Saturday, October 16

The second state of alarm was also unconstitutional




Antonio Narvaez, the magistrate rapporteur of what will be the second sentence of the Constitutional Court (TC) on the state of alarm decreed for six months by Pedro Sanchez, has already finalized its resolution, which will again assume a legal disavowal for the Government for its management of the pandemic. If in July the TC already ruled that the first imposition of the state of alarm was unconstitutional because its restrictive measures of essential freedoms should have been protected by the state of exception, and not by the state of alarm – and therefore were abusive -, in this case the Court will go even further.

Predictably, the TC will now accept two of the three main arguments presented by Vox in its appeal to denounce the discretion of some measures of La Moncloa that, according to the first sentence, were arbitrary. In the first place, it will be declared contrary to the law to have decreed an uninterrupted period of exceptionality in Spain for six months without a “Real and effective” parliamentary control of the Government, so that the TC will ‘knock down’ the bolt of Parliament sponsored by Sánchez. And secondly, the so-called ‘co-governance’ will also suffer notable marks of unconstitutionality for having improperly attributed to the autonomous communities various restrictive measures of fundamental freedoms that they were not supposed to adopt.

The second state of alarm was approved on November 3, 2020 given the severity of the pandemic, and unlike the previous one, Sánchez decreed it for six uninterrupted months. In contrast to the first state of alarm, imposed on March 14 of that same year, the President of the Government dispensed with the successive extensions that every fifteen days he had to ratify by a sufficient majority in the Congress of Deputies.. He didn’t want to risk losing votes.

No “real and effective” control

Thus, it continued uninterruptedly until May 9, 2021, when it declined. But in that period, Parliament remained practically closed, and the legal provisions for the Government to submit, for example, to control sessions, were breached without sufficient legal justification. There was only parliamentary activity as and when Pedro Sánchez wanted, in a political strategy that several opposition parties branded as “Kidnapping of Parliament.”

In this presentation, the TC will now rule that in order to comply with the requirement of supervision of the Government’s action during an exceptional period, such as such a long state of alarm, the occasional appearances that Sánchez made in Congress were not enough, or those others that he delegated to the then Minister of Health, Salvador Illa, and later to Carolina Darias.

Mass lockdowns

These appearances did not meet the minimum requirements for the real and effective control of the Executive that is required by legality in a rule of law, and there was no proportionality between the seriousness of an alarm decreed for half a year in a row and the parliamentary accountability of the president of the Government and its ministers. In addition, and in political, not legal, terms, Sánchez He did not even keep his word to appear on the dates and terms to which he had initially committed before public opinion.

The legal analysis that the speaker will make on the scope of the ‘co-governance’ decreed by the Government is also new. Thus, the TC foresees to consider unconstitutional the indiscriminate delegation to the communities of restrictive measures of freedoms –mass confinements, closures, or even curfews–, because they lack the powers to do so in our legal system. At least, in the coercive terms in which some communities adopted them.

In fact, in recent months, there have already been numerous resolutions from different Superior Courts of Justice – and at least one also from the Supreme Court – highly critical of ‘co-governance’ and of the lack of legal anchor to limit freedoms by mere delegation or government authorization. In short, the argument of the TC rapporteur will be based on the fact that the indiscriminate delegation to regional governments of powers that affect fundamental rights implies an openly unconstitutional disempowerment of the State.

Vox doesn’t win at everything

Instead, the TC plans to reject one of the arguments presented by Vox in its second appeal against the state of alarm. Just as with the March alarm, the Court considered that the restrictions were not a mere limitation of freedoms, but an illegal “suspension” that would only have been legally justified under a state of exception, now the TC assumes that the second state of alarm was not as drastic as the first. In fact, once what Sánchez called the “new normal”, there was no longer a ban or an absolute suspension of movements, as it did previously, but a catalog of more relaxed restrictions, which would be justified in accordance with the law. In this, the TC does not agree with Vox.

Similar majority of votes

As ABC has learned from sources in the Court, and in the absence of the debate in plenary, Judge Narváez has a sufficient majority of judges to carry out his presentation in the coming weeks. In the case of the first sentence, the vote – held in July in an atmosphere so convulsed and rarefied that it caused a severe crisis in the Court – was six judges against five. The division did not prevent that the essential part of the state of alarm was finally ‘knocked down’. In that vote, it was clear that the alleged court stopped working for a long time. ‘block logic’ or of magistrates obedient to the parties that appointed them. In fact, the fracture now overcomes the mere ideological division between conservatives and progressives, and the breakdown of internal trust among some judges already seems irreversible.

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