The political deadlock in Spain: some problematic issues

The current political situation in Spain presents elements that our system has not previously experienced. As is well known, the results of the 20 December 2015 general election in the Congress of Deputies, following the failure of negotiations between the parties and various attempts at a vote of confidence, led to the maximum period for appointing a president (two months from the first vote of confidence) being exhausted without a result. This, as provided for in the Constitution, led to the dissolution of Parliament and the calling of new elections.
The results of the 26 June elections differed slightly from those of December, but not enough – as things stand – to enable a candidate to be sworn in, which leaves us facing the unusual prospect (at least in Spain) of a third general election taking place in December, possibly involving a prior amendment to the LOREG to shorten the timeframe and prevent the election from having to be held on 25 December, thereby allowing it to take place a week earlier instead.
Be that as it may, this situation gives us cause to reflect on a number of issues. The first of these, from a political perspective, concerns the difficulty of forming governing coalitions at national level. In Germany, coalition governments have been formed on several occasions (as is currently the case) at federal level between the two major parties, the Social Democrats and the Conservatives. This has also made it possible to carry out far-reaching constitutional reforms, such as the federalism reforms of 2006 and 2009. It is nonetheless true, however, that this coalition has also had negative electoral consequences for the Social Democratic Party and, furthermore, that ultimately the public are still unclear about what each party actually stands for.

In Spain, a «grand coalition» is not politically feasible, and an abstention by the PSOE that would allow Rajoy to be appointed Prime Minister could prove counterproductive for the Socialists, as it would go against the wishes of a significant section of their electorate. Nevertheless, some sections of the party appear to be promoting it as the «lesser of two evils», and developments within the PSOE – which has been embroiled in open internal strife since late September – mean that no scenario can be entirely ruled out, including that of an abstention, which could be the way to avoid a general election in December that might prove disastrous for the PSOE, given its current divisions. Finally, other possible coalitions between parties from the same (or similar) ideological spectrum (the PP and Ciudadanos, on the one hand, or the PSOE and the Podemos–IU coalition, on the other) have so far either failed to secure the necessary number of seats or – in the latter case – have not even materialised. Combinations other than those mentioned above have proved to be directly unfeasible.

It is not possible to predict the immediate future at the time of writing (late September 2016), particularly given the internal dynamics of the political parties themselves (which, in the case of the PSOE, are highly turbulent and threaten to lead to a major internal split). These dynamics make it difficult to predict the decisions each party will take at any given moment. However, turning to the legal sphere, it is worth pausing briefly to consider a couple of aspects that have come to light over the past few months.

The first of these concerns whether the person who accepts the King’s request to appear before Parliament to seek a vote of confidence can, having accepted that request, subsequently withdraw. It is not that this has actually happened, but it came very close to doing so. At the end of July, the candidate and acting Prime Minister, Mariano Rajoy, accepted this mandate but later stated that he would only appear before Parliament if he secured sufficient support from other political parties. Had he withdrawn from the mandate, it would have created an unforeseen situation under the Constitution, which is unequivocal in Article 99.2: «The proposed candidate (…) shall present to the Congress of Deputies the political programme of the Government he intends to form and shall seek the confidence of the House». Nor is this something which, once accepted, is intended to be a purely voluntary exercise (in any case, force majeure circumstances suddenly affecting the candidate might be taken into account, but certainly not purely political calculations for stepping down), nor does the Constitution provide for anything in this regard, because the framers did not envisage that this could happen, and the text of the article is unequivocal: «the candidate (…) shall present to the Congress». Furthermore, the first investiture vote marks, as we have already stated, the two-month period within which, if no one has been successfully invested, Parliament is dissolved and new elections are called (Article 99.5 of the Spanish Constitution). If a candidate, who is also the acting Prime Minister, allows the weeks to pass and then resigns, thereby returning the process to square one, they prevent the time limit from commencing and unduly prolong their term as acting Prime Minister. It would, in any case, be a sign of a lack of institutional responsibility.

And, secondly, there is the question of whether Parliament can hold the Government to account whilst it is a caretaker Government – that is to say, whether or not Members of Parliament can compel members of the Government to appear before either House to provide explanations. The current caretaker Government has repeatedly refused over recent months to allow its members to comply with such requests to appear, arguing that the relationship of trust between Parliament and the Government – established by the President’s investiture by Congress – no longer exists, as that relationship came to an end when the parliamentary term ended. However, it is no less true that Article 26.2 of the Government Act states that «all acts and omissions of the Government are subject to the political control of the Cortes Generales», without distinguishing between whether the Government is acting or not. Above all, it is hardly defensible from a democratic point of view that a Parliament should be unable to scrutinise the Government (whether or not it is a caretaker Government) for months on end. Parliament is made up of the citizens’ representatives, and this should be the decisive argument. In any case, the matter is currently in the hands of the Constitutional Court, which will have to choose one interpretation or the other.

Meanwhile, the political stalemate continues, and the situation could become even more complicated given the government’s obligation to comply with the deficit-reduction measures imposed by the European Union. For the time being, the EU authorities have agreed to accept extended budgets, given that, in the absence of a government being formed, it is impossible to approve new budgets for 2017. However, cuts are still being demanded through other channels, even if this means further dismantling the welfare state, and there are threats to freeze EU structural funds earmarked for Spain if EU guidelines or requirements are not met – yet another sign that the concept of state sovereignty has long since become more a feature of history books than of reality.

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Miguel Ángel Cabellos Espiérrez
Senior Lecturer in Constitutional Law
University of Girona