The Spanish Crown: Role and Succession in the 1978 Constitution
Item 19: The Crown
The King and the Crown: Head of State
The Head of State in the 1978 Constitution has in common with the above that it is a hereditary monarch who holds the judiciary. The King in Spanish historical constitutionalism was inserted into the branches of government that shaped the country’s political system. The King of the 1978 Constitution is out of the game between the branches of government, left out of the political process.
The 1978 constituent has been traditional and innovative at the same time. Traditional, as it has in constitutional monarchy as a form of state policy. Innovative, as it has in constitutional monarchy in a way that has nothing to do with the previous constitutional tradition. The constituent proceeded to do two things:
First, it renamed the title on the Head of State. Instead of heading that title with the words “Del Rey” (Of the King), the 1978 Constitution replaced the personal term “Del Rey” with the impersonal “The Crown”.
Second, it radically altered the very location of the title on the Crown in the 1978 Constitution. In fact, throughout Spanish monarchical constitutionalism, the same order had been followed without exception in the constitutional regulation of state organs. This consisted of starting with the courts as holders of the legislature and including immediately after the title on the King as head of the executive.
The 1978 Constitution breaks more radically with this tradition. For the first time, a Spanish constitutional text will regulate the Crown before the Parliament. Part II will be dedicated to the Crown, and the third one dedicated to the Parliament.
The Powers and Functions of the King
The functions that the Constitution assigns to the King are systematically collected by Articles 62 and 63.
- International Relations:
- Accredit ambassadors and receive foreign ambassadors.
- Express the State’s consent to international commitments through treaties.
- Declare war and make peace, after authorization by Parliament.
- Articulation of Popular Sovereignty:
- Call and dissolve Parliament.
- Call for elections.
- Call for a referendum.
- Legislative Function: Sanction and promulgate laws and order their publication.
- Executive Function:
- Propose and appoint the Prime Minister.
- Accept the Prime Minister’s resignation.
- Appoint ministers proposed by the Prime Minister.
- Confer civilian and military jobs.
Inviolability and Endorsement
The inviolability and endorsement in monarchical constitutionalism presuppose the origins of the Constitutional Court, a real and effective power that must be controlled. Inviolability and endorsement are two institutions that have lost all political sense in the State of today. There were two institutions through which they exercised government control of the power of the monarch, who needed the ministerial countersignature, without which their actions were not valid. Secondly, parliamentary control, to the extent that ministers were politically and criminally responsible for the acts of the monarch.
In the 1978 Constitution, the King is a power, and therefore the sanctity and endorsement have lost all political sense. Inviolability ceased to be, then, the defining characteristic of a state power to become the result of a function devoid of any impact on the political process. The endorsement has become a mere ritual.
Succession and Regency
Legitimate succession is regulated in Article 57.1. If in the Middle Ages probate could be accommodated, it is not possible today. In the event of termination of all lines of the royal family, the Constitution provides what we might call parliamentary succession. The King has to take an oath before the Cortes at the time of his adoption by them. In this oath, he must swear to perform his duties faithfully, to obey the Constitution and the laws, and to respect the rights of citizens and the Autonomous Communities.
It is noted that the consort of the King is the Queen, while the consort of the Queen is not King. The Regency would be an exceptional situation in which the corresponding functions are not carried out by the King, either because he is a minor or because he is disabled “for the exercise of his authority.” The disqualification must be recognized by the Cortes Generales.
If the King is a minor, the Regency is on the father or mother of the King and, failing that, in the adult relative nearest in succession to the Crown. If the King is disabled, the Crown Prince will be Regent if he is of age.