What the King has not asked for

The result of the 1950 elections in the United Kingdom, which Labor Clement Attlee had won by a narrow margin, raised the question of whether George VI should keep him as prime minister or call the polls again. In a country accustomed to clear majorities and lacking a codified Constitution, there was no rule or custom to guide the conduct of the monarch. The solution that his secretary, Sir Alan Lascelles, came up with was to publish a brief letter in The Times under a false name, in which he set out three powerful reasons to avoid a repeat election. So Lascelles —who controlled the operation of Buckingham, as well reflected by the character who embodies him in the first seasons of The Crown series— without further ado assumed the criteria of the text that he himself had sent to the then reference newspaper in London. In this informal way, a constitutional convention had been generated to apply when considering dissolving Parliament early.

In Spanish law, so positivized and solemn, many would be shocked that the governability of the country and the predictability of the sovereign could be based on a mere unsigned letter to the editor. However, every time there are inconclusive general elections (that is, always for ten years and 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 later disagree on its content and there are various theses on the margin of discretion that the head of state —whose obligation is to propose a candidate for Congress— would have to play with calendars, try to approach political forces, or even be proactive in who should be designated. The scenario that 23-J has left raises above all the dilemma of whether Felipe VI has to opt for the leader with the most seats or, instead, for the one he seems to have the best chance of ultimately being invested. A confusing picture that could make our political climate even more difficult and erode the legitimacy of the monarchy.

In these circumstances, it being impossible for the head of the King’s House to write the guideline to follow under a pseudonym in EL PAÍS or ABC, it is possible to discern a kind of constitutional convention that already exists. A systematic analysis of the uses, generally very sensible, that have been practiced since 1978 allows us to know what will happen in the coming weeks. To the disappointment of arbitrists and lawyers, what can be expected is quite sober, without any political person in charge, let alone the Crown, being able to instrumentalize the procedure.

Once the Parliament is constituted, the King will immediately start consultations with all the political forces that have representation, following an inverse order of size. At the end of the hearings, he will designate the candidate who has the election tied up at that moment, even if he is not the leader of the main group, since that is how parliamentary democracies work. However, in the event that no one has sufficient starting support, they will have no other option than to propose whoever has the greatest number of seats, without assessing —because it is not their job to ponder perceptions that can only generate problems— if another could perhaps scratch some extra votes. Without a guarantee of investiture, what prevails is to immediately activate the clock with the first party (as happened in 1996, 2016 and 2019, despite the fact that the chances of success were uncertain) since the unlocking tool in the last instance is the repetition of elections and These can only be convened two months after the first candidacy has failed. It is so essential to avoid indefinite political interim status that, in the event that the leader of the party with the most deputies declines the offer, the cycle is repeated to propose the second (this was the case in 2016) and, where appropriate, the third or following.

Once the proposal has been made and the temporary calculation for parliamentary dissolution has begun, the King has already fulfilled his constitutional obligation and should not intervene in any negotiation, which is only the responsibility of politicians. If, during those two months, it was notorious that another applicant (or even the one previously rejected) could be invested and he shows his willingness to try, the process would be reactivated with another round so that the King designates him as a candidate. If, on the other hand, no agreement is reached, when the deadline is about to expire, a final consultation will be held to verify that it is only possible to call the Spanish people back to vote.

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 it to promote the process and it is enough to ensure that there are no deviations. That is why the King meets alone with the leaders of the parties and that is why it is the Palacio de la Zarzuela and not that of the Cortes that issues the statements on the progress. The presidency of the Chamber can then play with the times and delay the full investiture to help the candidate to close support, but that is already outside the dignified part that is the one that involves the monarch and that is carried out at an almost as ceremonial and valued as that of National Day. In this sense, the boycott of the round of royal hearings that a small group likes to practice is not much more important than the absence of certain regional presidents when celebrating October 12.

In short, the King behaves at the investiture obeying due acts and without any reserve power that allows him to prioritize a candidate, mediate or seek alternatives. There is no parliamentary monarchy that does such a thing. Some have completely separated their respective sovereigns from the investiture and where they maintain a certain role, as in the British example at the beginning, it is a priority to make it clear that it is regulated, non-partisan and only seeks to contribute to the proper functioning of the institution. There will be those who maintain that a President of the Republic, who could be more executive in the election of Prime Minister when Parliament is not capable of doing so, is more functional here. But, seen with perspective, the precedents in Italy, Greece or Portugal reveal more drawbacks than advantages.

The possible added value of the monarchy in this specific matter would then reside in the impossibility of the head of state being able to separate himself from a scheduled and predictable process. In the certainty that there will be no surprises. Only once in the last half century, the devilish Francoist regulation to designate a president still in force, the King of Spain was an activist with a justified cause and asked the president of the Cortes, Torcuato Fernández-Miranda, to manage to push forward the candidacy of Adolfo Suarez. Since there is a Constitution, he has not asked for anything. He simply cannot do it without exceeding political and moral limits in the exercise of his symbolic power. And that is why the parties cannot ask him or expect him to assume a responsibility and a risk that only corresponds to them.

Ignacio Molina A. de Cienfuegos is a professor of Political Science at the Autonomous University of Madrid.

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