The Crown and the Role of the King in Spain’s Parliamentary Monarchy

Posted on Dec 10, 2024 in Law & Jurisprudence

Item 7: The Crown

1. Parliamentary Monarchy

We are facing a constitutional body that has particular characteristics compared to other constitutional bodies, which leads to the singling out of the same within our constitutional structure.

A. The King

Our constitution provides for a hereditary monarchy that has seen no significant developments since its inception. However, certain developments are worth mentioning:

The King should be considered as an organ of the Constitution. The acquisition of the King’s condition is a subjective public right of a true nature, individualized and particularized.
Specific reference to the person of the current monarch is to be understood both ways. On the one hand, it points out that their position is derived from the Constitution, and secondly, that this is the democratic legitimacy of its existence, before the constitutional provision.
The order of succession to the throne follows the general rules of the Castilian system. The only thing to note is the pretermission, not the prohibition, of women in the order of succession.
Intervention of the courts in the sequence occurs at two different times: first, to resolve abdication, waivers, and any questions of fact or law; second, to provide for the succession to the Crown when all the lines designated by law have been extinguished.
Our Constitution contains specific rules on the possible heirs to the Crown. Thus, as regards the Crown Prince, the dignity of Prince of Asturias was constitutionalized.
Moreover, and this affects those who are entitled to the throne, they are expelled from their states when marrying against the express prohibition of the King and Parliament.
We must also refer to the situation of the Queen consort and the consort of the Queen, who are prevented from assuming constitutional functions except in the course of the Regency.
Finally, it should be noted that within the constitutional regulation, no provision is made for absences of the Monarch from the country.

All these issues highlight the need, or not, to proceed with the development of standards.

B. The Regency

This issue should be regarded broadly as a continuation of our historical precedents.

The assumptions of the regency. It covers the following assumptions: the minority and the disqualification of the King.
Requirements to be regent. The Constitution seems to require only two: to be Spanish and to be of legal age. In the assumptions commonly called the legitimate Regency, this has to be performed by one of the successors to the Crown. However, if there is no one, the General Courts appoint the Regency.

As a result of the incompatibility of the Regency, the Constitution only refers to the guardian of the King. But different questions can be asked:

Can the owner or owners of the Regency be disabled for the exercise of authority? The courts keep some control over the Regency.
In the case of a Regency appointed by the courts, can they at any time revoke all or part of their appointment? This raises the issue of control over the Regency.

3. The constitutional position of the regency. The regency has the same constitutional position as the King, though confined to the constitutionally established assumptions and time periods. The regency authentically acts as head of state, with all the powers which the Constitution of the Monarch preaches.

C. The Guardian of the King

In the case of the minority of the King, besides the need for the Regency in Article 60, a Tutor is provided for, whose office is incompatible with the Regent. The constitution provides for different tutoring classes:

Testamentary Tutoring: Namely, that which the deceased King had named in his will as guardian of the minor King.
Legitimate Tutoring: That is, in default of probate, the parent of the deceased King.
Parliamentary Tutoring: Appointed by the General Courts from among any Spaniard of legal age by birth, not occupying any office or representation.

3. The Endorsement

Regulated by Art 56.3 of the Constitution. The endorsement is a legal device by which the Crown Holder validly makes their actions only when they are signed or consented to by the person also predetermined by the Constitution, that by that act assumes full responsibility for the act itself, are exempt from this obligation to endorse the appointment and replacement of any civilian and military members of her household (Art. 65.2 of the Constitution, except as established in Article 56.3, final sentence).

56.3 .- The King’s person is inviolable and not subject to liability. His acts shall always be countersigned in the manner prescribed in Article 64, lack validity without such endorsement, except as provided in Article 65.2. 65.2 .- King freely appoints and dismisses civil and military members of his house. 64 .- King’s acts shall be countersigned by the Prime Minister and, where appropriate by relevant ministers. The nomination and appointment of the prime minister, and the dissolution provided for in Article 99, shall be countersigned by the president of the congress. The endorsement is a typical institution of the parliamentary system by which you authenticate the act of a third party and assume the responsibility that this would have corresponded.

a) The nature of the endorsement: Typically a firm that puts together the legitimate holder of the monarch. But the endorsement today has other modalities. At first, it was thought to be an agreement of wills. But nowadays usually comes to teaching the theory of complex act in which two wills concur but in an unequal position: the willingness of the person providing the endorsement is crucial to the will of the other. This institution is characterized by the following notes: The King’s acts must always be endorsed. The absence of endorsement implies the invalidity of the act. The endorsement must be made as provided in Article 64. The refrendante authority takes responsibility for the act of the King.

B) Persons authorized to endorse: Typically members of the Government. The general assumption conceives of the Prime Minister as the holder entitled to endorse the act of the King.

C) Acts exempted from endorsement: These are being reduced as there is the historical development of monarchies so that in a parliamentary monarchy, all the king’s acts are subject to endorsement. Our Constitution expressly refers only to a free act of endorsement, which is the appointment and replacement of military and civilian members of the royal household, which is a total act of disposal of the monarch.

d) The impact of the endorsement: It is noted that the main effect of the endorsement is a shifting of responsibility for the act of the King to the holder entitled to that service. An act without the endorsement is an act void, it can be considered null and void. The endorsement would mean the return to the top of irresponsibility of the King.

4. The Functions of the King

The King of Spain is the Head of State of Spain, a symbol of its unity and permanence, which is required to arbitrate and moderate the regular functioning of the institutions and represent the nation in addition to the functions expressly assigned to the Constitution and Laws. He is also Captain of the Army and has the High Patronage of the Royal Academies. The Spanish Constitution is the institution of the Crown, the person of the King and his duties in Title II, comprising Articles 56 to 65. Today the King of Spain is Juan Carlos I of Bourbon. The King (or Queen) of Spain to carry out their task of symbolizing and representing the state and arbitration and moderation of the regular functioning of the institutions, plays a number of functions that are in varying degrees listed and rated by the Constitution. Specifically, the following functions can be enumerated as the most representative and important for many is the title of the Crown:

Sanction and promulgate the laws. Royal Assent, given by the King within fifteen days, has a role in certifying that the law gives its completion, despite having been already approved by the Cortes Generales; in the promulgation, together with the publication also the King (or Queen) is ordered, puts the alleged acts to the attention of all individuals and authorities, and that fact alone are vested with general binding force (principle Advertising constitutional norms).
Convene and dissolve the Parliament and call elections as provided in the Constitution. A proposal by the Prime Minister, the Crown Holder is entitled to an early halt to the mandate of Senators and Representatives, both Houses or either one of them, issuing a royal decree of dissolution, which also must specify the election date, also the King (or Queen) is convening is for this reason or the natural expiration of the mandate of the Houses.
Convene a referendum as provided in the Constitution. The King (or Queen) has exclusive rights to appeal to the people and make available to the Nation for any project or issue to him the Prime Minister proposed the authorization of the Congress of Deputies, or a requirement of its own Constitutional reform.
Propose to the House of Representatives a candidate for the Prime Minister, appoint and dismiss him, as provided in the Constitution. After each renewal of the Congress of Deputies and in cases where it refuses to ratify his confidence in the Government, the Crown Holder consults with leaders of political groups represented in parliament and proposed to the Congress of Deputies, a candidate for the Presidency Government, and appointed him if Congress gives it confidence or otherwise proposes another. Also named as Prime Minister the candidate whose name is on a censure motion passed by the Congress of Deputies against the Government.
Appoint and dismiss other cabinet members, a proposal by the President.
Issue the decrees approved by the Council of Ministers, presided at the request of the Prime Minister when deemed appropriate, in order to be informed of the affairs of state, to confer civil and military honors granted under the Laws.
The right of pardon. The King (or Queen) is entitled, on the proposal of the Government, to remit in whole or in part any convictions handed down by the Courts of Justice in criminal and / or military is either conditionally or unconditionally. In any case, it must be according to the law and may not grant general pardons.
The King reserves the granting of titles of nobility and grandeur of Spain.
The High Patronage of the Royal Academies.
Accredits ambassadors and other diplomatic representatives of the Kingdom, and before him (or her) will accredit ambassadors and foreign diplomats.
Express consent of the State to honor its international treaty.
Declare war and make peace, after authorization by the Cortes Generales.