A magistrate of the Superior Court of Justice of the Basque Country affirmed in a radio talk show in February that epidemiologists were “general practitioners who have taken a little course.” A day later, he signed as a speaker a car ordering the reopening of bars in the municipalities of Euskadi on red alert. In the relaxed atmosphere of the gathering, he repeatedly confused correlation with causality when commenting on the relationship between restrictive measures and Covid incidence data. Rarely has so much power been in the hands of someone with such ignorance regarding something to make a decision about.
More recently, the Canary Islands High Court of Justice rejected the imposition of restrictions on bars and restaurants at the end of June on the grounds that “nor have they been shown as the causes of the problem contagion on the island of Tenerife, far from being the solutions to a situation that is not dramatic for the healthcare pressure. “There are numerous scientific reports that demonstrate the high incidence of contagion indoors and some carry the WHO mark The Canarian judges decided to ignore them and give greater importance to the economic damage that the hospitality industry was suffering. If the hospitals are not overwhelmed, it is time to fill the bars. What can go wrong?
Two weeks later, the incidence has skyrocketed throughout Spain, despite the excellent pace of the vaccination process. Already without a state of alarm in force, the autonomous governments seek to obtain judicial protection that allows them to take measures that seemed to be part of the past. The deterioration rules out in practice that foreign tourism will return en masse to Spain this summer.
The situation is once again not dramatic, but it is very worrying. Now we must also fear the future after the Constitutional Court (TC) has ruled that the confinement adopted in the first state of alarm was contrary to the Magna Carta. By a narrow majority, it has imposed the idea that the state of exception should have been applied, which allows for much more restriction of fundamental rights and that it must have the prior endorsement of Congress. Due to its severity, it can only be extended once and last for a total of sixty days.
Unfortunately, pandemics are not governed by the times dictated in this interpretation of the Constitution. The judges would need more than a “short course” to catch up on epidemiology. Two months after the start of the state of alarm in 2020, there were still 110 deaths a day in Spain. According to most members of the TC, the State would have been forced to abandon the legal coverage chosen to fight the pandemic and entrust itself to fate, which would have meant an even greater number of deaths.
The Popular Party voted in favor of the first three extensions of the state of alarm and then went to abstention and then to a negative vote. The pandemic continued its course while the PP was able to fill in all the available boxes. Pablo Casado presented the idea of ”a legal plan B” with an organic law that would allow solving the legal dilemma. “Spain urgently needs a legal framework to contain contagions. We have been asking for it for more than a year, “said the PP leader on Thursday. He is convinced that this would be the appropriate solution to” limit the mobility “of people and to do so within the Constitution.
His party presented a bill with that intention a few months ago. Edmundo Bal, spokesman for Ciudadanos, said that this law would not have lasted the Constitutional Court “not five minutes.” This week’s sentence seems to confirm it, although the five-minute thing is a bit exaggerated. The CT usually moves with the speed of an asthmatic tortoise.
In the legal community, there was an intense debate in the media on account of the commitment to the state of alarm or the state of exception as the best legal solution. What is striking is that critics of the government’s decision complained about it for “putting an all-encompassing power in the hands of the Prime Minister.” That contrasts with the reality that Sánchez went through, forced to negotiate with parties as different as Ciudadanos or Bildu to carry out the renovations.
The heated Spanish political debate and the fact that the government parties do not have an absolute majority in Congress make it seem somewhat hyperbolic to describe Sánchez’s power as omnimous or absolute. Of course, in the permanent state of turmoil in which the right moves – from what can be deduced from the usual statements of Casado or Díaz Ayuso – democracy in Spain is always on the verge of perishing.
Undoubtedly, a state of exception gives much more power to the government, so much so that it has never been adopted in democracy. As Luis López Guerra, who was vice president of the Constitutional Court, highlighted, the state of exception “would have meant a more serious restriction of fundamental rights. “It seems obvious and it turns out that there are venerable law professors who think otherwise. As if someone would later say that the ideological polarization has not reached the world of justice.
In France, the Government took the declaration of a state of emergency to Parliament, with powers similar to the Spanish state of alarm, in March 2020, which was lifted in July when the number of infections decreased. In October, the same was approved again with the start of the second wave, then extended until February 2021 and then until June. Finally, it was extended until September, but in such a way as to gradually lift the restrictions. For example, curfews had a deadline of June 30.
This flexibility is what has been lacking in Spain. Everything here is black or white. Faced with a scenario such as that of mid-March 2020, without any public order crisis in the streets, with a runaway pandemic, also seeing what had happened in Italy, even arriving late to the essential confinement measures, the Constitutional Court maintains Now that the processing in Congress of a request for a state of exception should have begun with all the time necessary to process amendments, negotiate them and finally approve them in the legislature.
They could also have sent copies of the Constitution to hospitals to comfort medical personnel as the sick died.