A legal framework to tackle the pandemic

2 min
The Spanish President, Pedro Sánchez, in Congress.

BarcelonaSince the beginning of the pandemic there has been a recurring debate on whether a specific law would be needed to apply restrictions on rights or whether the current instruments, which stem from the 1986 law on special measures in the field of public health and the state of alarm or exception included in the Constitution, are sufficient. Pedro Sanchez's government seemed willing, at the beginning of the pandemic, to address the debate, but then sidestepped it and diverted this responsibility to the Supreme Court, which has been responsible for unifying the doctrine to be applied by regional high courts.

The Spanish government's argument at this point is that the situation, due to the success of vaccination, has nothing to do with that of March 2020 and, therefore, it does not believe it will again have to resort to exceptional mechanisms such as the state of alarm or exception. This view, however, errs on the side of optimism, since the effects of the omicron variant, which is more resistant to vaccines, show that no future scenario can be ruled out, not even that of total lockdown. Should the case arise, after the Constitutional Court's ruling that overturned the state of alarm, the government would have to opt for a state of emergency, which is much more restrictive in terms of fundamental rights. For this reason it seems reasonable to have an ad hoc regulation with specific adjustments to the current laws, whereby fundamental rights could be temporarily affected in order to deal with an outbreak of coronavirus or any other pandemic that might occur in the future.

This is not a simple debate, because we are talking about restrictions on fundamental rights, and both parties and experts disagree about the best formula. This, however, is not an excuse for not addressing the issue and opening a public debate on what to do in situations such as those we are unfortunately experiencing. What cannot happen is that the courts overturn the requirement for a covid pass in various regions, as happened in summer, and that months later the Supreme Court authorises them due to the escalation of contagions. Because if we have learnt one thing from the pandemic, it is that you have to get ahead of the virus, so that restrictions have to be adopted not when the situation is out of control but before, when there is still time to prevent the curve of contagion spiralling out of control. And this type of decision must be taken by expert epidemiologists on the basis of mathematical models, and not by judges, who only have to supervise that the criteria applied are really scientific. If we wait until we are in a critical situation to act, the virus will always be ahead.

Even so, it seems that the Spanish government has decided that it does not want to enter the debate and leaves the management of the pandemic to the autonomous regions and the courts. And it is not even capable of expressing an opinion on whether the best way to tackle the situation is with restrictions like those applied by Catalonia or without them, as in Madrid. But it is one thing to respect the autonomy of regional government, and quite another to wash one's hands of the situation in order to avoid political cost.