Thursday, October 6


Alfonso Guerra, who once treated Juan Carlos I with a certain disdain in his days with corduroy and raised fists, is today a firm defender of his political legacy. Due to this circumstance, which frees him from any suspicion of anti-corruption militancy, it is especially appropriate to recall his intervention in November last year in the Salvados program, now that the Prosecutor’s Office is preparing to archive the three investigations opened to the emeritus.

In that program, the journalist Gonzo asked him how article 56.3 of the Constitution had been negotiated at the time, which establishes that “the person of the king is inviolable and is not subject to responsibility.” “We didn’t have to negotiate it,” Guerra replied. “We had many problems ahead, the Church, the territorial issue, if there would be a monarchy or a republic, and when articles arrived that had no amendments, and that one did not have them, we passed them. This was voted unanimously; the draft brought it like this, and so it came out. ” The former vice president was in favor of reforming this and three other articles related to the Crown. “It should be clarified that [la inviolabilidad] it is for acts derived from his function as king. It is not said and, therefore, both interpretations fit. Common sense indicates that, although it is worded like this, it refers to the acts derived from its function, but someone can say: man, the literal meaning does not say so. ”

That someone, who would have thought, has turned out to be the Prosecutor’s Office. According to journalistic information, the Public Ministry is about to close the investigation to the emeritus without having received all the documentation in the possession of the Swiss justice and invoking among its arguments the inviolability of the king enshrined in article 56.3. According to the thesis of the Prosecutor’s Office, some of the alleged crimes investigating the former monarch – in particular the 100 million dollars that he received from the King of Saudi Arabia and that he entered into a Swiss account in the name of a foundation based in Panama – are they produced before his abdication in 2014 and, therefore, cannot be tried, since Juan Carlos enjoyed immunity at the time. The Prosecutor’s Office, apparently, seems inclined to apply the most elastic interpretation of the constitutional text, knowing – you do not have to be a lynx to know it – that said interpretation directly collides with the common sense that Guerra spoke about and sends to society the implicit message that the Constitution, the fundamental text of democracy, can serve as a barrier to corruption. The Prosecutor’s Office could choose between availing itself of the spirit of the norm or its letter to guide the case, and apparently it has opted for the letter, which enshrines a democratic anomaly such as the absolute lack of responsibility of the head of State.

The negotiators of the Constitution were not worried about this conflict at the time, because they were very busy with other matters. But the most striking thing is that, more than four decades later, and especially with the one that is falling due to the emeritus scandal, article 56.3 continues with its original wording. It is clear that common sense was not enough to understand the text – perhaps Voltaire was right when he wrote, two and a half centuries ago, that the sensus communis It no longer means to us even half of what it did in its day to the Romans, so it is imperative to modify it so that there is no doubt that monarchical absolutism is a thing of the past. It is surprising to say the least that it is necessary to clarify in the XXI century that a king cannot have unlimited immunity that is mistaken for impunity. Different thing are the rules that are established to investigate the monarchs. In a recent and very interesting column in this medium, the constitutionalist Javier Pérez Royo stated that, due to the unique political nature of the Crown, the investigation of Juan Carlos should be conducted in the Courts, not in the judiciary. Others defend both routes.

Beyond the final decision made by the Prosecutor’s Office, and which must be complied with, it is worth asking what is being done in the political field to undertake the many times announced “modernization” of the monarchical institution. Little or nothing has been heard of the Crown law that President Sánchez spoke about almost a year ago. Nor are the most elementary constitutional reforms on the horizon: those that clarify the scope of the king’s inviolability, those that put an end to discrimination against women in the line of succession to the throne, and those that limit the monarch’s power to distribute freely, without external controls, the budget assigned to the Royal House. It seems that the strategy of the majority parties was to let the storm for the emeritus subside and for things to run its course as if nothing had happened. They do not even bother to apply the maxim of Tancredi Falconeri and change something, even three modest constitutional reforms, so that nothing changes.