On May 9, the extension of the state of alarm in Spain declared by Royal Decree 926/2020 of October 25 to contain the spread of infections caused by SARS-CoV-2 ends. The Congress of Deputies authorized this extension for a period of 6 months, based on the Spanish Constitution and article 6 of Organic Law 4/1981, of June 1, on states of alarm, exception and siege (LOAES).
After 15 months living intermittently ordered by rules of the right of exception, with limitations in our fundamental rights, on May 9 the current state of alarm will decline and the question of what are the standards that may allow to the different Autonomous Communities impose measures they deem appropriate to contain the spread of infections caused by SARS-CoV-2.
From a legal point of view it seems that the crux of the matter is to determine what rules can continue to protect the limiting measures of our fundamental rights in a pandemic situation that is going to be extended even further over time.
The best legal response to combat the pandemic is clearly unknown (excuse the honesty). In addition, it will depend on the political authorities in charge of adopting it, which, yes, I understand that they will attend, in any case, to epidemiological criteria. And, if it is not too much to ask, to the principles of proportionality and necessity. That is, trying to minimize the limitations of our fundamental rights and with a direct relationship between these limitations and the containment of infections caused by SARS-CoV-2.
Returning to the legal system, we are going to try to come up with some options that, at least, outline paths to take as of May 9, if not before.
Decree another state of alarm?
First, should a new state of alarm be decreed or should the response be left to the Autonomous Communities? Both options are possible. Article 116.2 of the Constitution and article 4 of the LOAES empower the Government to decree a new state of alarm.
However, from the statements that the Government has issued in recent weeks, it seems that this figure will not be used because he understands that legal system allows the adoption of limiting measures for the containment of infections caused by SARS-CoV-2 without the need to declare a new state of alarm.
In the autonomous sphere, the president of any Autonomous Community who understands that any of the serious alterations provided for in article 4 of the LOEAS occur, which exclusively affect all or part of the territorial scope of his Autonomous Community, may request the Government to declare the state of alarm.
The rule of law must prevail
The LOAES has not been modified since its entry into force on June 6, 1981 and, as this exceptional scenario continues in time, the risk of incurring in extra-legal situations. As it happened, for example, when the Basque and Galician regional elections called for April 5, 2020 were without effect by decree of their respective presidents.
The Rule of law must prevail. The LOAES could be reformed, on the one hand, to reinforce the controls that the Congress of Deputies must exercise during the state of alarm and, on the other hand, to enhance the controls that could be exercised over the same autonomous presidents as requesting authorities and delegated authorities.
It is more complex to articulate the declaration capacity by regional executives since the Constitution does not allow such a possibility and, furthermore, it seems to want to limit responsibility and control to national state institutions.
As has been said, the possible reform of the LOAES does not seem to be the priority line of the legislative. Perhaps when it arrives, the Constitutional Court ruling that resolves the appeal of unconstitutionality, promoted by Deputies of the Vox Parliamentary Group, admitted for processing by the order of November 17, on behalf of the articles of the royal decrees of declaration and extension of the state of alarm in force.
Health emergency legislation
Leaving aside the figure of the state of alarm, let’s see if it is possible to use as the main legal instrument the health emergency legislation or, to be more precise, of the laws that allow addressing, at the national level, the health emergency situation that we live. Among them, we can highlight three:
- Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters, which allows restricting fundamental rights if there is authorization from a judge for individualized (or individualizable) situations and exhaustively justified.
- Law 14/1986, of April 25, General Health, which, as it is not an organic law, does not allow limiting fundamental rights, such as the freedom of movement of people, but it does empowers the authorities to adopt preventive measures that they deem appropriate.
- Law 33/2011, of October 4, General of Public Health, which establishes that the authorities may adopt, in an extraordinary way, those measures that they consider necessary to ensure compliance with the law.
Under the framework of Organic Law 3/1986, of April 14, it is possible to limit freedom of movement and movement of people throughout the national territory (article 19 of the Constitution) based on a cause of health emergency, such as the pandemic generated by SARS-CoV-2.
However, such limitation must be justified by the public authorities and narrow down to whom and for how long those limitations will apply. Furthermore, in order for them to come into force, given that it has to be an “individualized” rule, the pertinent judicial authorization must be mediated.
In fact, among the few legislative reforms on the subject at hand, we can highlight that of Law 3/2020, of September 18, on procedural and organizational measures to deal with COVID-19 in the field of the Administration of Justice, which modifies Law 29/1998, of July 13, regulating the contentious-administrative jurisdiction so that the Superior Courts of Justice or the National Court, as appropriate, can know in a single instance the remedies that imply the limitation or restriction of fundamental rights when your recipients are not individually identified.
By last:How can a scenario of legal certainty, effective control of political power and transparency be guaranteed of the regional decisions to adopt to overcome health crises like the one we are suffering?
The Council of State issued a report on March 22 where it pointed out a possible answer to this question: the declaration or not of the state of alarm does not prevent the health authorities from agreeing on other measures than, under the protection of state or regional health legislation.
However, these measures they can never be contrary to the state of alarm, in case it is in force. And if it were an autonomous legislative reform, the Communities have the power to develop the regulations of Organic Law 3/1986, which in no case may constitute a development of fundamental rights and public freedoms, reserved to the organic law (Article 81 of the Constitution).
In addition, Organic Law 3/1986 contains extremely generic regulation and does not refer to the regional legislature, so may be insufficient to meet the needs of health authorities competent, in accordance with the constitutional principle of legal certainty.
Naiara Arriola Echaniz, PhD professor in charge of Constitutional Law at the Law School of the University of Deusto.
This article was originally published on The Conversation. Read the original.