Six members of the Constitutional Court (TC) – the majority – have confused the state of alarm with the state of exception. They have done so by considering unconstitutional the Decree of Declaration of a state of alarm of March 14, 2020, especially its article 7 (limitation of circulation to people and private vehicles).
When I write these initial reflections on the surprising sentence of the TC, I do not yet know its full text, but I do know its ruling. It is so clear that it is easy to guess its “legal basis”: the TC surely makes a disquisition on the difference between “limiting” and “suspending” rights, and understands that what has happened in this year and the last four months is that it has suspended the right to free movement, which is only possible in a state of emergency.
We could argue against this argument that the Decree of state of alarm of March 14, 2020 does not suspend free movement. In fact, it expressly allows it for various activities: working, buying food, assisting vulnerable people, traveling to financial institutions, and “any other activity of a similar nature” (art. 7.1). That is not “suspending” a right, but rather limiting it for very obvious reasons.
Organic Law 4/1981 on states of alarm, exception and site allows: “to limit the movement or permanence of people or vehicles at certain times and places or condition them to fulfill certain requirements” (art. 11.a). It is exactly what the Declaration of State of Alarm said.
This Organic Law is designed precisely for “health crises such as epidemics and serious contamination situations.” For this reason, in this case, the competent authority can adopt the measures that are foreseen “for the fight against infectious diseases” (art. 12.1).
These measures were regulated early through Organic Law 3/1986, which refers to “communicable diseases” that require immediate action – such as COVID 19-. For its control, it allows taking the actions “that are considered necessary in case of risk of a transferable nature” (art. Third). It is clear that the (not total) confinement that was ordered in the first months of the pandemic fits into this regulation.
One might wonder, given the ruling of the TC, which sees the state of alarm as a legal situation inapplicable to the case of COVID-19, what is the state of alarm for then? Why did the constituent legislator foresee it?
In reality, I would dare to say, not only the state of exception – designed to combat very serious events of alteration of “public order” – would not apply to the health crisis that has hit all countries, but even without state of alarm, health laws could have simply been used to fight the COVID-19 pandemic by limiting the free movement of people.
And that because, ultimately, what we had and have, before us is the contrast between the right to life and physical integrity and free movement. The right to life is what is really elucidated in this health crisis. Hence, various courts prohibited calls for demonstrations, putting the highest right of all: life.
To defend life in a pandemic that has wiped out more than three million people in the world, it was not necessary to declare a state of exception – of dark memory in the history of our country – and that allows the suspension of almost all freedoms.
The TC, with its ruling – inconsistent but binding – appealing to the state of exception, is declaring unconstitutional not only a declaration of a specific state of alarm, but the state of alarm itself as regulated in LO 4/1981. The Government and Parliament did nothing but apply that Law. The TC with its ruling, implicitly, has repealed its Chapter II, and, incidentally, has made article 116.2 of the Spanish Constitution, which regulates the state of alarm.