1. The Constitutional Court, by the minimum, split in half and with a part of its magistrates with the expired mandate, has decided to rule that the state of alarm approved by the Government during the hardest phase of the pandemic was illegal. Does that mean that the confinement measures that Spain, and the whole world, applied seem bad to you? No. The sentence does not enter into that. The debate was another, legal and not sanitary: if the state of alarm was the appropriate legal channel to approve the confinement or if the Government should have resorted to a tougher measure, the state of exception.
2. State of alarm or exception? Both options, to varying degrees, make it possible to limit or suspend fundamental rights during an emergency. There is also a third alternative, for even more serious situations: the state of siege. The three possibilities are collected in the Constitution and unfold in a organic law of 1981, which is still in force. It is a fairly clear law: it explains what it takes to pass each state and what can be done when they go into effect. And among the reasons for applying the alarm state (article 4b) there are “health crises, such as epidemics”. That is to say: a pandemic like the one we have not yet finished overcoming.
3. When the Government decreed the state of alarm to order the confinement against Covid-19, it was not, therefore, very imaginative in its interpretation. I insist: enough with read the law to see that the definition that best fit the current situation was the state of alarm: an “epidemic.” And not an alteration of public order of such magnitude that it would impede “the normal functioning of democratic institutions”, which is the requirement for a state of exception. In other words: the state of alarm is for epidemics. If it were a zombie epidemic that had caused a serious collapse of the State, theirs would have been the state of exception.
4. The powers allowed by the state of exception are almost like those of a dictatorship. The government can detain people or search homes without a warrant. You can ban strikes. You can tap any phone without permission from a judge. It can force citizens to abandon their residence and city, or expel foreigners from the country. You can seize weapons, or set up “armed posts” through the streets. You can close media.
5. They are powers so broad, so inordinate, that the Constitution establishes two important limitations for the state of exception. The first: that it only comes into force when it is approved by Parliament, as the Roman Republic did with its dictators. The second, and more important, that it can only last 30 days with a single extension of another 30. That is, a maximum of 60 days.
6. It is obvious, you do not have to be a great jurist, that what happened in March 2020 was much more like an “epidemic” than a collapse of democratic institutions. But the many jurists – and also the majority of the magistrates of the Constitutional Court – who argue that the Government was wrong by not declaring the state of emergency point to another issue. The law says that the state of alarm can “limit the movement of people.” But these jurists defend that what happened in Spain was something else: not a limitation of this and other fundamental rights, such as that of assembly, but their complete and absolute annulment.
7. At this point, the legal debate begins to resemble a theological discussion about the sex of angels. Was the confinement a total suspension of freedom of movement or a very severe limitation of that right? Were the exceptions, such as going out to shop or to work in many cases, proof that circulation was not suspended? What was the first; the egg or the chicken?
8. It is an exciting legal debate. And I understand the guaranteeing arguments of those who believe that the state of exception would have been essential to lock people up in their homes. Procedures are important. But, in practice, what the Constitutional Court raises is that the Government, in March 2020, with the pandemic triggered, had to have done something very different from what it did. 1. Prepare a proposal for a state of exception. 2. Take it to Parliament. 3. Give time for amendments and allegations. 4. Negotiate with the different parties to convince them to give Pedro Sánchez unprecedented powers in democracy. 5. Achieve 176 votes in favor in Congress. 6. Approve (a week, at the earliest) a confinement, but only for one month. 7. Approve the following month an extension in Parliament, for another 30 days. 8. Lift all restrictions after 60 days, at a time when in Spain more than a hundred people died every day.
9. It is quite evident what would have happened in Spain if the Government, in March 2020, had opted for the state of exception, and not that of alarm, as the Constitutional Court now tells it. Can you imagine the criticism from the opposition if the “social communist” government had asked Congress for such powers within three months of arriving? How to argue that a state of exception was necessary when the law literally speaks of “epidemics” for a state of alarm? How much time would have been lost in that parliamentary negotiation? How many people would have died from this delay? How many more victims would we have if the lockdown had been lifted early?
10. To add insult to injury, the government’s illegality in resorting to a state of alarm to stop the pandemic was committed with the help of the same party that, months later, appealed it to the Constitutional Court. I am referring to Vox, which not only voted in favor of the state of alarm but at that time criticized the Government for not having decreed it before. He was also backed by the PP, which now accuses the Sánchez government of breaking the law. With your vote, it is worth remembering.
11. Another of the arguments used by jurists who criticize the Government for not resorting to the state of exception is that of totalitarian risk. In short: that it is a bad precedent to allow a government to suspend fundamental rights, such as freedom of movement, without parliamentary control. It is only half true. The Government can decree the state of alarm unilaterally: it is a rapid mechanism, designed for emergencies, which comes into effect as soon as it is published in the BOE. But after a maximum of 15 days that decree has to pass through Parliament and achieve a majority in favor. The totalitarian risk, therefore, is a dictatorship lasting 15 days.
12. The Constitutional Court ruling places Spain in a very delicate position if another pandemic explodes again. Unlike most countries, the government could not resort to confinement for more than 60 days, and only after a few days or weeks of parliamentary processing. Faced with this, some jurists argue that, after 60 days, another state of exception could be approved. An obvious fraud of law, in my opinion. Because the limits that, precisely, establishes the Constitution would be skipped to the bullfighting.
13. Welcome to the guaranteed debates on fundamental rights. It is good for the Constitutional Court to make the rules clear for the next time, and also for Parliament to study whether the health laws that already exist are sufficient for the world in which we live today. But it is obvious that this sentence would not have happened with a PP government. Among other reasons, because I doubt that the left would have had the cynicism to denounce the unconstitutionality of a decree that it voted in favor.
14. If this Vox resource has prospered, it is, above all, for another reason: because anything goes against the coalition government.