The Spanish Crown: Functions, Succession, and Regency

Posted on Sep 7, 2024 in Law & Jurisprudence

The Crown: Its Regulation in the Spanish Constitution

1. Functions of the Crown

The Spanish Constitution of 1978, specifically Title II, Articles 56 to 65, outlines the regulations surrounding the Crown. Article 56 highlights the key roles of the Monarch:

  1. Head of State: The King symbolizes Spain’s unity and permanence.
  2. Arbitrator and Moderator: The King ensures the smooth functioning of state institutions.
  3. Highest Representative: The King represents Spain in international relations, particularly with nations sharing historical ties.
  4. Constitutional Authority: The King executes duties as defined by the Constitution and laws.

The King’s official title is “King of Spain,” with the option to use other titles associated with the Crown.

1.1. Special Functions

Article 62, along with other scattered articles within the Constitution, details the specific functions of the Crown:

  • Sanctioning and promulgating laws.
  • Convening and dissolving Parliament, and calling for elections as per the Constitution.
  • Calling for general elections.
  • Holding referendums as stipulated by the Constitution.
  • Proposing candidates for Prime Minister, and appointing or dismissing them based on constitutional provisions.
  • Appointing and dismissing members of the Government, based on the Prime Minister’s proposal.
  • Issuing decrees approved by the Council of Ministers.
  • Conferring civil and military honors as per the law.
  • Staying informed about state affairs and presiding over Council of Ministers meetings when deemed necessary or upon the Prime Minister’s request.
  • Exercising supreme command of the Armed Forces.
  • Exercising the right to pardon, excluding general pardons, as per the law.
  • Acting as the High Patron of the Royal Academies.
  • Appointing the President and members of the Constitutional Court, the Attorney General, and members of the Supreme Judicial Council.
  • Appointing Presidents of the Autonomous Communities, with the Prime Minister’s countersignature.
  • Penalizing the Statute of Autonomy.
  • Calling for referendums on autonomy.

1.2. International Service

Article 63 outlines the Monarch’s international roles:

  • Accrediting ambassadors and diplomats, and receiving foreign representatives to Spain.
  • Expressing consent to international commitments through treaties, in accordance with the Constitution and laws.
  • Declaring war and making peace, following authorization from the Cortes Generales.

2. Succession

The Spanish Crown is hereditary, passing down to the successors of H.M. Juan Carlos I de Borbón, the legitimate heir of the historical dynasty. Article 57 of the Constitution establishes the rules of succession:

  1. Primogeniture and Representation: Succession follows the order of primogeniture, with representation taken into account.
  2. Preference for Preceding Lines: Preceding lines always take precedence over subsequent lines.
  3. Proximity to the Crown: Within the same line, closer relatives to the Crown are preferred over more distant ones.
  4. Male Preference: Within the same degree, males are preferred over females.
  5. Seniority: Within the same sex, the older individual takes precedence over the younger.

Additional constitutional provisions regarding succession include:

  • Individuals with succession rights who marry against the express prohibition of the King and the Cortes Generales, along with their descendants, are excluded from the line of succession.
  • If all lines designated by law are extinguished, the Cortes Generales will determine the succession in the best interest of Spain.
  • An organic law will address abdications, renunciations, and any doubts regarding the order of succession.

3. Guardianship

Guardianship comes into play if the King is a minor. It’s important to distinguish guardianship from Regency, as the former focuses on the King’s legal and personal well-being, while the latter involves exercising the Crown’s powers on the King’s behalf. Article 60 of the Constitution governs guardianship:

3.1. Assumptions

  • The first guardian of a minor King is the person designated in the late King’s will, provided they are an adult and a Spanish citizen by birth.
  • If the late King hasn’t appointed a guardian, the surviving parent assumes the role until remarriage.
  • In the absence of the above, the General Courts will appoint a guardian.

3.2. Limits

Only the father, mother, or direct ancestors of the King can serve as both Regent and guardian.

3.3. Incompatibilities

The role of guardian is incompatible with holding any political office or representation.

4. Regency

Regency is activated when the King or Queen is unable to exercise their duties due to being a minor or incapacitated. Article 59 of the Constitution outlines the regulations for Regency. The prerequisites for exercising Regency are:

  • Spanish nationality.
  • Being of legal age.
  • Exercising Regency by constitutional mandate and always on behalf of the King.

4.1. Assumptions

Regency comes into effect in two scenarios:

4.1.1. Minority of the King

The order of assumption is as follows:

  1. The King’s father or mother.
  2. The nearest adult relative in line to the throne, as per the Constitution.

The designated individual assumes Regency for the duration of the King’s minority. If no suitable individual is available, a “dative regency” is established, with one, three, or five individuals appointed by Parliament.

4.1.2. Incapacity of the King

If the King becomes incapable of performing their duties and Parliament recognizes this incapacity, the following order of assumption applies:

  1. The Crown Prince, if of legal age, immediately assumes Regency.
  2. If the Crown Prince is a minor, the procedure for a minor King’s Regency is followed until the Crown Prince reaches legal age.

Similar to the previous case, if no suitable individual is available, Parliament appoints one, three, or five individuals to form the Regency.

5. The Endorsement

Endorsement is a legal mechanism protecting the Monarch as Head of State. It stems from the principle that the Head of State enjoys certain privileges, including immunity from prosecution. Endorsement ensures that while the King is not personally liable, their actions are safeguarded to prevent abuse of power.

Essentially, responsibility for the King’s actions is transferred to the endorsing body. For instance, dissolving Parliament is the Monarch’s prerogative. However, the Constitution dictates specific circumstances for dissolution. Therefore, the King requires a proposal from the Prime Minister or, in exceptional cases, the President of the Congress of Deputies, who then assumes responsibility for the action.

Endorsement validates royal acts in the Spanish system. Acts performed without endorsement are generally considered invalid, except for those explicitly exempt from this requirement. This institution originated in the 1812 Spanish Constitution, requiring the signature of “Office Clerks” (predecessors to modern ministers) to hold them accountable for the King’s actions. In 1837, endorsement became a measure of the King’s actions’ validity.

5.1. Constitutional Regulation

Articles 64 and 65 of the 1978 Constitution regulate endorsement:

  • Article 64 states that the Prime Minister, and if applicable, the relevant ministers, must countersign the King’s acts. The President of Congress countersigns the nomination and appointment of the Prime Minister and dissolutions under Article 99.
  • The individual providing the endorsement bears responsibility for the King’s acts.

Article 65 outlines royal acts exempt from endorsement:

  • Allocating the state budget for the maintenance of the King’s family and household.
  • Appointing and dismissing military and civilian members of the King’s household.