In accordance with the provisions of articles 173.1 a) of the Regulations for the Organization, Operation and Legal Regime of Local Entities (Royal Decree 2568/1986, of November 28) and 54.1 a) of the Royal Legislative Decree 781/1986, of April 18, revised text of the legal provisions in force regarding the Local Regime, by order of the Hon. Acting President, a legal report is issued on the following matter:
- Who is responsible for assuming the Presidency of the Cabildo Insular de Lanzarote and the procedure to be followed, once the Plenary of the Corporation has taken note of the resignation from said position of Mr. Francisco Cabrera García?.
A letter of resignation from the Presidency of the Cabildo Insular de Lanzarote was submitted by Mr. Francisco Cabrera García, of the Popular Group in the Institution, dated June 14, 2005, document number 9177, which became effective on the 20th, through the acknowledgment by the Plenary of the Corporation, in accordance with the provisions of article 60.4 of the Regulations for the Organization, Operation and Legal Regime of Local Entities (RD 2568/1986, of November 28).
In this case, the Presidency has been vacant until it is filled in the manner established by the Electoral Legislation, being held in the meantime by the Acting President, with the powers and purpose provided for in article 67 of the aforementioned Regulations.
Once the Presidency is vacant, among other cases, due to the resignation of its holder, the extraordinary session for the proclamation and inauguration of the new President will be held with the requirements established in the electoral legislation, within ten days following the acknowledgment by the Plenary.
I.- BACKGROUND.
The issue that arises at this time with the resignation of Mr. Cabrera García is more unique due to the circumstance of having accessed the Presidency through a Motion of Censure and belonging to a group with only three councilors out of the twenty-three that make up the Corporation.
The background of this situation, known to all, is summarized broadly as follows:
* Proclamation and inauguration of the first candidate on the list with the highest number of votes in the Local Elections of May 25, 2003, Mr. Martín Martín, of the Independent Party of Lanzarote. Session of June 21, 2003.
* Resignation of Mr. President. Letter dated June 24, 2004, and acknowledgment in a plenary session on July 14.
* Resignation in the plenary session of July 26, 2004, of Mr. Juan Pedro Hernández Rodríguez, second on the list of elected councilors of the Independent Party of Lanzarote. Proclamation and inauguration in the same session as President of the Institution of the third on the aforementioned list, Ms. María José Docal Serrano.
* Presentation of a Motion of Censure against the President in a letter dated February 11, 2005, entry number 1,545.
* Resignation of Ms. María José Docal Serrano from the Presidency dated February 17, 2005, entry number 1,825.
* Debate and vote on the Motion of Censure. Plenary session of February 23, 2005.
* Letter from Ms. María José Docal Serrano, dated June 6, 2005, communicating that she withdraws her resignation from the Presidency, submitted on February 17.
II.- CONSULTATIONS.
In view of this situation, the General Secretariat submits a query to the Central Electoral Board, as the highest advisory body in this matter, by means of letter 5562, dated June 3, 2005, supplemented by another letter dated the 7th of the same month, and reiterated by the Acting President on the 14th and 20th of the same month, after the resignation of Mr. Francisco Cabrera García and acknowledgment by the Plenary, respectively.
Likewise, a query is raised from the same Secretariat to the Ley Documenta Service, recommending, after some considerations, that the query be submitted to the Central Electoral Board.
Having received a reply by fax to the query submitted, the Central Electoral Board, by agreement of June 23, 2005, confirms the opinion of this General Secretariat, which is set out below:
III.- QUESTION RAISED.
The question that arises, once the Plenary of the Corporation took note of the resignation of Mr. Cabrera García as President of the Cabildo Insular de Lanzarote, focuses on who is responsible for assuming the Presidency and the procedure for doing so.
Different options have been considered in this regard, both in relation to the list on which this right falls and the procedure to be followed for the proclamation of the new President.
With the submission by Ms. María José Docal Serrano, dated June 6, 2005, of the letter withdrawing her resignation from the Presidency, a new element of doubt is added, given the lack of development of article 201.5 of Law 5/1985, of June 19, of the General Electoral Regime.
This precept, a basic principle in this matter, determines that: "The President of the Island Council shall be the first candidate on the most voted list in the electoral district."
Based on this precept, which is not very explicit but is specific, and based on the background described in section I, various questions could be asked for comment:
* Does the councilor who currently holds the status of head of the most voted list to the Cabildo de Lanzarote in the Local Elections of May 25, 2003, retain the right to occupy the Presidency?
* Who holds the status of head of the list in the Independent Group of Lanzarote (PIL), which obtained the largest number of councilors to the Island Institution in the aforementioned Elections?
* Has this right passed to another list?
* Could the election system be used, similar to the one provided for Mayors?
To answer these questions, we analyze the following points:
A) Reservation of the Presidency for the most voted list.
a) Basic precept.
As indicated above, the basic precept in Organic Law 5/1985, of the General Electoral Regime, in relation to the Presidency of the Island Councils, is article 201.5, which imperatively states "Shall be President", which makes the Presidency fall on the most voted list, unless resignation is made effective in writing before the Plenary of the Corporation. (Then "political groups". TC- S nº 31, of January 26 and nº 185, of May 31, 1993; TS-S of February 8, 1994, and TS-S of January 31, 1997, among others).
The generality of this precept and its lack of specificity may raise certain doubts and give rise to various interpretations, which even leads one to think about using the system provided for the election of Mayors, since the resignation of Mr. Cabrera García involves the singularity of having reached the Presidency through a motion of censure, which is presented, precisely, against the person who at that time is head of the list of the Independent Party of Lanzarote (PIL), Ms. María José Docal Serrano.
b) Interpretation of the basic precept.-
As a preliminary issue, it should be mentioned that the electoral system constitutes one of the essential pieces of any democratic political system, including the local one, and there is no perfect electoral system in all its facets, nor for all or for all aspirations; a field in which arbitrary experiments and easy panaceas should be avoided, as is evident in the publication of the Ministry of Public Administrations "Electoral systems and counting methods at the local level" - 2001 edition.
The Electoral Law itself contemplates two different procedures for Presidents of Island Councils and Mayors in municipalities with more than two hundred and fifty inhabitants, proclamation and election, respectively, direct and indirect, (articles 201.5 and 196, respectively.)
In order to clarify the issue, we must resort to a systematic and historical interpretation of article 201.5, already referred to.
In this regard and with reference to the application of legal rules, the Civil Code, in its article 3, establishes the following: "Rules shall be interpreted according to the proper meaning of their words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally attending to the spirit and purpose thereof."
c) Legal background of article 201.5.
The assignment of the Presidency of the Island Council to the most voted list is not something new. It comes from the beginning of the current democratic State and with precedents, although without sufficient subsequent development, in various Provisions, which we list below:
1) Law 39/1978, of July 17, on Local Elections, which in its article 37.4 states: "The President of the Island Council shall be the first candidate on the list that has obtained the most votes in the election of councilors, in the corresponding island district".
2) Royal Decree 118/1979, of January 29, which regulated the elections of the Island Councils. It highlighted in its explanatory memorandum that it was necessary to develop Title IV of the Local Elections Law for the Island Councils, given the peculiarities that exist in the Canary archipelago and in use of the authorization granted to the Government by the First Final Provision of the aforementioned Electoral Law.
Its article 6 determines: "The President of the Island Council, in accordance with the provisions of paragraph four of article thirty-seven of Law thirty-nine/nineteen seventy-eight, shall be the first candidate on the list that has obtained the most votes in the election of Councilors for the district corresponding to the entire island."
3) Royal Decree 49/1983, of March 9, which modifies certain precepts of the aforementioned Royal Decree 118/1979, also attributing the Presidency of the Island Council to the first candidate on the list that has obtained the most votes in the election of councilors in the corresponding district.
4) Mention can also be made of a Resolution of the General Directorate of Local Administration, of May 27, 1979, which established the criteria for interpreting the regulations in force regarding the operation of Local Corporations, where, when referring in its second section to the resignation of Presidents of Corporations, only in relation to Mayors, it indicated that once accepted by the Corporation, it will "necessarily entail a new election".
d) Amendments to Organic Law 5/1985 of the General Electoral Regime regarding Presidents of Island Councils.
It is with the amendments introduced by Organic Laws 8/1991, of March 13, and 8/1999, of April 21, when access to the Presidency of the Island Council is given to all lists of councilors elected to the Island Institution, through their heads of lists, without being limited to the one that obtained the most votes, but only through two procedures of dismissal: the motion of censure by the former and its new regulation and the question of confidence by the latter.
The first of these reforms is justified by the law itself, in its explanatory memorandum, as a necessary adaptation to the parameters of articles 23 and 140 of the Constitution and for greater effectiveness of the institutions involved. The second, to avoid delaying situations that had been occurring, linking the question of confidence to specific projects. It tries with this figure to provide the Administration with an instrument that allows overcoming situations of rigidity or blockage in decision-making processes in specific and highly important matters.
With the amendment by Organic Law 8/1999 of art. 201.7, it begins to speak of the election of the President according to the system of art. 197 Bis, but expressly linked by this Law to specific and determined projects.
The aim is to form stable majorities. Hence, it limits the legal procedures and the occasions in which they can be used to form new majorities during each legislature, limiting the number of motions of censure to be signed by a councilor during his term of office, as well as the number of questions of confidence in each year, during the entire term or in the last year and, especially, the fact that, except for the motion of censure, which requires a "continuous majority", from its presentation to its debate and vote, for the rest, the proclamation and inauguration of the President must first take place and then the appropriate majorities must be formed.
Taking into account the direct system of election of the Presidents of Island Councils, the existing regulation in this regard in the aforementioned provisions and the electoral will itself, it can be affirmed that the most voted list, or rather, the councilors that make it up, retain their right to be able to access the Presidency when the legally established conditions are met, as a right protected by articles 23 and 140 of the Constitution, and is likewise lost through the legally established procedures.
Since the resigning President does not take with him the right to be replaced within his own list, except for the condition of head of the list for the next one on the same list, especially when he only has three councilors out of the twenty-three that make up the Corporation, since otherwise it would go against the precept that we have described as basic, it can be affirmed that the List of the Independent Party of Lanzarote (PIL) recovers the Presidency, as it becomes vacant due to the resignation of Mr. Francisco Cabrera García, of the Popular Party, who occupied it, as has been repeated, by virtue of a motion of censure against the head of the PIL list.
B.- Head of the most voted list.
The second problem that arises is determined by the presentation of a letter (June 6, 2005) from the previous President, Ms. María José Docal Serrano, stating her withdrawal of her resignation of February 17, 2005, considering that she continues to hold the status of head of the list of the Independent Party of Lanzarote in the Island Council.
After the presentation of a motion of censure dated February 11, 2005, against the then President, on the seventeenth of the same month she communicates her irrevocable resignation from the Presidency of the Island Council.
In the new letter, she maintains that, since the Plenary of the Corporation has not been informed of her resignation, she has not lost her status as head of the list of her party to the Cabildo de Lanzarote, although she has lost the Presidency with the motion of censure and her replacement by Mr. Cabrera García.
The analysis of this case leads us to several considerations.
a) Right inherent to the status of head of the list.
After the resignation from the Presidency of the Corporation by the first and second councilors on the list of the Independent Party of Lanzarote, Mr. Martín Martín and Mr. Hernández Rodríguez, respectively, Ms. María José Docal Serrano takes charge of it, in application of the Electoral Law and in use of a right protected by articles 23 and 140 of the Constitution and, precisely, because she is at that time number three and head of the list of her group, a "sine qua non condition" to access the Presidency.
b) Loss of the status of head of the list.
The presentation of the motion of censure on February 11, 2005, which gave the Presidency to Mr. Francisco Cabrera García, meant the loss of the same by Ms. Docal Serrano, and with it the loss of her status as head of the list, once she had already made use of her right, replacing Mr. Juan Pedro Hernández Rodríguez, a right that, for a later occasion, passes by operation of law to the next person on her list, in this case, number four, Ms. Inés Rojas de León, also protected by the Constitution to access said position; a right that was suspended with the presentation of the motion of censure against Ms. María José Docal Serrano and that now becomes effective again.
c) Position she occupies on her list for possible access to the Presidency.
As a consequence of the foregoing, the effects of the motion of censure and the exercise of a right inherent to the head of the most voted list, after the resignation of the two previous ones, she goes on to occupy the last number on her list for possible access to the Presidency of the Island Council.
In this regard, we can cite agreements of the Central Electoral Board of April 14, 1984, and November 13, 1992, to which we must add that of June 23, 2005, understanding, as Ley Documenta comments, that in the event of the resignation of the Mayor (considering it extensible to the Presidents of Island Councils) before the debate and vote on the motion of censure, it is understood that he resigns from being a candidate for Mayor (in this case President), moving to the last place on the list.
She does not lose her right to possible access to the Presidency, as she is on the most voted list, but she does lose her status as head of the list.
Ley Documenta also comments that from the agreements of the Central Electoral Board, specifically that of March 12, 1993, (also in response to a query made from this same Island Council and a real fact in the
Corporation, session of July 14, 1999), when the Presidency passes to the next list in number of votes, after the resignation of all the members of the most voted list, it follows that the resignation implies the loss of the status of head of the list.
d) Effects of Ms. Docal Serrano's resignation.
Although, in accordance with the provisions of article 60.4. of the Regulations for the Organization, Operation and Legal Regime of Local Entities, the resignation of the President will be made effective in writing before the Plenary of the Corporation, having been submitted on February 17, 2005, after the presentation of a motion of censure, on the 11th of the same month, it became irrelevant, without any effect on the position of President, once, in accordance with art. 197.3 of the General Electoral Law, as amended by Organic Law 8/1999, the subsequent resignation of the President will not suspend the processing and vote on the motion of censure.
In this sense, the Jurisprudence of the Supreme Court states, stating in this regard the 3rd Chamber, 4th Section of the Contentious-Administrative Jurisdiction, in a judgment of February 11, 1997, that the prior resignation is irrelevant, given the constructive nature of the motion: proclamation of the new mayor (in our case President), with two acts within the same, one of dismissal and another of proclamation.
e) Withdrawal of resignation.
This letter must be understood in the sense of not renouncing a possible right to access the Presidency that, as indicated above, she retains, but from the last position on her list, as long as the councilors preceding her on the same list do not resign. It is on February 23, 2005, when the motion of censure was debated and voted on, when she legally loses the Presidency and, with it, the resignation simultaneously becomes effective, without any effect, by virtue of the aforementioned Law 8/1999.
Once the suspension represented by the motion of censure against the President at that time has ended, with the resignation of Mr. Cabrera García, who accessed the same position through said motion, and given the circumstances that, had it not been presented, would have led to the Presidency of Ms. Inés Rojas de León, it must be considered that she recovers her right within her group, as there is no evidence that she has abandoned it. It must be clear that the right corresponds to the list and by extension to the councilors, according to the order they have within it.
C) Election system.
Reference has already been made in section A b) to the different system contemplated by the electoral legislation for Mayors and Presidents of Island Councils, as well as to the background of the basic precept.
In the current democratic state, it is with Organic Law 8/1999, when for the first time an election is mentioned to elect the President of the Island Council, but expressly linked by this Law to specific and determined cases through the question of confidence.
To justify the application of this system to the President of the Island Council, it has been stated that article 201.5 of the General Electoral Regime Law, regarding the fact that the first candidate on the most voted list shall be President, is applicable only at the beginning of the legislature, when the Corporation is constituted, as an immediate reflection of the result of the Elections.
If this consideration were admitted, once the councilor who held that position, Mr. Martín Martín, and the one who followed him on the same list, Mr. Hernández Rodríguez, resigned from the Presidency, the election system should have been used in the following proclamation.
D) Procedure.
Once Mr. Cabrera García's resignation from the Presidency has become effective, through the acknowledgment by the Plenary of the Corporation, in a session held on June 20, 2005, in accordance with the provisions of art. 60.5 of the Regulations for the Organization, Operation and Legal Regime of Local Entities, an extraordinary session will be convened by the Acting President, to be held within ten days following the acknowledgment by the Plenary of the Corporation. For this purpose, an Age Bureau will be constituted, made up of the oldest and youngest Councilors present at the event, with the Secretary of the Corporation acting as Secretary, art. 57.3 of the Regulations for the Organization, Operation and Legal Regime of Local Entities and 201.4 of Law 5/1985 of the General Electoral Regime.
IV.- CONCLUSIONS.
In view of the foregoing and as a summary, we conclude with the following considerations.
First.- Article 201.5 of Organic Law 5/1985, of June 19, of the General Electoral Regime, as a basic precept, without sufficient development but in a specific way, attributes the right to access the Presidency of the Island Council to the councilor who is head of the most voted list.
Since Mr. Cabrera García reached the Presidency through a motion of censure, one of the various means of control and supervision by the Plenary of the actions of the other governing bodies, in this case of the then President Ms. María José Docal Serrano, once the resignation has become effective and not dragging the status of the position he held to his list, that of the Popular Group, the legal electoral precept, which attributes the Presidency to the first candidate on the most voted list, comes back into practical effect.
Second.- Since the status of head of the most voted list is a "sine qua non condition" to occupy the Presidency of the Island Council, pursuant to article 201.5 of the General Electoral Law, it is essential to determine who meets this requirement at this time.
The following is specified:
* The resignation of the previous President, Ms. María José Docal Serrano, dated February 17, 2005, once a motion of censure had been presented against her on the 11th of the same month, is irrelevant, in accordance with the reform introduced in the General Electoral Law by Organic Law 8/1999 and Judgments, among others, that of the 3rd Chamber, 4th Section of the Contentious-Administrative Jurisdiction, of February 11, 1997.
* The withdrawal of the resignation is irrelevant, once she accessed the Presidency, on July 26, 2004, precisely because she was number three and head of the most voted list, making use at that time of that status and the right that assisted her by virtue thereof.
* The status of head of the list is lost simultaneously with the Presidency in the plenary session of February 23, 2005, when the motion of censure is debated and voted on, moving to the last place on the list of her group. Agreements of the Central Electoral Board of April 14 and November 13, 1992, to which must be added the most recent one of June 23, 2005.
* The status of head of the list of the Independent Group of Lanzarote in the Island Council, due to the resignation of numbers one and two and the loss by number three, is currently held by Ms. Inés Nieves Rojas de León, number four on the same list.
Third.- The General Electoral Law contemplates two different systems for Presidents of Island Councils and Mayors, proclamation and election, respectively.
It is with the reform introduced by Organic Law 8/1999, of April 21, when for the first time in the current democratic State a possible election of the President of the Island Council is mentioned, but expressly linked by the Law itself to specific and determined cases through the question of confidence.
Fourth.- Since Councilor Ms. Inés Nieves Rojas de León is number four on the most voted list in the last Local Elections, of the Independent Party of Lanzarote, according to the Proclamation Minutes of the Provincial Electoral Board, of June 6, 2003, and since there is no record in this General Secretariat that she has abandoned the group to which she belongs, we understand that in the current situation in this Island Council, with the existing background.
- The Presidency of this Island Corporation corresponds to and the inauguration of said position should be taken by Councilor MS. INES NIEVES ROJAS DE LEON.
This is the report of the General Secretariat, however, Y.H. will decide what is deemed appropriate.
Arrecife, June 25, 2005.
THE ACTING GENERAL SECRETARY.
Manuel Antonio Berriel Perdomo.
