Wednesday, December 8

The Council of State unanimously supported the six months of state of alarm that is now being questioned by the Constitutional Court | Spain

The President of the Government, Pedro Sánchez, intervenes during a control session to the Executive in Congress to report on the management of the pandemic, in October 2020.
The President of the Government, Pedro Sánchez, intervenes during a control session to the Executive in Congress to report on the management of the pandemic, in October 2020.Chema Moya / EFE

The Government is not resigned to the cancellation of the second state of alarm, which the Constitutional Court will address next week and legal sources almost take it for granted. The court gave the reason to Vox in July declaring unconstitutional, in a very controversial vote and that was resolved by the minimum, the confinement in the first wave of the covid (from March to June 2020), and decided that it should have been regulated under a state of exception and not of alarm. This time, the debate within the Constitutional Court is focused especially on two aspects: the Government’s decision to extend the state of alarm for six months to avoid having to submit to the votes of successive extensions in Congress and the delegation of powers to the communities autonomous. Neither the Council of State nor the State Lawyers’ Office questioned any of these premises in the opinions they prepared after examining the Royal Decree of the Government on which the Constitutional Court is now deliberating. This court also plans to address the decision of the Board of Congress to reduce its activity in the first weeks of the pandemic, a decision contested by Vox and defended by the Chamber’s legal cabinet in the allegations sent to the Constitutional Court.

The Council of State approved on October 25, 2020 the opinion in which it endorsed the second state of alarm, for which a six-month extension was granted. “The regime of eventual restriction of the right that the draft norm establishes is in accordance with the requirements of constitutional jurisprudence, as it is oriented towards the protection of the physical integrity and health of people (…) and is also configured as a measure necessary for the achievement of the aim pursued by the regulation, which is none other than to prevent the spread of a serious contagious disease ”, he points out. The advisory body endorsed both the duration and the delegation of powers to manage the health crisis in the presidents of the autonomous communities, appealed by Vox and on which the Constitutional Court must pronounce. The Council of State framed this formula in “a framework of co-governance” and considered it valid. It did recommend that the Government “clarify” the wording of the articles that specified what powers corresponded to the communities and suggested the incorporation of a paragraph that establishes that the Interterritorial Health Council would set the health indicators that would determine the adoption of measures by the Communities. The final text approved by the Government included it.

The opinion was approved unanimously by the Permanent Commission of the Council of State, then made up of the president of the body, María Teresa Fernández de la Vega, and seven councilors: one of the fathers of the Constitution, Miguel Herrero and Rodríguez de Miñón; the former president of the Constitutional Court Miguel Rodríguez Piñero; former Supreme Court magistrates Fernando Ledesma and José Luis Manzanares; the one who was director of the cabinet of President Adolfo Suárez and head of the Casa del Rey; the professor of Philosophy Victoria Camps; and the jurist Enrique Alonso.

The opinion of the advisory body considers that the draft of the royal decree by which the second state of alarm was declared “conforms to the requirements of constitutional jurisprudence, as it is aimed at protecting the physical integrity and health of people” . It was, according to the State Council, “a necessary measure” to prevent the spread of covid-19. The highest advisory body of the Government reviewed one by one the articles of the text that it considered most controversial and, in this review, did not address any reproach either at the six-month duration or at the delegation of powers to the autonomous communities, the two precepts in those who focus the doubts of the Constitutional.

The royal decree did not include the date on which the second state of alarm definitively expired (May 9, 2021) because that was agreed in a subsequent royal decree, but in the preamble it did include as it was “essential to extend this rule by an estimated period of six months ”. The opinion of the Council of State does not question this decision, which, at that time, was only “an estimate”. “The mention that is contained in the preamble, regarding the need to extend the declaration of the state of alarm for six months, constitutes a mere estimate of the consulting authority, made in view of the current circumstances, which lacks normative value some, ”he says.

Ideal legal umbrella

Without discussing the duration or the co-governance, the advisory body opinion defends throughout the 17 pages that the state of alarm is the ideal legal umbrella to combat a pandemic such as that of covid. This precept, recalls the report, “is specifically indicated to face ‘serious alterations to normality’ and, within them, to ‘health crises, such as epidemics and serious contamination situations” and is “the mildest” of the three contemplated by law, alluding to states of emergency and siege. “For the declaration of the state of exception, therefore, a ‘serious alteration’ of the ‘normality’ is not enough, as in the state of alarm, being necessary that there be a ‘serious alteration’ of the ‘public order’ of the constitutional state and , in particular, the free exercise of the rights and freedoms of citizens or the normal functioning of democratic institutions or essential public services that serve as its foundation, ”the opinion emphasizes. “As long as there is no ‘serious alteration of the democratic public order’ – as it is conspicuously absent in the epidemic caused by the coronavirus – recourse to the state of emergency in epidemic situations lacks an enabling constitutional budget and, consequently, the necessary measures adopted to combat it must be articulated through the state of alarm ”, he concludes.

The arguments of the Council of State coincide with those defended by the Constitutional magistrates’ bloc who, last July, supported the state of alarm, against the thesis that was the majority (the final decision was taken by six to five votes). The body recalls that, under the protection of the declaration of the state of alarm, the Government can take “restrictive or limiting measures of fundamental rights”, but not agree to their suspension. Based on this express constitutional provision, it is necessary to conclude that none of the measures contemplated by Organic Law 4/1981 in the state of alarm nor, in particular, that of “limiting the movement or permanence of people or vehicles at certain times and places , or conditioning them to meet certain requirements “(Article 11.a), entails a suspension of fundamental rights and public freedoms,” says the text.

The support of the Legal Profession

The royal decree by which the second state of alarm was approved also had a previous report from the State Bar, which also considered the text “adjusted to the Law” and he remarked that the Government offered “the necessary justifications to adequately and sufficiently motivate both the origin of the declaration of the state of alarm” given the context – Spain was facing the second wave – “and the concrete adoption of the measures.” Regarding the decision of the Executive to empower the regional presidents as competent delegated authorities, the Lawyers consider it “perfectly logical and accommodated” to the Organic Law 4/1981 of the states of alarm, exception and siege. The legal endorsement of this decision is blunt: “Each autonomous territory may be affected unevenly and changing by the health crisis, the appropriate way to guarantee scrupulous observance of this requirement is by delegating specific decisions relating to the measures that the declaration of the state of alarm will entail ”. The autonomous communities, including those of the PP, claimed to participate in the management of the health emergency during the first state of alarm. Complaints about the end of the second state of alarm, and with it the legal umbrella that allowed limiting a series of rights such as circulation, were also a constant, including the popular barons.

Organic Law 4/1981 stipulates in its seventh article that “for the purposes of the state of alarm, the competent authority will be the Government or, by delegation of it, the president of the autonomous community when the declaration exclusively affects all or part of the territory of a community ”. The Legal Profession points out that “although it does not strictly comply” with the aforementioned article, “it is not in any way contrary to what is legally established and is instead a logical consequence of an interpretation of the legality adjusted to the social reality of the time in which it has to be applied ”. The Legal Profession insists that although the second state of alarm “reaches the entire national territory” it was, “at the same time, a state of alarm that admits modulations and adaptations” depending on the incidence of the health crisis “in each autonomous territory ”.

Parliamentary control

The Constitutional Court must also position itself on the parliamentary control of the Government in the second state of alarm, as reported by Vox in its appeal and maintains the PP, whose justice spokesman, Enrique López, affirmed on Tuesday that the Government tried to avoid the control of the Congress because the President of the Government “bothered to go every 15 days” to the Lower House. The rapporteur for the appeal in the Constitutional Court, the conservative sector magistrate Antonio Narváez, maintains that the Executive avoided this duty, despite the appearances of Pedro Sánchez and the two ministers who have managed the pandemic, Salvador Illa and Carolina Darias. Illa appeared on November 26 and December 10, and her successor did so on five other occasions in the following months. In turn, the President of the Government appeared three times and the Executive answered more than 2,500 oral and written questions about the pandemic.

Parliamentary control is also elucidated in the appeal presented by Vox at the close of Congress in March and April 2020, which the Constitutional Court plans to deliberate next week. Government and legal sources consulted highlight the contradictions of Vox for this resource, since the deputy spokesperson in Congress, Macarena Olona, ​​sent on March 10 – the first state of alarm was decreed four days later – a letter to the president of Parliament , Meritxell Batet, in which he informed him that “in logical coherence and responsibility” all the deputies of his formation would adopt, “as an essential precaution”, to continue with their parliamentary work from their homes “during the essential period, until the authorities health authorities determine that there is no risk of returning to Congress. ” “We urge you to suspend all the plenary and committee activities scheduled for this week and until such time as we are certain that we can carry out our activity in Congress without any risk to health,” concluded Olona.

The suspension of parliamentary activity between March 14 and April 13 was agreed by the Bureau of Congress. The lawyer of the General Courts signs the allegations sent by the Chamber to the Constitutional Court and emphasizes that the measure was taken under the declaration of the first state of alarm, which imposed home confinement for the entire population. “The scope of the declaration of the exceptional state, in this case, the state of alarm, reaches the Chambers and the Government without a doubt, in the same way that the law approved by Parliament obliges it,” says the text. And he adds: “There is no exception to the application of the exception that makes the purpose of the measures prevail, in this case seriously compromised public health, a continuity in identical terms with the activity of the constitutional body that occurred before the declaration of the state ”.

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