Monday, June 27

Legal void at the end of the alarm



The Government is condemning the country to experience the pandemic in extreme legal situations. Since March 14, 2020, Spain has been in a state of alarm for longer than in a normal situation. The extraordinary state has also been added restrictions of more than dubious constitutionality to the exercise of fundamental rights and public freedoms. In fact, the vast majority of fines imposed for violation of time or territory confinements are being annulled by the contentious-administrative courts. All that remains is for the Constitutional Court to rule on the constitutionality of the states of alarm decreed by the Government, although it will do so when the current state ceases to be from next day 9. Arriving late, as the TC does, is like not arriving.

From this extreme, it is going to move to a legal vacuum that is inappropriate for a country as hit by the pandemic as Spain. The Government is portrayed between indolence and incompetence by once again endorsing the autonomous communities with a responsibility that does not correspond to them in its entirety, neither constitutionally nor politically. Pedro Sánchez has trivialized the limitations on the rights of citizens, has degraded respect for the hierarchy of the Constitution, is altering the functionality of the central Executive and the autonomies in the management of the national interest, and has already forced the courts to assume a ‘judicial co-governance’ that does not correspond to them either. The chaos became clear yesterday when the Basque high court annulled some curfews that judges do allow in the Valencian Community or in the Balearic Islands. The Supreme Court already has a document from its technical cabinet that questions the legality and effectiveness of the new appeal against the decisions of the autonomous higher courts in health matters. Even the Attorney General’s Office doubts that regional governments can establish curfews without a state of alarm. And yesterday, the Madrid Bar Association predicted that the end of the alarm opens a new period of legal uncertainty. Confusion is guaranteed.

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It is evident that the alarm state was exhausted after being applied to saturation. But the lack of an alternative plan after its repeal shows that Sánchez maintained the exception out of inertia or to cover the file and be able to say that he was making decisions. If it is so necessary to exhaust the maximum period of the state of alarm, the coherent thing would be an orderly and homogeneous transition from the ‘de-escalated’. What is going to happen is that after the alarm the ‘co-governance’ will blow up, since the Interterritorial Health Council will lose all meaning and each regional government will dedicate itself to taking care of its population. It’s not coherent.

Sánchez is on the run with the management of the pandemic, confident of occasionally releasing a rally about how well vaccination is going. This is the agenda of a Government that has created two shields: that of the autonomous governments and that of the judges. The cost is the distortion of the constitutional roles that each power has assigned for the exercise of its functions. We are thus pushed to uncertainty, territorial inequality and grievances between citizens for not wanting to give the autonomies a common normative framework in the essential and flexible in the peculiar. And this happens when a vaccination plan is underway, in its critical process, that has to go faster.

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