Divided Constitutional Court overturns Sánchez's first state of alarm

A totally divided Constitutional Court (TC) has partially agreed with Vox and has resolved that part of the first state of alarm decree issued by Pedro Sánchez's government was unconstitutional. After months of debate and a change in the wording of the report, the Court has decided by six votes in favour and five against - including two conservative judges, one of them the president of the Constitutional Court - that the state of emergency and not the state of alarm should have been applied to decree a strict home confinement, as the far-right party defended from the outset. The final decision, advanced by news website El Español and then confirmed by court sources, comes more than a year after the approval of the first decree of the state of alarm on March 14, 2020, which was extended to three months until June 21.

The court was due to take a decision at the end of last month, but in view of the discrepancies, it postponed it until this week, the last plenary session before the holidays. The decision created a lot of tension and divided the court, to the point that a resolution was scheduled for Tuesday, yet it was posponed until Wednesday. It remains to be known the role of Catalan magistrate Encara Roca, who ended up tipping the balance in favour of the author of the paper, the conservative Pedro José González-Trevijano. The ruling, however, will not be released until the next few days because it must include all the dissenting votes of the five judges who voted against it: the progressives Candido Conde-Pumpido, Maria Luisa Balaguer and Juan Antonio Xiol, as well as the president of the TC, Juan José González Rivas and Andrés Ollero, the latter also part of the conservative sector.

González-Trevijano's paper considers that the harshest restrictions, such as not being allowed to leave the house except for "essential" reasons, were not only a "limitation" of rights, but also a "suspension", and therefore a state of exception or siege had to be applied. In his opinion, and that of the majority of the Court, the legal limits of the state of alarm were exceeded. Applying the state of emergency, however, would have made life even more complicated for Pedro Sánchez's government. To apply the state of alarm it is enough with the approval of the council of ministers and it can be in force for 15 days. Then the approval of a Parliamentary majority is needed to extend it for as long as necessary. For the state of emergency, on the other hand, a prior request to the Spanish lower house is needed, which must give it the green light to be able to go ahead.

Fines have no effect

The immediate consequence of the decision once the sentence is announced could well be all fines imposed on citizens during the first state of alarm due to lockdown infringements becoming void. Specifically, the court has declared paragraphs 1, 3 and 5 of Article 7 of the first decree of alarm null and void. This section stated that you could only go out to the street to buy food and basic necessities, go to the doctor, work, return home, assist elderly or disabled people, go to the bank or for duly justified reasons of force majeure. The ruling also disallowed the sections enabling the government to close roads to stop people's movement.

Uneasiness in the Spanish government

Although expected, the decision of the Constitutional Court has not gone down well with the Spanish government. Sources point out that they "respect" the sentence, but are "surprised by its unprecedented character", with no similar situations in other European countries. In spite of this, they defend the decree and consider that it was "absolutely essential" to save lives. In addition, they recall that many neighbouring states resorted to similar formulas, within their respective legislations, to fight the pandemic. "Without this tool we would not have been in time to stop the virus and would not have been possible to maintain the necessary measures to stop it beyond 60 days," they add.

Finally, they point out that Vox voted in favour of the first extension of the state of alarm in the Spanish Parliament and only later ended up filing the appeal that the Court has now partially upheld. In fact, it should be noted that no party voted against the first extension. PSOE, PP, Vox, Unidas Podemos, Ciutadans, PNV, Más País, BNG, Coalición Canaria, Nueva Canarias, Unión del Pueblo Navarro, Foro Asturias, Teruel Existe and Partido Regionalista de Cantabria voted in favour. Only ERC, Junts per Catalunya, EH Bildu and CUP abstained. This backing was reduced to the point that the Spanish government approved an extension by the barest of margins. This led the Spanish government to apply for a single six-month extension for the second state of alarm decreed in autumn.

Despite the show of surprise, the government had prepared the ground for an adverse decision. Carmen Calvo, before leaving the first vice-presidency, already justified that in March last year things had to be done very quickly and they used to tools at hand. The PP, on the other hand, believes the ruling shows that a law on Pandemics is urgently needed to provide practical legal tools in the face of a new health alert.

The fact is that in May last year the executive of Pedro Sanchez defended legal reforms to create an alternative to the state of alarm, but then stopped. In the last few days a draft of the reform of the National Security Law pointed to the possibility of using it in a similar situation, mobilising everyone over 18 if necessary, giving full powers to the Spanish president and requisitioning products and intervening companies in the event of a state-wide emergency situation. In any case, it is an ordinary law and not an organic law, which raises doubts about its constitutionality.