There is no doubt that the Public Prosecutor’s Office has been studying the conduct of Don Juan Carlos de Borbón in the last three years, but not with the purpose of trying to find evidence that could justify that such conduct could be lodged before the Second Chamber of the Supreme Court , to demand the corresponding criminal responsibility, but for the opposite. The purpose of the investigation was to exonerate the king emeritus of any criminal responsibility, even informing his defense of what he had to do, tax regularization for example, so that such exoneration could be justified. After three years of an investigation that has been said exhaustive, the Public Prosecutor’s Office has come to the conclusion that there is nothing to criminally reproach Don Juan Carlos de Borbón. This is what El Confidencial has advanced this Wednesday. All the other media have supported it.
In my opinion, the Public Prosecutor’s Office has acted correctly. It is not the Supreme Court, but the General Courts, which have to investigate the execution of Don Juan Carlos during the years he was serving as king and decide what they deem pertinent. Said execution is a problem of a constitutional nature, which can only be investigated by the constitutional body representing the “Spanish people”, in which “national sovereignty” resides and from which “the powers of the State emanate” (art. 1.2 CE) . Only after a response to the problem of a constitutional nature had been given, could it be considered whether any liability of any kind could be derived from said response.
The Public Prosecutor’s Office and the Supreme Court are not there to do what the Cortes Generales have to do. “Justice emanates from the people and is administered in the name of the king …” are the first words of Title VI of the Constitution dedicated to the Judiciary. To pretend that those who administer justice in the name of the king become judges of the conduct of the one in whose name they do so is a contradiction in terms.
In the Spanish Constitution there is only one constitutional body that represents the “Spanish people” immediately and directly. That body is the Cortes Generales. And he is the only one who has, consequently, the legitimacy to open an investigation into the conduct of the king and decide, if any, what kind of reproach deserves such conduct.
The judiciary can solve the problems it can solve and cannot solve the ones it cannot. When it is intended to solve the ones it cannot, the result is nonsense. We have already had the opportunity to verify this in the constitutional crisis in Catalonia. Political problems have to be resolved by political bodies, bearers of a “visible” democratic legitimacy and not by bodies that lack such “visible” legitimacy, although they also have it.
And there is no problem of a political nature of greater importance than the investigation of the king. The Government and the General Courts cannot exonerate themselves from this obligation and delegate it to the judiciary. The king is not a citizen like the others. It is the only case of “inequality” in our political system. An inequality wanted by the constituent, but inequality in the strongest sense of the term. Article 14 is not, consequently, applicable to the owner of the Crown.
The system of administration of justice rests on the principle of equality and does not appear in the Constitution so that, based on it, the conduct of the king is investigated as if he were just another citizen, just like everyone else. The uniqueness of their position in our constitutional system requires that the body that can investigate their conduct also be a unique body, different from the one that investigates the conduct of all other citizens who are the same.
It follows from the principle of equality that only the judges and magistrates who make up the judicial power can understand the conduct of any person. The contrary conclusion follows from the constitutionalized “inequality” in favor of the king. They cannot be the judges and magistrates, but the deputies and senators who make up the Cortes Generales and who express the “will of the Spanish people” the only ones who can understand the conduct of the king.
I know that I am preaching in the desert and I have no hope of being heard. We are going to attend one more step on the slope of the decomposition of the Spanish political system through which we have been sliding for a long time.