The Constitution states that the monarch must listen to the groups to propose the candidate for the Presidency of the Government but does not specify that the first to submit to the investiture must be the candidate with the most votes
History repeats itself in Spain, although with nuances. The election results of this July 23 have left a complex parliamentary map, difficult to channel, and if we stick to what happened in 2015, the wait can be long and agonizing for some parties. It took six months that year for the political groups to realize that there was no way to reach an agreement to invest a president and form a government. They did not know or the strategy led them not to want to, hoping that a new call would improve their results. So, just like now, won the PP but he had no one to add with. Neither the PSOE. The difference is that now there two candidates who with the results in hand want to present themselves for the investiture.
He King Felipe VI will have to decide after his round of contacts if he proposes the winner of the elections as a candidate, Alberto Núñez Feijóo, or if he directs the proposal towards the second party with most votes if he shows that he has more chances of obtaining a sufficient majority. For now, Pedro Sánchez insists on saying that he will achieve it without counting on the popular ones: “Democracy will find the formula.” On August 17, the day Congress is constituted, these supports could already be intuited.
Article 99 of the Constitution contains the heart of the matter. The King proposes, but neither before nor after, the Constitution says to whom. He Professor of Constitutional Law at the University of Barcelona, Xavier Arbós, explains that there are “gray areas” in the Magna Carta but that “they are marked by custom.” The aforementioned article only points out that the King “after consulting 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 round in Zarzuela will not begin until the Congress is constituted. Arbós understands that “it should not be interpreted that the King has to propose a candidate who has already secured a majority to be sworn in. There is a margin to support a candidate who does not have everything tied up but has expectations that with the pressure of a new electoral appointment he can convince the wavering groups”.
Rajoy’s precedent
This is what happened after the elections December 20, 2015. The King, who was exercising his obligation to propose a candidate for the Presidency of the Government for the first time, understood that Mariano Rajoy (123 seats) should try. Against all odds, the then leader of the PP left the Zarzuela rejecting that proposal because he knew that he did not have enough votes and wanted to buy time, since only once the investiture date had been set the clock starts ticking.
In the first vote, an absolute majority is necessary, if it is not achieved, 48 hours later there is a new vote in which a simple majority is enough, more yeses than noes. Then the Constitution grants two more months of negotiations before calling elections again. “The king’s role is to ensure the regular functioning of the institutions. If a candidate is not viable, his duty is to propose one who can at least start the clock” and the deadlines begin to run, explains Arbós.
parliamentary system
precisely for this reason, Javier Lorente, Professor of Political Science at the Rey Juan Carlos University, interprets that in the current circumstances “what is expected is that the King will call whoever has the most support.” The expert is blunt: “This thing about winning elections does not exist in a parliamentary regime. Whoever has the majority to govern wins.” Along the same lines as Arbós, he explains that it is not imaginable that the monarch “make decisions based on criteria of political opportunity” and that “his role is formal”, so he deduces that the two most relevant figures in Congress will have to “show their credentials” to Felipe VI and this one decides who he proposes based on the support they have, even if none of them has an absolute sum. Bearing in mind that some pro-independence groups will foreseeably refuse to meet with the King as they have done previously, the information on possible support will have to be provided by the candidates themselves if the agreements are not previously made public.
If the investiture of a candidate fails, the Magna Carta says that “they will process successive proposals“, without specifying a number. The Catalan professor points out that this “does not mean that you are entering an unreasonable period, it is ridiculous to think that the third will work. If the second is not viable, the King is not expected to proceed with any further proposals.”
The 2015 negotiations failed and six months later, the June 26, 2016 the polls were reopened for a new vote. The result was not resounding then either, but Rajoy improved his results (went from 223 to 137) and Sánchez obtained the worst result in the history of the PSOE (85). That ended with a abstention of the PSOE who favored the Rajoy government only after the party organs expelled Sánchez de Ferraz. Before, the socialist leader came to grant a hypothetical abstention from his parliamentary group only if the PP changed its candidate for the Presidency, something that the PP never considered.
Hypothesis of a “technical government”
Arbós recalls that the King “is not bound by what the political groups say” and that “there is a margin for him to propose a person from outside politics for what is called a technical government“. He himself acknowledges that this is only a hypothesis and that “the filter” for such a proposal is in the presidency of Congress. “There is a discussion between jurists”, between those who believe that “the president could refuse to process a proposal from the king that he considers to be out of place” and those who believe that he is “obliged” to execute what Zarzuela indicates.
In any case, he acknowledges that right now this is talking about “political fiction” and that “the most reasonable hypothesis” is that “if there is no clear majority”, the king’s proposal “falls on Feijóo”. The popular leader has said that he will try, but for now, only one day after the results were known, Sumar has opened a dialogue channel with the party of Carles Puigdemont, whose seats in Congress are key to a hypothetical Sanchez investiture.