The Spanish constituent of 1978 imposed a single breach of the principle of equality in the political system and in the legal system of the State. And he also imposed it with a first and last name. D. Juan Carlos I de Borbón, by reason of birth, “legitimate heir of the historical dynasty”, has a different political and legal status from that of all other Spanish citizens. This bankruptcy in the initial moment of the monarchical restoration is complemented by another: the prevalence of men over women in the succession of the Crown. D. Juan Carlos I de Borbón and his son Felipe VI are the only two exceptions to the principle of equality admitted in our Constitutional State. We can classify that of D. Juan Carlos I de Borbón as an “original” exception and that of D. Felipe VI as a “derived” exception. The second is tributary of the first, although the source of both is the same: the Spanish Constitution of 1978.
This is an incontrovertible fact that cannot, moreover, be dispensed with when addressing the examination of the King’s conduct in the exercise of the task that is constitutionally entrusted to him. Neither D. Juan Carlos I nor D. Felipe VI are Spanish citizens, as are all the other citizens of the State. The rest of us have the same legal-political status: we are holders of all the rights recognized in the Constitution under conditions of equality. That is what constitutes us as citizens.
The status of D. Juan Carlos I and D. Felipe VI is “constitutively” different from that of other Spaniards. This is how the Spanish constituent wanted it after the death of General Franco. And so it continues almost fifty years later, without the Organic Law provided for in Article 57 of the Constitution having been enacted to interpret normatively the exception to the principle of equality provided by the constituent.
This breach of the principle of equality is once again projected in the first words of the definition of the Judicial Power in article 117.1 of the Constitution: “Justice … is administered in the name of the King …” It is administered by “independent” judges and magistrates only subject to the rule of law “. But they do it “in the name of the King.”
Can it be understood that the examination of the conduct of the king in the name of whom said jurisdictional function is exercised enters into the exercise of the jurisdictional function? The principle of equality does not operate with respect to the king. This principle is, on the contrary, the premise on which the exercise of the jurisdictional function rests.
Given the position of the king in the constitutional building of the State, only the Cortes Generales as representatives of the Spanish people directly democratically legitimized have the authority to examine the conduct of the king in the exercise of the tasks that are constitutionally entrusted to him.
The trajectory of D. Juan Carlos I de Borbón as King of Spain and Head of State can only be analyzed by the constitutional body in which the “national sovereignty that resides in the Spanish people” crystallizes through the exercise of the right to vote. The Cortes Generales are institutionally the expression of national / popular sovereignty. They do not exercise the constitutional functions entrusted to them “in the name of the King”, but in the name and representation of the “Spanish people” and, consequently, they are free to decide on the way in which the State should react to any problem that arises. without the need for express authorization to do so by the Constitution.
After the information that is laboriously leaking on what has been the conduct of King Juan Carlos I, it is not the prosecutors and the courts of justice who have to deal with examining said conduct. We are facing a “political” problem of the first order. What is being questioned is the execution of D. Juan Carlos I during the years in which he held the Head of State. That is not a task for prosecutors and judges, but for the only constitutional body that has direct democratic legitimacy.
Because, in addition, the Cortes Generales are the only constitutional body that has the legitimacy to decide, after examining the conduct of Mr. Juan Carlos I de Borbón, in what way the State should react, what innovations should be introduced into our system political and in our legal system, so that the person who occupies the Head of State as King cannot act in the way that D. Juan Carlos I.
The problem that Spanish society has to face after the knowledge, fragmentary for the moment, of the conduct of Mr. Juan Carlos I is not a problem of a criminal nature, but of a constitutional nature. Only a constitutional body with direct democratic legitimacy can face it.
Spanish society cannot leave with dignity the unworthy alley to which the conduct of D. Juan Carlos I de Borbón has led it without the intervention of the Cortes Generales. It is not the time for the Courts. It is the Cortes Generales that have to take the bull by the horns, inform the public of the highlight of their investigation and then decide what they think they should decide.