The Constitutional ruling against the decree that allowed the confinement has caused alarm even among its supporters, surprised above all by the strong reactions that the resolution has generated. And for critics of the ruling, due to the difficulties it may create in the future, in situations that lead to serious restrictions on fundamental rights, as has happened with the pandemic. Those who believe that a solution has been sought for a non-existent problem fear that the declaration of a state of emergency is neither the appropriate response to combat a health emergency nor does it provide greater legal certainty, but quite the opposite.
“In the future,” says Enoch Albertí, professor of constitutional law at the University of Barcelona, ”it will be much more difficult to manage health crises, since to establish severe limitations on freedom of movement or assembly, when necessary and justified by the situation, the state of exception must be decreed, which constitutes a measure with a strong political cost and an authoritarian aftertaste, and which has never been decreed in Spain since the transition. The management of this situation is much more complicated and its effects much more dangerous than the state of alarm ”.
Araceli Mangas, professor of international law at the Complutense of Madrid, expresses her opinion on a very different wavelength, for whom “the determining factor” to choose in a given situation between states of alarm or exception is “the scope or impact it has on fundamental rights ”one option or another. “The Government,” he adds, “had a duty to protect the population and it did so, but its choice of well-intentioned management was not based on the appropriate norm.” They are “admissible errors that must be cleared by a court of guarantees,” he says.
For Javier García Roca, professor of constitutional law, also at the Complutense, the error is in the sentence: “The state of alarm allows an ‘intense restriction’ of rights, as long as the limitations are necessary and respect the principle of proportionality ”. That the population had to be confined, no one has argued. Thus, the essential thing for García Roca is to be clear that this was not suspending fundamental rights, such as free movement, but only limiting them. “If there is proportionality control and judicial review, there is no suspension.”
This last point is especially important. During the confinement, the police kicked the door in a flat in which they presumed that an illegal party was taking place. Now, those officials are charged with that irruption. Under the state of exception they would not be, because for what they did, no judicial order is required in such a situation. In this regard, García Roca affirms that “when the Constitution allows some rights to be ‘suspended’ by declaring a state of exception, it thinks of alterations of public order and the normal functioning of democratic institutions”, not of a pandemic.
Public order concept
Carlos Vidal – UNED constitutional law professor – believes, on the other hand, that “regarding the concept of public order, many jurists have been arguing that it cannot be linked to political elements, violent conflict or citizen security.” “The ruling,” he adds, “confirms this thesis, because the concept must be broader, including the impossibility of maintaining a normal functioning of public services, as in the pandemic.”
Marc Carrillo, professor of constitutional law at Pompeu Fabra University, cites the debates of the constituent legislature and the interventions of Jordi Solé Tura, Gabriel Cisneros, Luis Apostua and Nicolás Sartorius to conclude that “with the figure of the state of alarm they were contemplating catastrophic, natural situations, etc., and not of political and social conflict ”, before which the state of exception fits. Carrillo emphasizes that “the seriousness of the health crisis was not and is not a public order problem that should lead to the strict suspension of some fundamental rights.”
The former attorney general with a PP government, Consuelo Madrigal, emphasizes that “the seriousness of a public emergency justifies the right of exception, the legislation of full powers to deal with it.” But such powers – he adds – “must always be limited and subject to parliamentary control.”
Eloy García, professor of constitutional law at the Complutense de Madrid, maintains: “The solution would be a consensus that nobody wanted.” Albertí, Carrillo and García Roca express it in another way, underlining the problem that supposes that such a relevant sentence is approved by a single vote of difference, the 6 to 5 that was given in the Constitutional Court.