Friday, December 3

The discrepant magistrates of the TC defend the state of alarm to protect health


The magistrate Juan José González Rivas, new president of the Constitutional Court.

The magistrate Juan José González Rivas, new president of the Constitutional Court.

The five magistrates who remained in a minority in the Constitutional Court when voting on the sentence that declared unconstitutional the confinement decreed by the Government of Pedro Sánchez in the first state of alarm decided to vote each one, as their arguments and tone were so different. in which they express their discrepancy. Candido Conde-Pumpido it is the one that uses the hardest when comparing his colleagues with “courtroom lawyers” that leaves the Executive without arms to fight against the pandemic.

For his part, the president of the court, Juan Jose Gonzalez Rivas, seeks to defend the need to act as the Government did without losing respect for the rest of the members of the plenary at any time. “In the judgment of the majority it is established,” says González Rivas, “and I have no objection to joining that approach, that The state of alarm enables the Government to agree to restrictions on fundamental rights that are greater in intensity than those that are admissible in an ordinary situation.. In other words, in the state of alarm, the essential content of the fundamental right must continue to operate as an insurmountable frontier, unlike the common regime of interference in fundamental rights. ”

The discrepancy is that their opinion the article of the Constitution that protects freedom of movement “is formally suspended and therefore has not entirely lost its validityTherefore, the public power of the state of alarm cannot limit it in an unlimited way. Establish to what extent, and according to what constitutional parameters, the validity of Article 19 CE conditions the limitations on freedom of movement that the public power may adopt for the benefit of other legal rights worthy of protection, such as public health or the right to freedom of movement. life, is what, in my opinion, the Court is not enough to do in this sentence, “he explains.

Proportionality

For his part, the conservatively sensitive judge Andrés Ollero explains that “the majority of the court has been inclined to defend the need for the Government to have declared a state of exception, upon detecting the violation of the essential content of some fundamental rights, by have produced an effective suspension of the same, which the state of exception makes possible, but would go beyond what is constitutionally admissible after the declaration of a state of alarm “. But in his opinion, the border between the two states, “like any legal activity,” he states, involves “an interpretative dimension, which in this case implies the entry into play of an inevitable proportionality judgment.”

“Reality has shown that a pandemic can affect certain facets of constitutional rights holders more intensely than a possible coup or the invasion of armored divisions. Given my age, I have been able to experience various states of exception. Due to my Sevillian condition, I remember well that in none of them was the possible popular experience of Holy Week endangered; as in other latitudes, equivalent manifestations were not endangered as an expression of the cultural identity of the area, all of them unintelligible without the entry into action of a considerable noise “, he argues.


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