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A legal framework for the king
Jul 7, 2014

There is no doubt that the abdication of Juan Carlos is a historic event of the first magnitude. A large part of Spaniards have lived a lifetime with his figure. Although the democratic maturity of our society leaves no doubt, the second transition to be embodied by his son Felipe VI - perhaps prophetically named King - is complicated. It is complicated for a number of reasons, among which the problem of Catalonia and social discontent with the institutions are not trivial. But it is also complicated because there has been no deep-rooted monarchical tradition since 20th century Spain. And it is complicated, as far as we are concerned, because the Constitution was not intentionally careful in designing the regime of the Crown.

In addition to this, there is a regulatory vacuum of almost four decades. Aware of the sensitivity of the issue and in view of the difficulties that each political era may have entailed, the Royal Household, rectius the King, has preferred not to have an impact on the approval of a Law that would develop, in all its complexity, the doubts or difficulties that the regime of the Head of State could imply. Now that the time has come to take over, we find that the Statute of the Crown, which should have smoothed out this situation and many others, is missing. Nothing new is being discovered if it is said that the two majority parties - to which UPD will responsibly join - constitute a solid basis for the transition in a country that, although not monarchical, respects the stability that the Crown currently represents. For this reason, has the announced replacement of Rubalcaba, who is a statesman, been decisive in terms of what might come in his place in the new scenario? The replacement of the King and Queen, without any solution of continuity, will be carried out by means of an organic law. ad hoc. This has been decided by the government.

To this end, a draft has already been sent to the Cortes for processing. This is a concise text, without concessions, with a careful, unusual, pedagogical report, which will have to be approved urgently by the Cortes. This is to ensure that the solemn and discreet ceremony of the transfer of the Head of State, which the Constitution outlines without further ado and which will have to be invented, can take place as of 18 June, as has been indicated. It would be appropriate and endearing if the date chosen were 24 June, the feast of St John, as a tribute to the father and grandfather of the new King, predecessors in the dynasty. What is surprising about the draft organic law? Apart from the choice of this technique, its exquisite neutrality and dissection: an organic law for the specific case that solves nothing beyond the abdication and prejudges nothing. This is clearly stated in his memoir, even recalling, needlessly, as a matter of course, that it does not affect the succession regime. Once Leonor is Princess of Asturias, this generation will not need to change and the legislative solution requires the dissolution of the Cortes, which rationally will have to be done on the occasion of a general election. No clues are given in the brief Organic Law, but, together with the constitutional reform that is being forged with the trigger of the situation in Catalonia, the issue of non-discriminatory succession should be closed. Once the succession has taken place, the Crown will have to have a complete Statute that adds normality to the Institution. In other words, to evolve from an instrument of transition to an Institution of a consolidated democratic State. In detail, the new Organic Law leaves unaddressed important issues such as the procedural status of the former King and his future status, as well as that of Queen Sofia, who is called upon to play an essential supporting role. The advisability of regulating on the occasion of the organic law ad hoc These days these questions deserve mixed opinions. What is certain is that its neutral design has been intentional. Presumably the issues will be addressed immediately upon succession. Establishing the status of the former King can be done in a Royal Decree - without prejudice to the dignities that the new King may wish to ordain, in his dynastic attributions. It will be contemporaneous with the effectiveness of the abdication.

More worrying is the lack of a special procedural status for King Juan Carlos. The Constitution establishes that the person of the King is inviolable, (only he) with the various interpretations of the scope of the privilege that can be adopted. Therefore, King Juan Carlos, when he abdicates, will not be inviolable. Instead, when this privilege is regulated by law, he will simply be aforado. It is clear that claims based on his activity as King will have to be rejected by the Courts, but it is possible that a battery of legal actions will be brought against him in a variety of ways, with the corresponding impact on public opinion. This is a matter of great concern, as is the Spanish Government's lukewarmness in substance, not in form, towards the Crown. For this reason, it will have to improve its structure in order to face what lies ahead.