A divided plenary session of the Constitutional Court resulted in a judgment that rectifies the doctrine that the Court itself established during the pandemic: the state of alert is sufficient to impose measures such as confinement which, according to the Constitutional Court , do not imply the suspension of a right but its limitation. The progressive majority of the plenary session adopted a resolution which, after analyzing a Galician health law of 2021, announces that it rectifies its own criteria and establishes that measures such as confinement are viable thanks to the state of alarm without it being necessary to use it. to the state of emergency or to the site.
The convictions for the 2021 state of alarm were the most important and almost the only legal blow to the management of Pedro Sánchez’s government during the pandemic. A sharply divided plenary session estimated Vox’s resources and said the executive’s measures to address the pandemic were necessary, but the state of alert was not sufficient to implement them. The Constitutional Court then understood, with many 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 was relaunched when this Tuesday the plenary session analyzed another call 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 were to be confronted. The plenary session, sources from the organization explain to elDiario.es, was united in the understanding that this Galician norm is unconstitutional because it enters an area reserved for organic laws, but it was deeply divided by including a paragraph that changes constitutional doctrine. on these matters.
A press release from the court explains that it made this decision “by rectifying its previous doctrine” established in 2021 when it canceled the state of alert. The Court of Guarantees now states: “The state of alert decree itself may establish high-intensity limitations on fundamental rights as long as it complies with the necessary constitutional requirements and, in particular, as long as it respects the principle of proportionality. »
Different judicial sources explain to this newspaper that this resolution does not affect the decision taken in 2021 regarding the state of alarm, but that it generates new rules for the future. The Constitutional Court now understands that the confinement of the population to their homes as was done in 2020 during the first waves of the coronavirus did not suspend a fundamental right of the population as such. And therefore the state of alert is sufficient to implement this type of measures because it is proportionate. These same sources explain that a more restrictive measure could be considered a suspension of fundamental rights and would therefore require a state of emergency.
The majority sector understands that from 2020 to today, there has been an evolution, not only in the health reality but in the jurisprudence and the criteria of the Constitutional Court, in the sentences which, for example, have endorsed compulsory vaccination children or analyzed the possibility of calling for protests during the pandemic.
The 2021 state of alarm deliberations deeply divided a court that then had a conservative majority and did so again three years later. The five conservative sector judges voted against this part of the sentence and announced five dissenting votes.
The conservative sector, against
The conservative magistrates expressed their position contrary to the new doctrine and announced a total of five dissenting votes, the content of which will be known in the coming days. Sources in this sector explain to elDiario.es that they consider that this new doctrine gives carte blanche to the government to impose restrictions without submitting to the control implied by the state of exception, resorting to the state of alarm if he deems it necessary. They also understand that in three years there has not been this evolution of the doctrine that the progressive sector presented to carry out its sentence in a direction radically opposed to that which they presented in 2021.
The debate on the subject arrived at the table of the TC at the initiative of Vox, and the appeal that this formation presented against an autonomous law (Galician Health Law) that Feijóo approved alone and by which he reserved the power to restrict rights such as freedom of movement or the right to assembly. In these days of COVID anxiety, the Galician administration regulated the number of people who could gather at the same time in a house or the times they were allowed to move freely through the streets.
The doctrine defended at the time by the TC made it possible to guarantee that another appeal, presented by the government against the government of Feijóo, fell on deaf ears and that the decisions of the current leader of the PP be 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 “by an organic law, since they constitute a direct development of said fundamental rights.”
