Sunday, December 5

The TC is inclined to declare unconstitutional also the second state of alarm

TC headquarters in Madrid.

TC headquarters in Madrid.

The Constitutional Court (TC) it will foreseeably declare unconstitutional the second state of alarm decreed by the Government of Pedro Sánchez in 2020 to face the Covid-19 pandemic, so it would attend, even partially, the appeal presented by the Vox political party, according to the newspaper ‘ABC’.

As this newspaper explains, the magistrate who presented this judgment, Antonio Narváez, has finished his resolution and in it he would welcome two of the three main arguments of the Santiago Abascal party against that second period of state of alarm that began on October 25 2020 and spanned six months. If so, this would be a new setback for the Executive that already in July saw how the court of guarantees declared the unconstitutionality of some aspects of the first state of alarm.

In this unconstitutionality appeal, Vox argued that the second alarm violates articles 17, 19, 21 and 25 of the Constitution, relating to the rights to freedom and security; to free movement; to peaceful assembly and demonstration; and against administrative sanctions that directly or subsidiarily imply deprivation of liberty.

Vox denounced as unconstitutional the decision of the President of the Government, Pedro Sánchez, to appear only every two months before the Plenary of the Chamber to account for its evolution. That would be one of the aspects that the rapporteur would accept in his resolution given that the Executive had a lack of parliamentary control.

In this presentation, the TC will foreseeably rule that in order to comply with the constitutional requirement of the Executive’s control during that six-month period, the occasional appearances that Sánchez made in Congress were not enough, and neither were those that he delegated to the former Minister of Health. Salvador Illa, and later Carolina Darias.

The second aspect that this resolution would reflect has to do with the appointment of the regional presidents as delegated authority, known as co-governance. In Vox’s opinion this generated “a true state of bewilderment and chaos“That led to a situation of” legal uncertainty “for citizens. Although the next plenary session of the TC will take place next week, the agenda is unknown at the moment.

The Plenary of the Constitutional Court in July partially upheld the unconstitutionality appeal filed by Vox against the royal decree by which the Government declared the first state of alarm, which entered into force on March 14, 2020. With a majority of 6 to 5 magistrates, the court of guarantees declared the confinement unconstitutional, that is, the limitation of the circulation of people and vehicles in public spaces and roads established by the norm, as well as the capacity of the Ministry of Health to modify and expand the containment measures in commercial activity.

The resolution went ahead by a narrow majority and the president Juan José González Rivas and the judges Andrés Ollero, Juan Antonio Xiol, Cándido Conde-Pumpido and María Luisa Balaguer formulated individual votes. Decisive in the vote was the vice president of the court, Encarnación Roca, who favored the unconstitutionality of the decree-law issued by the Government.

Specifically, the court of guarantees declared unconstitutional and null points 1 and 3 of article 7 of the decree-law, relative to the freedom of movement of people and cars in public spaces and roads; as well as point 5 of the same article, which allowed the Ministry of the Interior to agree to close the circulation of roads or sections for public health reasons.

It also declared unconstitutional that the Ministry of Health be empowered to “modify” or “expand” the containment measures in the field of commercial activity, cultural facilities and recreational activities, as well as hotel and restaurant activities.

“In everything else”, the court agreed to dismiss the unconstitutionality appeal presented by the formation led by Santiago Abascal. From Vox they insisted that the decree included restrictions on certain public freedoms that would not be contemplated for this type of state in the Constitution, since – in their opinion – they would only fit in the formula of the state of exception.

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