The pandemic has not only affected the health and economy of citizens. The world of Law has seen how the dangerous cracks that already appeared in some of its foundations have grown, placing various values and basic principles of our constitutional model in a position of very worrying weakness. Although many of these problems had been detected before the fatal virus entered our lives, the truth is that this health crisis has worsened the “health” of our legal system, which deserves to receive the proper attention of a unit of intensive care if we do not want it to end up swelling the list of chronic patients, irreversible sequelae or death of many of its rules and basic theories. The principles and rules most affected include the following:
1.- Legal security: Proclaimed in article 9.3 of our Spanish Constitution and defined by our Constitutional Court as the sum of “certainty and legality”. In its judgment 46/1990, literally, the High Court referred to this principle as the obligation of the Public Powers to “pursue clarity and not normative confusion”, imposing for this that, regarding the matter on which it is legislated , legal operators and citizens know what to expect, “avoiding objectively confusing situations.” In short, promote and seek certainty regarding which are the applicable regulations, and avoid introducing confusion and perplexity regarding the predictability of which is the applicable law and which are the legal consequences of its application.
This principle already suffered from a worrying poor health but, as a result of the regulatory ´ ”tsunami” produced by the coronavirus crisis (with the almost weekly variation of the applicable measures, the dispersion of competences, the absence of norms that regulated this situation well and the policy of putting in the hands of the magistrates of the Superior Courts of Justice of each autonomy the capacity to authorize or not according to what measures), we are about to certify the death of such an important rule.
2.- The regulation and affectation of the rights and freedoms of citizens: We have gone from demanding organic laws (which require a qualified majority to regulate the essential aspects of fundamental rights), as well as reserving the aspects related to our public freedoms to the norms with the force of law, to that a mere Minister of Health of An Autonomous Community has in its hands, by the formula of a simple resolution, the ability to limit one of the basic aspects of constitutional models.
It should be remembered that Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters, so used in these times by the Autonomous Governments to try to weather the storm caused by this pandemic, was devised and designed to adopt measures for the “control of the sick”, as well as “of the people who are or have been in contact with them, and the immediate environment”. That is, for identified and specific groups of people, not to limit and affect the entire population in general since, in the latter case, it is appropriate to apply the legislation of the States of alarm, exception and siege. However, Law 3/2020, of September 18, modified Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction, granting the Administrative Litigation Chambers of the Superior Courts of Justice the competence to endorse (or not) the measures that the regional health authorities consider urgent and necessary for public health, and imply the limitation or restriction of fundamental rights when their recipients are not individually identified (that is, a different assumption, in my opinion, to that contemplated in the Organic Law 3/1986).
The full weight of the legal empowerment of the implementation of restrictive measures by the Executives of the Autonomous Communities is falling on this latest regulatory modification, but said reform is pending a ruling on its constitutionality, because there is a matter of unconstitutionality raised by the Contentious-Administrative Chamber of the Superior Court of Justice of Aragon that has already been admitted for processing by the Constitutional Court, so it would not be ruled out that, in the future, we find a sentence that decrees the nullity and the unconstitutionality of this entire legal shed. This has already happened with the two sentences that declared the unconstitutionality of a good part of the two states of alarm decreed in 2020. Therefore, we may be basing the legal strategy to fight the pandemic on rules that are contrary to our Constitution and to the type of state model that we want to be.
3.- Parliamentary weakness: We are supposed to be a parliamentary system, in which Parliament should be the nerve center of the exercise of power and the main normative institution. Nobody disputes that today the Government has stolen said prominence from the Legislative Chambers. The fast-track regulation of the Decree Law and the endemic inability of parliamentarians not to succumb to the orders and disciplines of their respective parties have turned the Legislative Assemblies into caricatures of what they should be. Politics, understood as dealing and marketing of interests (in the sense of supporting certain votes in exchange for satisfying other demands that have nothing to do with the matter on which it is legislating), together with debates in which the offense and the empty headline completely replace rigorous analysis, make Parliament a broken instrument and, therefore, useless for the high purposes entrusted to it, and the Government the main organ of our system.
In my opinion, it is urgent to treat these pathologies promptly and reliably. Otherwise, our legal model will end up languishing until it becomes a sick and unrecoverable system.
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Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.