The latest proof that the state of alarm should not have been lifted since the first time it was declared has been provided this week by the letter that the Lehendakari Urkullu has sent to the President of the Government requesting that he reimpose the mandatory nature of the mask and even make certain decisions to restrict mobility.
This letter should not have needed to be sent. Since March 2020, Spain is materially in a state of alarm. The number of infected has fluctuated in these 18 months, as has also the number of hospitalized and admitted to intensive care units, but the emergency caused by Covid-19 has not ceased to be present at any time. Consequently, the instrument provided in our legislation to deal with emergencies of this nature should have been active without interruption.
The declaration of the state of alarm has a temporary limitation of 15 days for the Government, but it does not have it when it is the Congress of Deputies that makes the decision. The Constitution allows the Congress of Deputies to declare a state of alarm indefinitely. It is perfectly possible to make the duration of the state of alarm depend on the evolution of the pandemic.
Among other things, because the state of alarm does not have to impose limitations or restrictions on the rights of citizens, nor why oblige the public powers to take certain measures in this regard. The state of alarm can extend to the entire territory of the State and the President of the Government can be its manager. But it does not have to be extended to the entire territory of the State and the Prime Minister does not necessarily have to be the Manager. It can be extended to the entire territory of the State, but management can be delegated to the presidents of the Autonomous Communities or it can even be extended to part of the territory with delegation of management to the president of the Autonomous Community affected by the declaration.
The declaration of the state of alarm is a kind of umbrella that provides coverage to the authorities so that they can adopt the measures deemed necessary. These measures can be some in Asturias and others in Extremadura. The authorities open the umbrella when they consider it necessary and close it when the rain has stopped. The declaration of the state of alarm does not oblige anything, but it does enable to do what is considered necessary according to the intensity of the emergency.
Since March 2020 the state of alarm should have been operational throughout the territory of the State with the management delegated to the presidents of the Autonomous Communities. It would be they who, according to the evolution of the pandemic in their community, would adopt the pertinent measures, which, furthermore, do not have to be the same throughout the territory of the Community. Those of Antequera would not have to be the same as those of Jerez de la Frontera.
How are the rights of citizens or the normal functioning of public powers affected by the fact that the state of alarm is activated? Not at all, as long as the spread of the virus does not require action. And to a greater or lesser extent, depending on the speed of its propagation.
The Lehendakari Urkullu, instead of sending a letter to the President of the Government, should have been able to send the Official Gazette of the Basque Country the norm that he deemed appropriate with the appropriate measures to face the spread of the virus in his community. With the state of alarm in force there would not have been the slightest problem to be able to do so, without having to be aware of what the Superior Court of Justice of the Basque Country might say or not say.
If any citizen disagrees with the measure adopted by the Lehendakari, they could challenge it before the Administrative Litigation Chamber of the Superior Court of Justice of the Basque Country, since LO 4/1981, which regulates states of alarm, exception and siege , expressly provides that during the validity of such states, control by the judiciary of the acts of the public powers is maintained.
The lehendakari would not need the authorization of the judiciary to take the measure he deems pertinent, but said measure would be subject to appeal to the judiciary.
We have created absurd problems for ourselves just at the time when we should have focused all our energy on fighting the virus. I am afraid, furthermore, that we have not learned what we should have learned, and that, if it interferes, we will stumble again on the same stone.