According to a certain idealized and deeply erroneous image, while disagreement and controversy reign in politics, the legal system would draw a haven of light and clarity in which everything is firmly established according to immutable principles and rules. Faced with the gibberish of the political, the infallible stillness of the legal. If there were still defenders of this kind of stamp, I suppose that the pandemic will have taken ahead, along with tens of thousands of lives, the certainty that they could harbor in this regard.
Already in May of this year we were able to attend a first demonstration that, as regards its security and certainty, the legal is far from configuring something similar to a mathematical theorem. Once the validity of the state of alarm was exhausted, the Superior Courts of each autonomous community had to endorse, or not, the sanitary measures agreed by the different autonomous governments. The judicial discrepancy was so profound that it concerned, first, the very question of the possibility of such measures being taken. According to the Superior Court of Justice of Valencia, Law 3/1986 not only allowed the autonomous governments to adopt one or other measures, but, if it were not, such a law “would have no reason to exist or sense.” An interpretative forcefulness that did not convince their counterparts in the Basque Country, who considered that “our legal system does not allow the autonomous communities to agree, outside of the state of alarm, restrictive measures of fundamental rights of a general non-individualized nature”.
Of course, if there was not even an agreement when deciding whether or not the measures were legal, imagine when deciding which measures. There has been no court or judge that has not launched – with forcefulness and security worthy of a better cause – to establish nothing less than proportionality judgments between the health measures adopted and the foreseeable effects of the same in order to mitigate the pandemic. And so we have seen judges endorse the curfew and others prohibit it; judges establish the relevance of perimeter closures and deny others; some estimating the effectiveness of restricting meetings and others deciding, very seriously, that little hairs to the sea; and those from beyond, finally, calibrate the exact number – not one more, not one less – of diners that it is advisable to share a table on a terrace in order to avoid the spread of the virus.
The recent ruling of the Constitutional Court has only culminated this surprising drift. Not in relation to the content – we have not seen, yet, the members of the High Court involved in cheap epidemiologists, but, at the rate we are going, everything will go – but in terms of the complete legal uncertainty that the sentence itself comes to reflect. 6 vowels against 5. The individual votes also reveal completely different arguments not only in their conclusion, but above all in their own perspective, in their mere conception, if we wish. And, what is more significant, there is no clear ideological line. It is curious: ideology, although deplorable always when mixed with the legal, at least responds to a prior order, to a structure, to a certain interpretive stability. Not even that here. The word is gibberish, as it was in May with the different decisions of the Autonomous Courts. And, if the law can say everything, then clearly it says nothing.
A few months ago, a judge – I think from the Basque High Court, but I save myself the effort of searching the internet for who he was: what difference does it make – said something like epidemiologists were family doctors with an extra course. If that is the mentality on the part of the judiciary, it is no wonder what is happening. I don’t know what unprecedented love is pushing towards this state of affairs – only in Spain, it seems – but I at least have one thing clear: “public salu“does not mean, as many insist on translating,” public health “; it means”salvation public“.
It is doctors, scientists, health workers and health teams who are saving our lives. It is they – and the politicians we have elected – who lead this campaign of salvation and make the decisions they deem most appropriate. Of course they are limiting our rights: we do not have to be reminded by the courts, we know it and understand it from the first death. If there were an overwhelming, immaculate, stony and undisputed legal consensus, fine. But, as it is obvious that there is not, there is a very simple way out, which is perfectly legitimate from a legal point of view according to many interpretations, and which consists of letting the medical specialists do and not putting sticks in the hands. wheels. They respond to scientific evidence and to their vocation of service. Politicians answer to us every four years. Judges apply the law. So, if you don’t have it very, very, very clear and there are also people dying, leave it to them.