and some leaders are making the room for maneuver that the laws grant them. We must ask for less tacticism, less short-termism and more institutional loyalty to the political class. And, especially in this case, Pedro Sánchez and Pablo Iglesias, ”says historian Jordi Canal , who refuses to call on the Monarch to play a more active role in trying to unclog things.
In this sense, Torres del Moral emphasizes what he considers an anomaly that has been maintained for 40 years: the second role of the president of the Congress when he emphasizes, Article 99 actually gives him maximum responsibility, since it is he who endorses the acts of the King. To avoid burning the Crown and questioning its neutrality, Torres del Moral believes that Meritxell Batet is the one who should now promote the rounds of contact between parties. And it goes further. He believes that he should be present at the consultations with politicians in Zarzuela. «The president of Congress cannot limit himself to being an errand boy carrying a piece of paper to the King. Has no sense".
For the moment, Felipe VI is still obliged to exercise caution until he knows if the Government can be formed. September 23, deadline.
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