The majority of the plenary session ditch that the Government of Sánchez violated the law by evading parliamentary control and giving the autonomies powers that it should not
The Constitutional, again fractured almost in half, once again beat the Government for its management in the pandemic. The court (by 6 votes in favor and 4 against) has agreed to declare illegal the second state of national alarm over the health crisis (the one that lasted from October 25, 2020 to May 9, 2021). The court decides that the Executive of Pedro Sánchez violated the Magna Carta for using a ruse to bypass the periodic control of the parliamentarian of this exceptional regulation for months and for Moncloa’s decision to leave the application of the tools of this state of alarm, a transfer of powers that the Constitutional Court believes did not have any legal protection either.
The sentence that has refused to support the progressive minority of the Plenary with its votes is not only far from unanimity, but it will also have the opposite votes of the president himself (Juan José González Rivas), of Juan Antonio Xiol, of Cándido Conde-Pumpido and María Luisa Balagueren.
This ruling, in essence, concludes that Pedro Sánchez violated the law with an “unreasonable and unfounded” maneuver, which prevented the Executive from having to render accounts before the Congress of Deputies every fifteen days in order to extend the state of alarm. Something that it did with the first alarm during the first wave when the Government had to end up juggling parliamentary operations to achieve sufficient support in the final stretch of confinement.
“Undeniable”
The majority of the room has given its approval to the presentation presented by the conservative magistrate Antonio Narváez, in which the Government is reproached for approving a regulation that for six months caused Congress to “be deprived” of its “inalienable” power to control the measures of restriction of rights that were being applied. Some measures – the court recalls – that gave the authorities “exorbitant” powers over constitutional rights and freedoms. And all this without the legislature even being informed of their development because “the control regime that, in guarantee of the rights of all, corresponds to the Congress of Deputies was canceled.”
The court is especially harsh with the Government, which is ugly that that “six-month extension” to circumvent Parliament “was carried out in a way that was entirely inconsistent with the constitutional meaning that is proper to the act of authorization.” In other words, the Executive requested an authorization from the chamber to bypass the future mandatory authorizations of that same body.
The act itself that the resolution considers unconstitutional took place on October 29, 2021, when the Government obtained the endorsement of Parliament to extend the state of alarm until May 9 without going through Congress again with the support of 194 deputies from PSOE, United We Can, Citizens, More Country-Equo, Compromís, PNV, BNG, Canary Coalition, Nueva Canarias, the Regionalist Party of Cantabria, Teruel Existe and the four PDeCAT deputies; 53 votes against, those of Vox and the deputy of the Asturias Forum; and 99 abstentions from PP, the CUP and Unión del Pueblo Navarro.
The ruling ditch that the Government made an interpretation contrary to the spirit of the Magna Carta of Organic Law 4/1981 of the states of alarm, exception and siege. Article 6.2 of this regulation literally establishes that “the decree will determine the territorial scope, duration and effects of the state of alarm, which may not exceed fifteen days. It may only be extended with the express authorization of the Congress of Deputies, which in this case may establish the scope and conditions in force during the extension ”.
Confusing wording
Although the wording of this precept is confusing, the ruling maintains that hiding behind this convoluted wording to evade parliamentary control of such a severe restriction of fundamental rights for half a year is contrary to the Constitution. And this even though neither this nor the organic law expressly prohibits extending the state of alarm for a period much longer than fifteen days without going through Congress again.
The truth is that the only precedent in Spain of an extension of the state of alarm without parliamentary control was in 2010 during the crisis of the controllers. On that occasion, the Government had the approval of Congress to maintain the measure for a month without any constitutionality appeal being raised, so the court did not have to comment on this formula.
“Co-governance”
The other revolt for the Government in the ruling is the lack of legal coverage of the delegation made by the Government in the autonomous communities to apply the restrictions of rights within the so-called “co-governance.” The Organic Law 4/1981 does not contemplate that the central Executive can leave the application of the state of alarm in the hands of other authorities, so now the Constitutional Court considers it illegal for Moncloa to invest the autonomous governments with a power that does not allow it. granted by current legislation.
In addition, the resolution explains, “the Government agreed permanently to the delegation without any reservation of the effective supervision or the eventual certification to the Government itself, of what the delegated authorities could act in their respective territorial areas.”
The ruling especially reproaches Sánchez for extending a kind of ‘blank check’ to the communities, since the Government authorized the autonomies to carry out “measures limiting rights” but “without knowing what measures were going to be applied to combat the pandemic.
The court, although it rejects how this state of alarm was approved and managed, does endorse the measures that arose from it (such as curfews, perimeter closures or limitations in social gatherings) because it understands that they were adequate, necessary and appropriate decisions. provided to contain the second, third and fourth waves, since “the situation of serious alteration of normality caused by the coronavirus pandemic persisted.”
Today is the third judicial setback of the Court of guarantees to the Government in just over three months on account of some of the most important legal decisions during the pandemic. Last July, a Constitutional as fractured as it is now declared illegal the fundamental axis of the first state of alarm, home confinement, understanding that suspending rights such as free movement is something that Sánchez’s cabinet could only have done under the umbrella of the state of exception, the most severe of those foreseen in the Constitution and that would have required the prior permission of the Congress of Deputies.
And on October 5, the court ruled that the state of alarm, or any other declaration of exceptionality, cannot “interrupt the functioning of any of the constitutional powers of the State and, in particular, the Congress of Deputies” by This declared void the decision of the Lower House Board of March 19, 2020 to freeze the deadlines for the parliamentary initiatives that were being processed at that time because it was understood that the “fundamental right to political participation” was violated.
And as on those two previous occasions, now, on account of the second state of alarm, the origin is a resource from Vox, which once again wins the game over the Government in the Constitutional Court.
In the end, all the attempts by the president of the Constitutional Court have been in vain to avoid at all costs that the image of the court of guarantees fractured in half as happened last July was repeated. With the positions of both sides immovable, the sentencing speech by Magistrate Antonio Narváez, with a conservative affinity, has not managed to attract, far from it, unanimity.
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