In January 2016, King Felipe VI, who had only been on the throne for a year and a half, had to apply article 99.1 of the Constitution for the first time: “After each renewal of the Congress of Deputies […], the King, after consultation with the representatives designated by the political groups with parliamentary representation, and through the President of Congress, will propose a candidate for the Presidency of the Government”. The surprise for the King, and for all of Spanish society, was that the proposed candidate, Mariano Rajoy, leader of the most voted party, the PP, declined the offer. Felipe VI had no choice but to transfer the order to the general secretary of the PSOE, Pedro Sánchez, who agreed to submit to an investiture, which failed beforehand, so that the “clock of democracy” – the period of two months from the vote for the first candidate until the Cortes is automatically dissolved if there is no president— would get going and Spain would get out of the alley of political blockade.
Felipe VI now has much more experience than then, but the situation he is facing as of August 17, when the new Parliament is set up, is no less devilish. This time the problem is not that there is no candidate for the investiture, but that there are two —the popular Alberto Núñez Feijóo and the socialist Pedro Sánchez— and the King can only choose one of them. At least one at a time.
Whatever the decision adopted, in a context of strong political polarization, it may not be understood by the followers of the party that considers itself harmed and damage the image of neutrality of the Head of State. Hence, professors of Constitutional Law and former presidents of Congress, consulted by EL PAÍS, insist on the need for the constitutional provisions to be scrupulously complied with and for the PSOE and PP to reach a prior agreement that avoids getting the King into a partisan scuffle that end up splashing the institutions. The latter, they acknowledge, is as necessary as it is difficult given the current lack of communication between the two.
“We move in an unregulated terrain, in which there are no written rules and it is convenient to walk with lead feet,” warns Professor Ana Carmona Contreras, professor of Constitutional Law at the University of Seville. What is unanimous is that there is no “right” for the candidate of the most voted party to submit to investiture, as has been repeated in the PP since the same election night. “Not at all”, emphasizes Tomás de la Quadra-Salcedo, former Minister of Justice in the governments of Felipe González and emeritus professor of Administrative Law at the Carlos III University of Madrid.
Article 99.1 of the Constitution does not give clues as to what criteria the King should base himself on to choose a candidate, but “this should not be interpreted in isolation and Spain is a parliamentary regime: the first criterion is that the applicant has the possibility of obtaining the investiture”, explains Agustín Ruiz Robledo, professor of Constitutional Law at the University of Granada. “Proposing a candidate who is defeated is a political failure,” added the former president of Congress José Bono. “If Sánchez arrives with a closed pact that gives him the majority, the King has to propose it even if he is not the most voted,” Ruiz Robledo adds.
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The round of consultations with the political parties with representation in the Chamber (not only with those that have a parliamentary group) serves the King to have first-hand information on the support that each candidate has. The problem is that several of these parties , whose votes are decisive (EH Bildu, ERC or Junts), refuse to attend the audiences with the King, which “increases the uncertainty” about the result of the vote, acknowledges De la Quadra. Bono points out that the president of Congress must help the Monarch “hear the voice of those who do not want to be heard and, nevertheless, vote.”
Ion Alcoba (Europa Press)
The role of the president of Congress does not end there; because, according to article 64 of the Constitution, he is in charge of endorsing the candidate proposed by the head of state. The proposal is embodied in a letter that La Zarzuela sends to Congress and that the president of the lower house signs. Both Bono and a former president of the PP Parliament agree that his role was practically limited to acknowledging receipt of the proposal, although in theory they could not endorse it. “The King’s decision is not discretionary, he cannot propose to whoever he pleases, but to whoever has the best chance of being invested based on parliamentary arithmetic,” underlines Ruiz Robledo.
The problem is not only that some political groups stand up to Felipe VI, but that others reserve their vote until they hear the candidate’s speech or try to negotiate until the last minute, as is common in Congress. The Constitution, underlines Carmona, does not set a deadline for the King to propose a candidate, so he could wait for someone to secure the necessary support, although this situation cannot be prolonged sine die.
In the end, if the investiture of the leader of the most voted party (Alberto Núñez Feijóo) is doomed to failure and that of the second (Pedro Sánchez) is not guaranteed success, the King will have to make a risky bet, they all agree. Who is clearer is the popular former president of Congress. “What has always been done is to nominate the person most voted for by the Spanish people,” he maintains. Professor Ruiz Robledo admits that “if no one has sufficient support [en el Congreso]according to tradition and parliamentary courtesy, the most appropriate thing would be to propose the most voted first [Núñez FeIjóo]and in the second round to the second most voted [Sánchez]”.
Carmona warns that “a certain state of opinion is being created and people expect the King to propose Feijóo, which is very dangerous, since there is a risk of instrumentalizing the figure of the head of state.” The idea that the King cannot propose Sánchez’s investiture is not only encouraged from the extreme right because he would be elected with the votes of the Catalan independentistas. the digital medium The debate, property of the Catholic Association of Propagandists, published a recent article by its opinion director, Ramón Pérez-Maura, which suggested that the King only propose the investiture of Feijóo and, after his defeat, let the two months pass without letting Sánchez appear. De la Quadra considers that approaches of this type are “completely unconstitutional” and undermine the political neutrality of the Crown.
In his opinion, “the big parties should reach a consensus to preserve the figure of the Head of State and agree not only on who is presenting [a la investidura], but also how and when, with the commitment to respect the King’s proposal”. In La Zarzuela, they do not want to anticipate events and limit themselves to pointing out that, once the new Parliament is established, “the King will respect and comply with the procedures provided for in the Constitution, as he has always done.”
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