The plenary session of the Constitutional Court will foreseeably vote this Wednesday if it annuls the home confinement of the state of alarm as unconstitutional, as defended by the rapporteur of the draft sentence. That ruling would imply the annulment of one million fines and the constitutional obligation to decree a state of exception to impose measures similar to those applied during the present pandemic if the case were to arise in the future.
The magistrates that make up the Court held on Tuesday a tense and transcendent debate lasting more than four hours. The magistrates are aware of the historical nature of their decision, because it will mark the path that must be followed to give legal coverage to the suspension or limitation of rights – depending on the case – in the face of a health emergency such as the one that the extension of the the Covid-19. But, according to the reconstruction of the debate that EL PAÍS has been able to carry out, the positions are irreconcilable and irreducible.
Five magistrates (three progressives and two conservatives) continue to believe that in the face of a pandemic of this type, it is enough to decree the state of alarm, while another five (all of them conservatives) consider it essential to declare a state of emergency. The sense of the eleventh vote, which corresponds to the vice president of the court, Encarnación Roca (elected at the time on the proposal of the PSOE), continues to be surrounded by uncertainty.
In the intense debate on Tuesday, in addition to the rapporteur, five magistrates – three in favor of the draft sentence, and two against – intervened, and this Wednesday another four will intervene – three against said text, and one in favor, plus the vice president, who will have to definitively clarify the meaning of her vote (if the vote is not postponed again).
The first to intervene this Tuesday were the magistrates of the progressive sector María Luisa Balaguer and Cándido Conde Pumpido. Both did so against the presentation, and both were replied by its author, the conservative bloc magistrate Pedro González Trevijano, whose thesis is that during the confinement there was a suspension of fundamental rights in radical terms, so it was not enough to declare the state of alarm (approved by the Government, not the Parliament) to give legal cover to the situation that was created.
Conde-Pumpido —who was the state attorney general for eight years— argued that there is a basic error in claiming the state of exception to face a pandemic, especially if the argument is that the state of alarm decreed last year suspends rights fundamental. According to him, the instrument that really relegates and pulverizes fundamental rights is the state of exception, which leaves in the hands of the Executive an all-embracing power, both to extend the periods of detention from three to 10 days without judicial intervention and to close the media or to carry out searches in homes or establishments.
In the opinion of Conde-Pumpido, in short, annulling the decree on the state of alarm now borders on absurdity and would betray the will of the constituent legislator and of the one who later developed the constitutional mandates. Conde-Pumpido recalled that Parliament linked the state of exception to cases of serious disturbance of public order, while mentioning health emergencies among the cases planned to agree on the state of alarm.
Suspension, not limitation
Judge González Trevijano put his foot on the wall in the face of these arguments. For Trevijano, the Constitution does not allow lax interpretations, and the suspension of a right cannot be called a limitation. In his opinion, the fact is that between March and June of last year, Spaniards could not leave their home – except for tasks or functions that were essential or very necessary for themselves or for the community -, they could not set their place of residence freely, nor were they able to meet with relatives and friends. Such fundamental rights, therefore, remained in practice abolished. This can only be done after a declaration of the state of exception, which implies the prior authorization of Parliament, added Trevijano.
Conde-Pumpido, for his part, defended the balance that the state of alarm supposes for relations between the Government and Parliament. The Executive agrees to the measure, but Parliament endorses it. And in the case of the one decreed last year, parliamentary support exceeded 90%. Pumpido recalled that the Executive was criticized for having acted late, and stressed that declaring the state of exception would have handcuffed the Government while waiting for the debate in the Cortes, which in that case are responsible for approving said measure. Conde-Pumpido thus wondered if the Constitutional Court wants to be responsible for facing with foreseeable delay – not due to a lack of reliable information, as last year – the outbreak of a pandemic.
González Trevijano replied then that democracy demands the utmost respect for the distribution of functions. Therefore, if the situation is exceptional – for reasons of public order or for other reasons – it is up to Parliament to assess it, and it is their duty to act swiftly.
The three following interventions corresponded to three members of the conservative sector, Santiago Martínez Vares, Ricardo Enríquez and Alfredo Montoya. All of them were in favor of declaring unconstitutional a part of the decree on the state of alarm because, like the rapporteur, they understood that this measure meant in practice the suspension of fundamental rights, a decision that in their opinion cannot be taken without declaring the state of exception.
The deliberation largely reproduced the doctrinal debate that has been open among constitutionalists for a year. Demonstrating in favor of the theses presented by jurists such as Pedro Cruz Villalón or Tomás de la Quadra Salcedo, they intervened this Tuesday in the plenary session of the Constitutional Court, Balaguer and Conde-Pumpido to underline the sufficiency of the declaration of the state of alarm as a measure that implies a limitation. , but in no way a suspension or suppression of fundamental rights. Balaguer already accumulates a long list of individual votes in court, identified with a radical defense of such rights, in disagreement with multiple sentences, including the one passed to endorse the Citizen Security law, also known as the gag law, and its sanctioning possibilities. .
All the magistrates who intervened had already taken the floor in June, clearly defining themselves. Four of the five who will intervene this Wednesday had also done it. They are, on the one hand, Andrés Ollero and the president of the court, Juan José González Rivas, as well as Juan Antonio Xiol, who criticized the presentation and announced their vote in favor of endorsing the state of alarm. And on the other hand, Antonio Narváez, who already said that they supported the speaker. One vote remains in the air, the one that can decide the debate, the one corresponding to Encarnación Roca. The vice president of the court listened carefully to the presentations on Tuesday, but she will not decide until she has heard them all and once it is time for the vote.