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Emergency Law in Spain: the Spanish Constitutional Court’s case law

Germán M. Teruel Lozano, Lecturer in Constitutional Law, University of Murcia

When the Constitution reached its twenty-fifth anniversary, back in 2003, Professor Cruz Villalón highlighted the period of “constitutional normality” that we had lived through. In recent years, that normality has been disturbed by some turbulences that have forced the activation of some exceptional mechanisms provided by the Constitution in order to restore democratic normality. This was the case in 2010 with the declaration of the first state of alarm, in order to face the wildcat strike by air traffic controllers; in 2017 with the insurgency in Catalonia and the application of art. 155 of the Spanish Constitution (SC) to exercise federal coercion; and in 2020-2021 with the declaration of successive states of alarm to face the covid-19 pandemic. In any case, I think the balance is positive: the Spanish Constitution has demonstrated its strength and its validity also in the exception, affirming its guarantees to preserve our freedom and prevent abuses of power.

Something to which the Constitutional Court has undoubtedly contributed with a case law that has allowed an interpretation of these exceptional categories within the prism of a modern constitutional State. This happened with the ruling of the Constitutional Court in relation to the application of art. 155 SC, and I believe this is also the defining orientation of the recent ruling on the declaration of the state of alarm in this pandemic. Neither the Emergency law provided in art. 116 SC, nor art. 155 SC that includes federal coercion are that “nuclear button” that could blow up the constitutional State. In a democratic State of Law such as that defined by the Spanish Constitution, no matter how serious the danger the State faces, there is no naked sovereign who decides on the exception, nor will the Constitution be suspended without guarantees.

Specifically, the ruling on the first state of alarm in the COVID-19 crisis offers us an instruction manual to interpret art. 116 SC, still incomplete and, it is true, at some point confusing. Incomplete, because there are still problems to be solved, with which the Court will have to deal in other pending cases. In particular, the six-month extension of the state of alarm, its liquidity in regional co-governance, and the delimitation of the powers of the health authorities to limit fundamental rights in a generalized way out of the framework of the alarm state. In addition, greater expository coherence and clarity is missed in this decision, and some of its arguments are debatable. In fact, the decision has been approved by a narrow 6 to 4 majority, and has generated a lot of political noise and a wide legal debate.

In any case, let us try to reconstruct the guidelines established by the Constitutional Court. The main object of the controversy brought before the Constitutional Court was the government’s decision to confined the population in order to respond to the pandemic. The Government adopted this measure decreeing the state of alarm. However, the Spanish Constitution only allows the suspension of rights in the framework of a state of exception or a state of siege. The constitutional question was: was the confinement of the population an intense limitation of freedom that could be adopted in the state of alarm or was it a suspension that could only be adopted in the framework of the state of exception? And, in the latter case, was it possible to decree a state of exception to face a pandemic? The response of the Constitutional Court has been that the confinement was unconstitutional because such an incisive measure in the freedom of movement cannot be considered as a mere limitation, but that, materially, it would have meant a suspension.

Regarding the second question, the Constitutional Court has recognized that the legislation establishes the state of alarm as the framework to respond to a pandemic, but, at the same time, the Court has invited to overcome the strictly “essentialist” or “qualitative” reading that had been carried out of the three exceptional states. The Spanish Constitution provides for three exceptional states (state of alarm, state of exception and state of siege), which the legislator in 1981 had distinguished according to the different nature of their de facto presuppositions: the state of alarm to face natural or technological calamities; the exception for public order crisis of a socio-political nature; and the state of siege for armed insurrections. However, in the opinion of the Court, this vision was already overcome in 2010, when the state of alarm was applied to resolve a strike, and this pandemic has once again called it into question. As the Constitutional Court has ruled, there are elements in the Constitution that show its “gradualist” accent, which allow to distinguish the three emergency states by their severity. And, in this regard, the Constitutional Court has concluded that the pandemic reached “unknown” and “unpredictable” dimensions that would have caused an alteration of the constitutional public order that required materially suspensive measures of rights, so it would have been possible to declare a state of exception, instead of the alarm state – as the Spanish Government did.

In short, with its lights and shadows, we are before a decision that establishes a constitutional doctrine and that invites the legislator to assume the task of updating the obsolete normative framework that regulated exceptional states in Spain.

Suggested Citation: Germán M. Teruel Lozano, Emergency Law in Spain: the Spanish Constitutional Court’s case law , Int’l J. Const. L. Blog, July 22, 2021: http://www.iconnectblog.com/2021/07/emergency-law-in-spain-the-spanish-constitutional-courts-case-law

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Published on July 22, 2021
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