Wednesday, August 4

Anticonstitutionality announced and incomprehensible

From the chronicles of almost all the media, it could be anticipated that the decision of the Constitutional Court on the appeal of unconstitutionality filed by Vox against the declaration of the state of alarm by the Government and the ratification and parliamentary renewal of the same by Congress of the Deputies, it was going to be an estimate of the resource.

So it has been. On July 14, the TC issued a note in which it reported the decision reached, although the legal grounds for said decision had not yet been made public. The comment of the news I do with this limitation.

The reason why the TC has estimated the appeal is clear: to impose the confinement that entailed the declaration of the state of alarm in the terms in which the Government agreed and the Congress of Deputies confirmed and renewed, it had to have been declared the state of exception. The state of alarm provided in the Constitution and developed by law in LO 4/1981 does not allow the suspension of rights that were imposed with its declaration. For this, the declaration of the state of exception is necessary.

I do not know, as I have already said, the legal basis for the decision, but whatever it is, it has to be absurd. A brief reading of article 13 of LO 4/1981, which defines the state of exception, is enough to understand why this is the case. The article says verbatim:

“When the free exercise of the rights and freedoms of citizens, the normal functioning of democratic institutions, essential services for the community, or any other aspect of public order, are so seriously altered that the exercise of ordinary powers was insufficient to restore and maintain it … “, the procedure for the declaration of the state of exception may be initiated.

This is the de facto budget for the declaration of the state of emergency. Without such a budget, it is not possible to resort to this instrument of extraordinary protection of the State.

I do not believe that there is a single citizen who fits what happened in the month of March 2020 in Spain in the description of the de facto budget that appears in article 13 of LO 4/1981. In those days, demonstrations were held, such as the one on March 8, or rallies, such as the one held by Vox and in which Santiago Abascal was infected. There was no scenario in any part of the country in which rights could not be exercised or public powers could not exercise their functions. There was, in short, no crisis of public order, which required the state of emergency as a response.

Yes, there was a health crisis caused by Covid-19, which is one of the assumptions in fact that are contemplated in LO 4/1981, for the definition of the state of alarm (art. 4, b).

But it is not only the literal diction of article 13 of LO 4/1981 that prevents the state of emergency from being used to combat Covid-19. There is much more.

The alarm state is extremely flexible and can be used very quickly. The state of exception, on the other hand, is extremely rigid and its implementation is much slower. The Government has to prepare a very detailed draft decree declaring the state of emergency and submit it to the Congress of Deputies, so that it may study it, introduce or not the modifications it deems appropriate and approve it by an absolute majority. Only from that moment could the Government make it effective. I do not think it is necessary to remind the reader of the importance of time and speed in making decisions to prevent the spread of the virus. Is it reasonable to think that this was the response that the constituent and the legislator who developed article 116 of the Constitution had for an emergency such as the one generated by Covid-19?

But there is still more. The state of alarm, when it is governmental, lasts 15 days, but, when it is parliamentary, it can be declared indefinitely. It would be perfectly constitutional for the Congress of Deputies to approve a state of alarm with an indefinite duration until the emergency situation is overcome.

The state of exception, on the contrary, can only be declared for thirty days and can only be renewed for another thirty days. The maximum duration of the state of emergency is 60 days. Was it reasonable to think in March 2020 that in 60 days the health emergency would have ended and no additional measures would be necessary?

Even more. In the preliminary title of the Civil Code, which is an outpost of the Constitution, the minimum Constitution for a constitutional State to operate, even if it is not yet democratic, which was the situation in Spain at the end of the 19th century and the first decades of the 20th. , but which continues to make sense after the entry into force of the Constitution of Democracy, an interpretative mandate of the legal norms is imposed in article 3.1, which reads as follows: “The norms will be interpreted according to the proper meaning of their words, in relation with the context, the historical and legislative antecedents and the social reality of the time in which they have to be applied, taking into account fundamentally the spirit and purpose of those “.

Is there anyone in their right mind who can interpret articles 4 and following and 13 and following of LO 4/1981 in “times of Covid” in the way that the TC has done? Can anyone in their right mind think that a situation of exponential growth in infections, hospitalizations, admissions to intensive care units and deaths should be responded to with an instrument as heavy and not very ductile as is the state of exception? Can anyone really think that this was the spirit and purpose of the constituent and the legislator by including the state of alarm and the state of exception in the way they did in our legal system?

The TC’s decision is simply incomprehensible in legal terms.

Perhaps it is very bad thought, but I have the impression that the majority of magistrates who have handed down this sentence have tried to send a double message:

One first to Vox, encouraging them to resort in the future: you are welcome, even when you file a crazy appeal. The field that you have open.

Another second to the Government: lose all hope.



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