The book of memories of the king emeritus Juan Carlos, Reconciliationcontains a constitutional reflection on which it is worth stopping.
According to his interpretation, the fact that the Constitution establishes the monarchy by expressly citing him means that “the monarchy does not rest on several generations of constitutional monarchs; it rests entirely on me. It is not like the United Kingdom, which has never known a republic. By excluding me, I fear that the Royal House will weaken the monarchy. I fear that a fissure will occur that will crack the foundations with the risk that, at the slightest storm, everything will falter.”
Let’s ignore the small historical error about the lack of British knowledge of the republic, since they had it in the 17th century, only under the name of the Commonwealth of England and also in the French way, after beheading the king, Carlos Iwhich has never happened with the two Spanish republics.
Let’s focus on the main thing, which logically is the institution in Spain and not abroad.
The emeritus king is correct in stating that the 1978 Constitution established the monarchy because it deviates from the monarchical constitutions of our history that admitted this institution as a prius prior, something given, more or less like the territory and the inhabitants with which the State had to be structured.
Hence Antonio Canovas del Castillo theorized that it was an essential part of the internal (historical) Constitution of our country.
Juan Carlos I, on November 5 in O Grove (Pontevedra).
On the contrary, the current text states that “The Crown of Spain is hereditary in the successors of HM Don Juan Carlos I of Borbón, legitimate heir of the historical dynasty.”
Until 1978, no monarch had appeared within the articles of the Lex legum.
Juan Carlos’s statement is also true that the approval in the referendum gave the monarchy extra democratic legitimacy, without it now making much difference whether “87% of Spaniards” voted for it, as he erroneously points out, or only the participants in the referendum of December 6, 1978.
In any case, nearly sixteen million Spaniards voted in favor of the current Constitution, which enshrines the parliamentary monarchy as the “political form of the Spanish State.”
Now, to affirm that, because the monarchy was established based on him, that is why it “rests entirely on me”, is a more than debatable opinion, if not distorted or, better, outdated. A conception of the monarchy as an institution that depends on one person cannot be maintained.
Legally, because the monarchy rests on the Constitution, just like the other institutions of the State.
And politically, because the Crown finds its legitimacy in social utility, that is, in how the monarch exercises his functions.
If today more than a few theoretical republicans are happy to accept that the head of state is Philip VI It is because we consider that it is fulfilling a useful function for political and social coexistence.
“From a constitutional point of view, it is more than evident that there is little attack on the Crown for criticizing someone who is no longer its owner”
To put it in the words of a good friend: Today it seems that the “parliamentary monarchy is the only possible republic in Spain”.
Thus, Juan Carlos makes a mistake again when he writes that “by attacking me, it is not my person that is being attacked, since basically from now on I am little, but rather the institution of the Crown. By denigrating it, the State, the unity of the country and its democratic foundations are harmed.”
From the constitutional point of view, it is more than evident that there is little attack on the Crown for criticizing someone who is no longer its owner, even more so someone who ceased to be its owner due to their conduct. Because as the teacher says Manuel Aragonthe irresponsibility of the monarch has the counterpart of exemplarity.
Juan Carlos did not have it, and hence his abdication in June 2014.
It is also evident that it does not bring prestige to the Crown that whoever carried it took advantage of it for private businesses, some bordering on criminal.
And so, it is true that more than one enemy of the monarchy attacks the emeritus king in order to weaken the institution.
But the solution is not as he asks, to stop criticizing him. On the contrary, it is a new reason for criticism.
We cannot say that the solution to the criticism of the monarchy due to Juan Carlos is that the king had not carried out those reprehensible behaviors, because that is the same as crying over spilled milk.
But the solution (perfectly within his reach) is to accept with dignity all the reproaches made against him, which will ensure that, over time, his asset (his decisive contribution to the establishment of democracy) will once again occupy a more visible place than his liability (his subsequent unexemplary behavior).
To put it in his own, and already somewhat worn, words from November 2007: “Why don’t you shut up?”
*** Agustín Ruiz Robledo is a professor of Constitutional Law at the University of Granada and Visiting Professor de la BITS Law School from Bombay.