The Government of the Canary Islands has since Monday the ability to require the population to complete the vaccination schedule or a negative COVID-19 test to work. Article 14 of the new decree law, which brings together all the measures of the Executive to combat the pandemic, enables the Ministry of Health to decide in the future in which public and private work areas it will be necessary to show the vaccination certificate or a diagnostic test. This controversial epigraph has, according to the professor of Constitutional Law at the University of La Laguna Gerardo Pérez, “many open fronts”. First, it could “violate and regulate” some fundamental rights. On the other, Pérez argues that the regional Executive “is not competent” to apply this restriction, which would correspond to the Government of Spain.
The Canary Islands Government opens the door to require the vaccination certificate or a negative test to work if the health situation worsens
Health sources have clarified that the article only gives the Ministry the power to demand these requirements “in certain areas that will be defined in the future.” “It does not mean that in the Canary Islands you cannot work right now without the certificate,” they point out from the Blas Trujillo area.
Gerardo Pérez insists that a decree law “cannot regulate” the fundamental rights of the people included in Title I of the Spanish Constitution. Privacy and physical integrity are, according to the professor, some of the rights that could be compromised by this article of the decree law.
On the contrary, the senator of the PSOE and professor of Constitutional Law Santiago Pérez values that the Canarian Government has had “good judgment” to be “at the height of its responsibilities.” “To issue a decree law on this matter and in this circumstance is more justified than ever,” emphasizes the politician. The figure of the decree-law, according to Pérez, was created to be used in emergency circumstances such as the current one. “The Executive does not intend to establish a regulation of fundamental rights or change the legal system, but rather to apply specific restrictions for an emergency situation in which the rights to life and health are at stake,” he defends.
The regional spokesperson for Judges and Judges for Democracy, Mariano López, points out that the problem does not arise now, with the wording of article 14 of the decree-law that the Government of the Canary Islands intends to validate in the regional Parliament, since it is a faculty that the Ministry of Health reserves in function of the evolution of the epidemiological situation, but with its concrete application, with the decisions that are adopted on the basis of that norm. “For example, if the Doctor Negrín Hospital decides that all its workers have to be vaccinated or have a negative test to be able to work.”
López recalls that the debate on the obligation to present the vaccination certificate or a negative test in the active infection tests is present throughout Europe. In France, for example, the health authorities have required workers in certain fields of work last week to present this documentation in order to work. “The legal path it may have is yet to be seen. There is a controversy between individual rights, not to reveal that I am vaccinated or that I am sick, and groups, to be in a safe environment free of COVID,” he explains.
“It would be necessary to be on the specific case, depending on the situation. It is not the same that there is a new variant circulating, much more transmissible, than a decrease in cases,” he adds.
The judicial battles of the Government of the Canary Islands
This decree, being a norm with the force of law, “can only be challenged before the Constitutional Court by direct means,” explains Santiago Pérez. The set of actors that can resort to this route is very small: the Government of Spain, the Ombudsman, 50 deputies and 50 senators. However, the measures of this law that require administrative actions can be challenged in the Superior Court of Justice of the Canary Islands, which can present a question of unconstitutionality. The latter is the indirect way to appeal to the Constitutional Court and challenge a law.
The spokesman for the Association of Judges and Judges for Democracy considers it “unlikely” that the Government of Spain would go to the Constitutional Court because it considers that the Canarian Executive has invaded any of its own powers.
The second option, according to Mariano López, would be in the hands of any individual who decides to challenge specific aspects of the regulatory regulations of the autonomous community because they consider their rights violated, as has happened recently, for example, with restrictions on mobility at night. . In this case, López points out, the resolution would correspond to the Superior Court of Justice of the Canary Islands (TSJC), without prejudice to the fact that all avenues may be exhausted and ultimately go under the protection of the Constitutional Court.
In the event of an appeal, “the last word would be the Superior Court of Justice of the Canary Islands”, affirms the representative of the judicial association, which specifies that, by affecting fundamental rights (to privacy, for example), such measures Yes, they had to be endorsed by the courts, they had to have the prior authorization of the TSJC, which would have to assess the proportionality of the measure adopted.
The consequences of refusing to take a test or to be vaccinated to work are also included in this decree law. The denial of consent will be collected in writing and, in addition, “will entail the impossibility of carrying out the work or activity to which the performance of the diagnostic test was conditioned”, as well as, where appropriate, the possibility of imposing restrictions or personalized obligations in the terms provided by this decree law. This same precept will be applied to the effects of the vaccination requirement.
If a court overturned the article after its application, the affected people could demand reparation for the damages they may have suffered, points out the professor of Constitutional Law. “That already happened with the home confinement of the state of alarm. When it was declared that it was against the Spanish Constitution, the fines and economic sanctions were annulled,” Perez recalls.
The Government of the Canary Islands has already fought other legal struggles in relation to measures against COVID-19. In May of this year, the TSJC overturned the curfew that the regional government tried to implement in Tenerife after the state of alarm ended. This court also rejected the perimeter closure of the islands that were at levels 3 and 4 of health alert. The Government of Ángel Víctor Torres appealed to the Supreme Court, which ratified the ruling of the TSJC.
In July, this court suspended as a precautionary measure the measure approved by the Canarian Government to demand a vaccination certificate from citizens to be able to enter theaters, cinemas and hospitality establishments on those islands at level 4 of health alert. The TSJC justified this decision by claiming that the requesting party provided “data from the Ministry of Health that show a non-substantial worsening of the situation, with mere numbers of infections and a certain rise in hospital pressure, which does not even reach levels similar to those that justified the State of Alarm and the exceptional measures limiting fundamental rights. ”