The Romans had it clearer a couple of millennia ago than we do today: “The health of the people, or public health, is the supreme law.” This is how the first principle of Roman public law read, as can be read in Cicero’s De Legibus. Certainly, they were much clearer than the Constitutional Court, whose latest ruling on the alleged unconstitutionality of the state of alarm applied to the control of the pandemic shows that, in addition to its marked politicization, the high court is more concerned with Byzantine discussions about sex. of the angels than for the measures that must be put in place when the greatest pandemic in recent decades threatens society and devastates the lives of thousands of people.
As Oriol Farrés, professor of Philosophy at the Autonomous University of Barcelona points out, there is a genealogy between health and solidarity based on this maxim of Roman law. This places health as a common good that sometimes has to be above the safeguarding of some individual freedoms, especially in a health emergency such as the COVID-19 pandemic that we are going through, for the sake of health and well-being of the community.
There is no doubt, as numerous international epidemiological and public health studies show, that had the draconian measures of confinement and mobility limitation not adopted, the so-called “non-pharmacological measures”, many thousands of additional deaths would have occurred. to the more than eighty thousand that we have had in Spain. Excess mortality would have been much higher. If the state of alarm had not been chosen, we would be regretting not having done it and we would have had to say goodbye to many more family and friends than those who painfully had to do so and not only for the direct cause of COVID-19 but also for the total collapse that would have been suffered in the health system that would have had a huge impact on mortality from other pathologies that could not have been treated normally, with a much greater intensity than we had to suffer despite confinement. The world already exceeds four million deaths from COVID-19, a number of deaths typical of a conflagration of global proportions, and if many places had not acted with the forcefulness necessary to stop transmission, we would be facing a figure that would exceed the ten million deaths
Unfortunately, that does not seem to be the mood or the way to understand the legal systems that govern us, or a large part of the judicial apparatus that applies it. For many judges and courts, the individual freedoms defined in a selfish way seem to matter much more, above the common good and the collective responsibilities and guarantees. The individualistic approach prevails over the principles of social justice and collective health. And this is extremely worrying because it calls into question the common good and the actions necessary to achieve it. Ultimately, it is an ideologization of justice that torpedoes public health and the social effort to maintain it. It is not possible to accept that “the freedom to infect and infect others must prevail over the duty to protect ourselves and others”. A ruling of the importance of this, which is presented from a Constitutional Court practically divided into two halves, contributes little to the legal security that our society needs.
To this are added the limitations and shortcomings of an Autonomous State where many territorial elites seem more attentive to the defense at all costs of their parcels of power than to the interests of the State as a whole. This order of things is clearly insufficient to face problems that transcend regional and national borders and have a high degree of territorial interdependence, such as a pandemic.
There is no doubt that Spain needs to be more modern and effective in shaping its State, and in co-governance mechanisms (health and other public policies). Advances should be made in the federalization of institutions, avoiding systematic confrontation, nominalist debates, and the continuous judicialization of political conflicts and the politicization of issues that, such as the current pandemic, should be addressed, mainly, with scientific and health criteria. public. If, as the Constitutional Court itself points out in its ruling, “the suitability of the sanitary measures adopted under the state of alarm is not questioned,” and if the state of alarm itself was endorsed in Congress and was maintained only while it had that I endorse, then what is in question? This is a very pertinent question that should lead us to reject any approach that from a political point of view wants to question the correctness of the decision to confine based on the Constitutional ruling.
On the other hand, it is inconceivable that at a time when the new wave of infections and the high incidence throughout the country, concentrated in young people, which requires restrictive measures such as curfews, perimeter closures or the reestablishment of the mandatory use of the mask in high incidence areas, do not opt for a coordinated action based on agreed parameters. That is, that everything is left to the discretion of each Autonomous Community, and within them depends on the will (Valencia, Cantabria and Catalonia) or the lack of it (Aragon and the Canary Islands) of the Superior Courts of Justice to validate the sanitary measures that it is urgent to put into practice.
The last thing that is needed is a tug of war in which the decisions of judges, Autonomous Superior Courts of Justice, the Supreme Court and the Constitutional Court reverse sanitary measures that have an epidemiological foundation and solid bases of public health that judges do not have. ability to evaluate. Judges can and should determine if something is illegal but they cannot and should not decide whether the sanitary measures adopted are proportionate and technically relevant. They neither have the training to do so nor should that be their role.
The pandemic has also shown the need for a comprehensive review of the legal system on public health to ensure that, regardless of whether there is a declaration of a state of alarm or a state of emergency is decreed, the tools are available to guarantee the protection of the health of all citizens without having to embark on Kafkaesque labyrinths of inappropriate prosecutions.
The Public Health Law of 2011 needs to be deepened and perfected. It must be taken to its last consequences and integrated into it the elements that make it possible to shield the necessary resources and institutionalize the elements of a co-governance in matters of public health that will lead us to a federal model of horizontal cooperation between Autonomous Communities, orchestrated by the Government of the State and in which there is territorial unity for major public health issues. The support of a State Public Health Agency is clearly urgent and essential.
Subsequently, it would be pertinent to make the necessary adjustments to the instruments available to the regional legal systems, taking into account the lessons learned during the COVID-19 pandemic and the dimensions of the health crises that give rise to emergency situations.
It would be appropriate to reflect more accurately what happens in the management of a health emergency, strengthening the exercise of health authority within the scope of regional powers in the matter and linking these health actions with extra-health actions that are subject to other areas of authority and that benefit from endorsement by governments as a whole
This has implications both with regard to the definition of what a health crisis is, and with regard to the multisectorality of the measures that must be taken to deal with it (and that transcend the health field), as well as in what refers to the necessary mechanisms to enable the promptness and enforceability of the response to be given to challenges of this nature
In our opinion, the declaration of emergency caused by a health crisis should be the responsibility of the Council of Ministers in the entire territory or in a part of it (one or more Autonomous Communities), at the proposal of the Ministry with competences in matters of health. Without prejudice to the necessary subsequent validation of that declaration by Parliament.
In any case, the Health Authorities, led by the Ministry of Health, must increase their capacity for action to respond to crisis situations. This implies reinforcing, in a very short time, the existing infrastructure, rationalizing health care at its different levels, from primary care and out-of-hospital emergency services, to hospitals and ICUs; set up ad-hoc devices to expand health care capacity (medicalized reception centers and field hospitals as a strategic care reserve) and recruit health and social health personnel to temporarily reinforce the operation of the system.
Regarding public health measures that go beyond purely sanitary actions and that are the responsibility of other sectors of the administration, the endorsement of the Council of Ministers and the Governing Councils of the Autonomous Communities is important. In this regard, the most important thing in crisis situations is that health measures are clearly delegated competence in the Health Authority and that they do not need ratification since the implementation of the measures without delay is essential in those situations that, in a way imminent, threaten people’s health and lives.
As we are seeing, an emergency caused by a health crisis can extend beyond the period of a declaration of “state of alarm” or “state of exception” at the national or regional level. The successive states of alarm have ended, but the ongoing pandemic and the health crisis continue and require health and non-health measures that require legal support to stop transmission regardless of whether we advance in the vaccination process.
For example, we know that it has been very important to take measures to mitigate the negative effects of the pandemic on the economy of people and companies and on the social life of citizens, but that the important thing has been to prioritize health protection of people, trying to damage the economy, work activity, commercial exchange and the circulation of goods and people as little as possible, without compromising health security.
In sum, what should prevail as the rationale behind a modification to the Public Health Law is to establish the legal framework that confers the greatest legitimacy to the multisectoral public effort to reduce exposure to health risks and control the transmission of infectious agents , to prepare as much as possible the health infrastructure to respond adequately, to carry out the sanitary and extra-sanitary measures of public health to contain the health problem that originates the health crisis, with the greatest firmness and comprehensiveness possible and to facilitate the full convergence of extra-sanitary public health actions that must be applied to mitigate the impact of the emergency.
It would be necessary to start preparing these modifications to the Public Health Law as soon as possible. If we don’t, if we don’t learn this lesson from the pandemic, we will have thrown away a great opportunity not to make the same mistakes again.