Constitutional Court declares part of second state of alarm unconstitutional

by Deborah Cater
constitutional court Spain

The Constitutional Court delivered its latest blow to Pedro Sánchez’s government. It declared unconstitutional, by six votes to four, part of the second state of alarm that began on October 25, 2020.

As confirmed by La Vanguardia from legal sources, the majority of the plenary session has voted in favour of the sentencing presentation. That considers part of the appeal presented by Vox against the second state of alarm.

The Constitutional Court declares some government measures illegal in the state of alarm

The sticking points have been the lack of parliamentary control of the Prime Minister, Pedro Sánchez. And the second, the co-governance allowed so autonomous communities could decree curfews and other limitations to stop the pandemic.

This is the last plenary session before the new magistrates take their seats. This will mean that the presidency of the constitutional body changes, currently under the command of Juan José González Rivas. With the renewal, the court will remain with a majority of seven magistrates proposed by PP. That compares to five from PSOE.

Sentence after renewal

Regarding the sentencing, there was the question of whether it could go ahead with a change of court in sight. Sources from the court defending the Magna Carta explain that in the event the renewal occurs before presentation of the dissenting votes, they can deliver the sentence a posteriori.

The presentation supported part of Vox’s argument in its appeal against the state of alarm that began in October 2020. The Santiago Abascal party appealed to the court that the Pedro Sánchez Government violated rights such as freedom, assembly or gatherings/protests.

C&D Solicitors

Close vote

The forecast was there would be a close vote due to the difference in criteria between magistrates. In the previous state of alarm, the sentence went ahead by six votes in favour to five. The president of the court, Juan José González Rivas, even opposed declaring the home confinement unconstitutional.

The debate then was whether the state of exception had to be applied to limit fundamental rights. The majority supported that the state of alarm was insufficient and had to be approved to carry out restrictions on rights such as free movement.

Those who defended the government’s decision support that the state of alarm law itself expressly establishes that the Congress of Deputies will determine the duration of the extension. In the case of the second state of alarm, the courts overwhelmingly approved the six-month duration.

In addition, these same sources warn that neighbouring countries that suffered the pandemic, such as France or Italy, acted similarly. They approved states of emergency lasting several months. In fact, Italy’s state of emergency is still in place.

The defenders of this second state of alarm also maintain that the co-governance  was necessary because at the present time the competences on Health transfer to the autonomous communities.

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