END OF ALARM STATE

The good news of the end of the state of alarm

“Our legal system has sufficient mechanisms, adequate for this phase of the pandemic and less damaging to fundamental rights,” says the Minister of Justice.

Covid-19 & State of Alarm in Spain

The end of the state of alarm is good news. It means that the worst of the pandemic has passed and that exceptionality is no longer essential.

Just 14 months ago our life changed. Faced with an unprecedented health threat, the Government made the very difficult decision to declare a state of alarm throughout the country, restricting fundamental rights to prevent infections. We have gone through very tough months, with unbearable numbers and a health collapse. And the Government is aware of the enormous cost that the restrictions have had for citizens. A cost in the form of an economic and emotional crisis that we have assumed as a society to preserve a higher good: our life and our health.

Despite the brutal criticism received, today few doubt that resorting to the exceptionality allowed by the Constitution was the right decision. A year ago, with very complicated epidemiological data, the opposition leader dismissed the state of alarm as a “legal and constitutional aberration”, ignoring that it provided all the authorities involved with effective legal tools to combat the virus.

Unfortunately, in all these months, the opposition has always played against; the pandemic as an opportunity for permanent political attack. Even now, with a very different health situation. But the irresponsibility and disloyalty of the opposition do not exempt the Government from responsibility. The right of exception should only remain for as long as it is absolutely essential. As soon as possible, the obligation of a democratic government is to ensure that citizens and public powers return to normalcy. In fact, the Council of Europe has already called for emergency situations to be prolonged as little as possible.

We already have 28% of the population with at least one dose of the vaccine, and more than 80% of our elders. Communities such as Valencia have been without deaths from COVID-19 for a week and many others also show favourable trends. It is good news that the pandemic is subsiding, and we can return, little by little, to that long-awaited normalcy.

But the end of the right of exception does not mean the end of the restrictions, not at all. The threat of the virus persists. That is why the authorities must continue to act, and the public must behave responsibly. Our legal system has sufficient mechanisms for this, appropriate to the phase of the pandemic in which we find ourselves and less harmful to fundamental rights. This normality means that the authorities once again exercise, out of the state of alarm, their powers in public health. We have a general law on public health, one on special sanitary measures, and another on national security. Even local administrations have useful instruments for prevention. And where it is necessary to adopt provisions that restrict fundamental rights, judicial authorization must be obtained. That is the current system in our country.

This procedure, for which some today are criticizing the Government, was incorporated into our law of contentious-administrative jurisdiction in 2000, during the Government of Aznar. In other words, it has been in force for more than two decades. In these years, the contentious-administrative judges have been in charge of authorizing or not restricting measures of fundamental rights. With this model we face, for example, the Ebola crisis and the period after the first state of alarm in this pandemic. And no one questioned the constitutionality of the procedure, nor was it said that the fight against the pandemic was being prosecuted.

Within this framework, the Government has done two things. On the one hand, last September the judicial authorization procedure was already reformed to attribute jurisdiction to the higher courts of justice and to the National Court when the recipients of the sanitary measures were not individually identified. This reform was welcomed at the time and makes sense, since it matches the territorial jurisdiction of the judicial authority with that of the health authority that usually adopts these measures, the regional government. The second novelty that we have introduced, in the recently approved Royal Decree Law 8/2021, is a specific appeal so that the Supreme Court can review the decisions adopted by each higher court. It was a demand of the presidents of these courts and a necessary measure so that the highest judicial authority in the country can unify the criteria used to ratify or deny the sanitary measures. With these adjustments, the Government understands that the legal framework is adequate to combat the pandemic in the phase we are in. It is a flexible and guarantee framework, which allows health authorities to adapt the necessary decisions and measures to each territorial situation. And it must be the judges who carry out the proportionality judgment if it is necessary to take restrictive measures of rights.

That is the normal operation of our rule of law and those who propose legal reforms to avoid that control simply have not understood our constitutional design. It is also reasonable that, if there is disparity of criteria, it is our high court that sets the common guideline for the entire country. Who else was going to do it? Of course, if the need for additional legal changes emerges from their resolutions, they will be studied and proposed to the Courts.

Finally, the autonomous governments always have the possibility of requesting the declaration for their territory, with the scope they consider, of the state of alarm. It is a possibility specifically provided for in our legislation, which the central government has already committed to supporting. Therefore, neither judges governing, nor abandonment of responsibilities or abandonment of the autonomous governments. All in all, it’s simply good news. We leave the exceptionality, because the health situation allows it, and we return to ordinary.

VALENCIAN COMMUNITY COVID-19 MEASURES

• The entry and exit of the Valencian Community is authorized
• Limited mobility from 00 to 06h.
• Hospitality until 11:30 p.m. with 50% of total capacity inside, with 10p/table max.
• Meetings in public and private spaces are extended to a maximum of 10 people.

Information found on El Pais.