A divided plenary session of the Constitutional Court has led to a ruling that rectifies the doctrine that the court itself established during the pandemic: the state of alarm is sufficient to impose measures such as confinement which, the Constitutional Court now says, do not imply the suspension of a right but its limitation. The progressive majority of the plenary session has carried out a resolution that, after analyzing a Galician health law of 2021, announces that it rectifies its own criteria and establishes that measures such as confinement are viable through the state of alarm without it being necessary to resort to the state of emergency. exception or site.
The 2021 state of alarm sentences were the biggest and almost the only judicial blow to the management of Pedro Sánchez’s Government during the pandemic. An extremely divided plenary session estimated Vox’s resources and declared that the measures taken by the executive to confront the pandemic were necessary, but that the state of alarm was not enough to implement them. The Constitutional Court then understood, with numerous votes against, that measures such as confinement had suspended the fundamental rights of the population and that for this it would have been necessary to activate the state of exception or siege.
The debate has been revived when this Tuesday the plenary session analyzed another appeal from Vox but against a health law that the Xunta de Galicia of Alberto Núñez Feijóo implemented in 2021 to take measures if a new health emergency had to be faced. The plenary session, sources from the organization explain to elDiario.es, has been united in understanding that this Galician norm is unconstitutional because it entered a field reserved for organic laws, but it has been deeply divided by including a paragraph that changes the constitutional doctrine on these affairs.
A statement from the court explains that it has made this decision “rectifying its previous doctrine” established in 2021 when it annulled the state of alarm. The court of guarantees now says: “The state of alarm decree itself can establish high intensity limitations on fundamental rights as long as it conforms to the necessary constitutional requirements and, in particular, as long as it respects the principle of proportionality.”
Different court sources explain to this newspaper that this resolution does not affect the decision they made in 2021 regarding the state of alarm, but it does generate new rules for the future. The Constitutional Court now understands that confining the population to their homes as was done in 2020 during the first waves of coronavirus did not suspend a fundamental right of the population as such. And, therefore, the state of alarm is sufficient to implement this type of measures as it is proportional. These same sources explain that a more restrictive measure could be considered a suspension of fundamental rights and, therefore, require a state of emergency.
The majority sector understands that from 2020 to the present there has been an evolution, not only in the health reality but in jurisprudence and the criteria of the Constitutional Court, in sentences that, for example, have endorsed the mandatory vaccination of children or have analyzed the ability to call for demonstrations during the pandemic.
The deliberations of the 2021 state of alarm deeply divided a court that then had a conservative majority and have done so again three years later. The five judges from the conservative sector have voted against this part of the sentence and have announced five dissenting votes.
The conservative sector, against
The conservative magistrates have expressed their position contrary to the new doctrine and have announced a total of five dissenting votes, the content of which will be known in the coming days. Sources from this sector explain to elDiario.es that they consider that this new doctrine gives the Government carte blanche to impose restrictions without submitting to the control implied by the state of exception, resorting to the state of alarm if they see it necessary. They also understand that in three years there has not been that evolution of the doctrine that the progressive sector has presented to carry out its sentence in a radically opposite direction to that which they presented in 2021.
The debate on the matter has reached the TC table at the initiative of Vox, and the appeal that this formation presented against an autonomous law (Health Law of Galicia) that Feijóo approved alone and by which he reserved the power to restrict rights such as freedom of movement or the right of assembly. In those days of anxiety due to COVID, the Galician administration regulated the number of people who could gather at the same time in a home or the hours at which they were allowed to move freely through the streets.
The doctrine that the TC defended at the time served to ensure that another appeal, presented by the Government against Feijóo’s rule, fell on deaf ears and the decisions of the current leader of the PP were declared within the limits of the Constitution. The new interpretation says the opposite of what he said then and ensures that the limitations that the PP leader once applied can only be adopted “through an organic law, since they constitute a direct development of said fundamental rights.”
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