Thursday, August 5

“Doctrinal speculations” of the Constitutional Court?

The country is in turmoil – and no wonder – with the ruling that the Constitutional Court has issued, according to its press release of July 14, on Royal Decree 463/2020, of March 14, which declared the state of alarm for the health crisis of COVID-19.

Note that, as is well known, the operative part of the sentence advances, which, in essence, partially upholds the appeal for unconstitutionality filed against said norm by the VOX Deputies and declares unconstitutional and null, with some certain effects, sections 1, 3 and 5 of its article 7 and the terms ” modify, apply or ” of section 6 of its article 10 in the wording given by Royal Decree 465/2020.

It is at least shocking that the still officially unknown – and once again known by leaking the supposed text of the sentence to some media – the TC’s reasoning is described, from the outset, as “doctrinal speculations”, as has done the Minister of Defense – and a surplus magistrate of the Supreme Court – Mrs. Robles. I do not know exactly what he meant, but in any case, it is incomprehensible the use of these terms to refer both to such a relevant sentence and to the very interesting and essential debates – yes, doctrinal ones – that have taken place since March 2020 in around the question. And this, because, according to the Dictionary of the RAE, “to speculate” is to elaborate a complicated digression and with the appearance of depth, to imagine without much foundation or to work on works of ingenuity. And honestly, it is not what the TC has done.

Indeed, I do not think that the TC rambles or imagines without foundation, at least not in a special way or different from how it generally acts, whatever the meaning of its resolutions. And it only responds to a very relevant question that has been raised.

It is true that the Government and the Legislature – like citizens in general – found themselves in a very complicated situation in March 2020. It is true that measures had to be taken to prevent the spread of the virus and its extremely serious consequences, as claimed by the WHO and as other countries around us were already doing. It cannot be denied that the measures adopted have contributed to preventing more deaths than the many that have already occurred, without it being possible to know whether more could still have been avoided or whether the same result could have been achieved in another way. Anyway, everything was very difficult in those initial moments – and it still is, as we see every day. But, nevertheless, this was not the question to which the TC had to answer, it was not the legal debate raised, but rather whether the tool decided by the Government – and endorsed by Congress, included by VOX in the first extension – was constitutionally adequate or not.

As I have said, from the outset, there were constitutionalists – in the minority – who understood that the declaration of the state of alarm, with the content of the Royal Decree in question, was not legally clever, considering that the harshest measures adopted in it they entailed a general suspension and not just a limitation or restriction of such rights, a suspension that is only allowed by declaring a state of exception. It is true that the majority of constitutionalists defended the correction of the norm, considering, essentially, that the state of exception is reserved for situations that, in short, can be expressed as serious disturbance of public order – understood in the broad sense of the Article 13 of LO 4 / 1981–, which would not be the case, as the state of alarm is expressly foreseen for health crises such as epidemics. Debate – or “elucubration” – which, according to some news, is the core of what is also raised within the Government on the appropriate instrument to adopt the restrictive measures referred to. This is a question on which the TC ruling widely reasons, which would have understood that the restriction of rights was “of the highest intensity” and that this only fits within the state of exception, as well as that the circumstances that existed at that time were typical of a serious disturbance of public order in the sense of disturbance of normal activities. Question on which, undoubtedly, will also reason the private opinions that we will soon know in the necessary detail.

In short, a legal debate of interest, but that, beyond the specific content and final decision of this sentence, raises other interesting reflections in line with everything that happened.

The first generates enormous modesty even when writing it and, due to its seriousness, it deserves a particular and detailed analysis. This is the complaint made in the plenary session of the TC by its vice president, Ms. Roca, about pressure received from the vice president of the Government, Ms. Calvo. Is this really bearable? Isn’t the government going to give an explanation in this regard? It is clear that this is a very serious complaint whose scope we must know without delay.

Second, the legitimacy of the TC ruling, regardless of the result of the internal vote and the opinion and legitimate criticism that we deserve after reading it. Questioning this or attributing the sentence only to the six members who supported the decision, as Justice Minister Llop has repeatedly done, means opening a serious gap in the constitutional system. Consider that the opposite result of this debate would also have been adopted, predictably, by a similar majority, as occurs on many occasions in very momentous resolutions.

Another is the need to affirm the legitimacy of VOX or any other political group, fulfilling the constitutional legitimation requirements, to raise doubts of constitutionality about any norm. You should not try to avoid or avoid certain legal debates, quite the contrary; It is a matter of assuming them naturally and in the conviction that these “stress tests” to which the constitutional system is sometimes subjected will be passed through –and only– legal reason, even if it is not “our” reason.

Reason that, indeed, without a doubt, is generated as a function of the correlation of forces and ideas in a court, so the appointment of its members and their specific composition must be removed from any controversy, which is not exactly the situation. This is due to various reasons, including the political blockade on its renewal, which continues to raise doubts about its “authority.”

Also noteworthy is the long period of time that the TC has needed to resolve the issue. Undoubtedly, it would have been desirable for it to have done so much more promptly, but it does not seem to be the way this Court works, which unnecessarily and dangerously distances its decisions from the contested rules or judicial decisions, which is why, on many occasions , do not generate the intended and due effects. And, in addition, the consolidation of many situations that could later be declared contrary to the Constitution and / or infringing of fundamental rights and public freedoms. Although it is no longer surprising in a Court in which, to give an example of the utmost seriousness, taking into account the fundamental right concerned, an appeal of unconstitutionality against the so-called “Abortion Law” has been pending for more than 10 years. , in a clear and regrettable example of his lack of legal courage to issue the appropriate resolution.

In any case, this ruling will also provide the opportunity to reflect on the proper development of article 116 of the Constitution and the health legislation, in order to find the necessary balance between the duty to face a very serious epidemic situation and the maximum guarantee of our rights and freedoms.



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