LA FORMA DE GOBIERNO EN LA CONSTITUCIÓN DE CÁDIZ (REFLEXIONES SOBRE LA CONFIGURACIÓN DE LA JEFATURA DEL ESTADO MONÁRQUICA1)

• Published in: Revista de derecho político 2012-01 (83), p.198
• Main Authors: Ferriz, Remedio Sánchez, Liern, Göran Rollnert
• Format: Article
• Language: Spanish
• Subjects: Constitutions; European history; Royalty; Separation of powers; Sovereignty
• ISSN: 0211-979X; 2174-5625

Starting from the historical circumstances of the Spanish Parliament («Cortes») of Cádiz and the precedents of the Spanish monarchy, the article analyses the position of the monarchic Head of State in the Con- stitution of 1812 characterized as a «moderate monarchy» based on the structural principles of national sovereignty and separation of powers that determine the configuration of the King as a constitutionally limited institution in the new form of government. The assertion of national sovereignty pervades the whole of the Con- stitution without detriment to coexist with the old rhetorical monar- chical legitimacy. Moreover, the separation of powers involves the dis- tinction between ownership of sovereignty and its exercise by the constitutionally limited institutions, considering the King the «re- ceiver» of the executive branch against a Parliament that, as it repre- sents the Nation owner of the sovereignty, takes a decisive role in the exercise of the King's functions. The scope of the broad powers grant- ed to the King is delimited with the numerous restrictions imposed on a system of strict separation of powers. The «moderate monarchy» proclaimed in Cádiz is not a simple variant of the limited European monarchies based on the monarchic principle but a system of government founded on national sovereignty and the distribution of state functions that limits the authority -constitu- tionally limited rather than sovereign- of the monarchic Executive. Although the Constitution of Cadiz confered the King not only the powers of a Head of Government itself but also those that the subse- quent evolution of monarchies with time attributes to the King as Head of State power profile independent of the Executive, it was not possible in Cádiz to come in a parliamentary monarchy in which King leaves in the hands of a government exclusively subject to parliamen- tary confidence the ruling of politics and the exercise of the executive power (although it retains its formal title), reaching such this conclu- sion on the ground of the absence of three key assumptions: a colle- giate government with executive and political power independent of the monarch, a relationship of trust between the Executive and the Parliament and a core of representative functions of the Head of State himself independent of his official title of executive power. [PUBLICATION ABSTRACT]