Of the five individual votes that accompany the ruling of the Constitutional Court declaring unconstitutional the confinement of the first state of alarm, the judge’s state of alarm was yet to be known. Juan Antonio Xiol that was not notified along with the rest. In it he reproaches that the “failure, to be taken to its last terms, would produce seriously disruptive effects in the application of the measures that will have to be taken in the future to try to limit the effects of the pandemic “and may generate uncertainty when making decisions in new situations por lThe consequences of an error. Maintains that the sentence is confusing regarding the effects that supposes his decision, that has implied the annulment of the fines imposed for going out.
His is the longest vote, with 36 pages, compared to 16 in the final version of Cándido Conde-Pumpido and those of the rest of the dissenters who did not reach ten. In them it states that “the logic of our system of control of the constitutionality of laws implies, as the case law of the Supreme Court has invariably accepted, the power of the Constitutional Court to limit the effects of declarations of unconstitutionality in matters of patrimonial responsibility of the Legislative state when it is necessary to preserve constitutional values ”.
Xiol affirms that “there are constitutional values that justify this effect limitation, at least with regard to the (annulled) sections 1, 3 and 5 of article 7 “of the decree of the state of alarm, because with the confinement” they were adopted measures that tried to prevent the spread of covid in order to safeguard the life and health of the population that she was seriously threatened by this disease. ”
As the debate shows
Along with the pandemic “there was a situation of legal uncertainty,” Xiol explains. “The situation created was unprecedented in our constitutional history and there was no certainty about what the legal channel should be that should be followed to impose these measures (good proof of this is the intense debate that has arisen among jurists about whether the state of alarm was adequate to establish them or it was necessary to agree on the state of exception) “, he recalls.
“Faced with this situation of uncertainty pIt may be considered constitutionally justified that the nullity does not affect the acts or legal situations created under the rule declared unconstitutional.“, he explains and complains that the sentence does not express”with more clarity and greater correction its scope“.
“The opposite could cause the health authorities in situations of uncertainty not to adopt the measures they consider most appropriate due to the consequences that the error could have in choosing the correct legal route. In these cases, the right to life and health justify that the court declares the limitation of the effects of the nullity with respect to the past, that is, that it grants the sentence only “certain” effects, which would entail that, since the rule of validity due to expiration is lacking, the declaration of unconstitutionality had no other effect than to allow the review of the sanctioning acts issued under its protection, although they have become firm “.
In his opinion, this is what derives from the modulation of the effects of the declaration of unconstitutionality made by the sentence, “although to arrive at it” it uses reasoning “that makes it difficult to understand the scope of the ruling and is based” on a a way that the magistrate considers “incorrect”.
It maintains that “the Constitutional Court should have specified with more clarity and correction the scope of the judgment and the reasons that justify the limitation of effects“, because” if something should be clear in a sentence, it is the scope of the ruling. Otherwise, legal uncertainty is created, which may lead to increased litigation and conflicting court rulings“He adds. Fines imposed for skipping confinement have already begun to be lifted.
Being more extensive, Xiol allows himself to review the constituent debates until reaching the conclusion that the exceptional states were due to different reasons and “the suspension of these rights and not of others highlights that the alteration of public order that justifies the adoption of the A state of exception cannot refer, as the majority maintain, to any serious alteration of normality that affects the functioning of the institutions, but can only refer to alterations that affect public safety, that is, to situations in which there are serious public disorders that prevent peaceful coexistence “.
In case there is any doubt, he also denies that although the declaration of the state of exception requires the prior authorization of Congress, this requirement guarantees that the measures established are more generous with freedom, because, precisely under its protection, measures that entail the temporary deprivation of the effectiveness of constitutional norms that guarantee fundamental rights and freedoms. In other words, “it will always be more restrictive of freedom than the limitations of fundamental rights that may be established by virtue of the state of alarm, since these limitations, no matter how intense, do not temporarily deprive the constitutional norm that guarantees it. ” In addition, the alarm allows citizens to know in advance the rights that are affected.
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.