The Constitutional Court generated an earthquake last week by accepting part of the Vox appeal and declaring unconstitutional the precepts of the first state of alarm that imposed home confinement to combat the pandemic in March 2020. The aftershocks have been experienced this Monday, with the complete publication of the sentence and the particular votes of the critical magistrates. After a discussion that split the court in two, the magistrate who tipped the balance to cancel the state of alarm was its vice president, Encarna Roca.
The discrepant magistrates of the Constitutional Court say that the state of alarm prevented “the massive contagion of a deadly disease”
A pioneer and breaker of the glass ceiling for women in academia and the judiciary, Roca, born in Barcelona in 1944, has become, despite herself, the protagonist of the court’s resounding decision. In some political circles her position has been surprising, given that Roca first came to the Supreme Court and the Constitutional Court later as a judge considered progressive, and with the approval of the PSC. Not in vain had Roca been a member, at the end of the 90s, of Catalunya Segle XXI, a foundation created at the initiative of Pasqual Maragall and which brought together left-wing personalities close to the then former mayor of Barcelona and future president.
By then, Roca was already a renowned expert in Civil Law, especially family and Catalan civil law, but also in matters of biotechnology and law. She was the first woman of several institutions: the first professor of Civil Law at the University of Barcelona (UB) in 1978, the first woman to be a member of the Acadèmia de Jurisprudència i Legislació de Catalunya in 1980, the first magistrate in the Civil Chamber of the Supreme Court in 2005, and the first woman who was part, since the Second Republic, of the Royal Academy of Jurisprudence and Legislation of Spain as Academic of Number in 2011. Her speech was based on the theme of “Freedom and family.”
“I did not think it was a merit to have been the first woman to obtain the position of associate professor in 1978, later transformed into a chair, but today many consider that it was,” said Roca after being awarded the Pelayo prize for recognized jurists prestige in 2018, in a speech in which she also gave an account of her character traits: “I am bothered by praise. I was educated to always keep in mind that the first thing to do is to do your duty. I have never felt like a Joan of Arc and those who have dealt with me can attest to it. ”
And the notary Alfons López Tena, a member of the CGPJ at the time for CiU, attests to this and who was the one who proposed Roca as a magistrate of the Civil Chamber of the Supreme Court. López Tena says that he had only met Roca in a few Civil Law seminars, but that she was his first candidate due to her prestige, experience, and ability to work.
“His appointment to the Supreme Court not only did not have the endorsement of Artur Mas, Josep Antoni Duran i Lleida and Núria de Gispert, but the proposal did not seem good to them because they considered it close to the socialists. There were many calls because they had suggested to me to other candidates “, recalls the notary, who underlines Roca’s role in” unblocking “the Civil Chamber of the High Court, which at that time accumulated a considerable delay in the resolution of appeals.
After seven years in the Supreme Court, in 2012 Roca was appointed a magistrate of the Constitutional Court. “Then the convergents rectified and tried to present her as their candidate for the Constitutional Court”, highlights López Tena. His name had already been proposed to the court of guarantees four years earlier by the Parliament with the votes of CiU, PSC and PP, but finally it was the Socialists, under the leadership of Alfredo Pérez Rubalcaba, who saw Roca as a good candidate to replace to another Catalan and progressive magistrate, Eugeni Gay. Since 2017 she has been the vice president of the Constitutional Court, although today she is one of its four robes with the expired mandate.
The arrival of Roca to the Constitutional Court coincided with the increase in the role of the court in the sovereign process. Roca has been part of the majority of magistrates who have endorsed the judicial case of the procés. The same has not happened with another Barcelona magistrate and progressive court, Juan Antonio Xiol, who together with Magistrate María Luisa Balaguer has signed the critical votes with the Supreme Court ruling with which the pardoned prisoners they hope to win a victory at the European Court of Human Rights (ECHR) in Strasbourg.
His legal positions to stop the process have raised blisters in part of the academy. In 2014, the cloister of the University of Girona (UdG) voted in favor of maintaining the title of doctor ‘honoris causa’ to Roca after a proposal to withdraw the distinction due to the suspension of the consultation on November 9.
On the other hand, this magistrate was with the progressive minority in defense of the freedom of expression of the trade unionist who called to burn a flag of Spain or of the young people who burned a photo of the king in Girona. He also made a private vote against the condemnation of the young people who surrounded the Parliament of Catalonia in 2011 for violation of their fundamental rights. But he turned to the conservative majority, against the opinion of his progressive colleagues, to endorse the condemnation of some activists who broke into a church to ask for “free and free abortion” and to agree with the Catholic University of Valencia (UCV ) in its intention to obtain a full equalization to public campuses in access to scholarships.
“The sun of freedom has never been comfortable, Siegfried,” Roca said in 2018 after receiving the Pelayo award. A lover of classical music and Wagner’s operas, among the Barcelonan high school students Roca is remembered as one of the jurists who contributed an opinion on the complex transfer of the theater of the former owners, prominent men of Barcelona, to the consortium of public administrations that has managed it since its fire in 1994. Almost thirty years later, the sentence of the state of alarm has caused a legal-political fire that in no way detracts from the Wagnerian burning of the Walhalla that closes The sunset of the gods.