Publication: Tuesday, May 11, 2021 6:04 AM
Spain continues to be plunged into a sea of legal doubts about the capacities of regional commands to control the pandemic in their territories after the end of the state of alert. But the central government is not giving in: it will not expand it or implement additional legal changes to provide communities with new mechanisms to fight the virus. The executive insists that the autonomies have sufficient tools to implement standards to properly manage the epidemiological situation in each zone.
However, uncertainty continues to haunt this whole political and judicial mess that seems to have only just begun. As expected, the higher courts of justice have already issued various rulings on the administrations’ requests to maintain restrictions that affect fundamental rights – so far protected by the state of alert – such as mobility and assembly. And that caused great confusion: although the TSJIB allowed the curfew and the perimeter closure to be extended in the Balearic Islands, the TSJC canceled those same restrictions for the Canary Islands.
This led to the Canary Islands being the first territory to appeal to the Supreme Court of this judicial rejection, forcing the High Court to rule on the restrictions. This was established by a decree-law which did not suit members of the technical cabinet of the Administrative Litigation Chamber. In the midst of this chaos, even the government is reconsidering how to proceed on this issue. This is what happened to the Minister of Justice, who in a few hours considerably changed the position of the central command.
Early in the morning of Monday, Juan Carlos Campo assured that the executive was open to legislative changes if the Supreme Court blocked the measures of autonomy against the pandemic. It is, as stated in an article published in the newspaper ‘El País’, that “if the decisions of” Justice “show the need for further legal changes, they will be studied and proposed before the courts”. However, very soon after, the minister himself repeated in Al Rojo Vivo that “nothing is prepared” in this regard because there is “a regulatory arsenal” for “1000 different situations”.
The scope designates actions such as the closure of hotels or shopping centers, as well as other decisions that would avoid crowds and that could be carried out without the need for an exceptional scenario. Like those agreed at the Interterritorial Council, which prevent groups of more than six people on the public highway – which would penalize irresponsible attitudes like those of Madrid, Barcelona or Salamanca this weekend -. This is how the minister responded, supported a few hours later by Pedro Sánchez of Greece, to the critics of Casado and the communities governed by the PP, who accused the government of “passivity”, although they did not not even consulted justice on the restrictions. like curfew.
In any case, Campo insisted that there was no reason to prolong the state of alarm “because now the framework is extremely uneven” in different parts of the country, but he insisted on remembering that the autonomies, if they request it, have the capacity to request its application in their respective boundaries: “A community can request it and the Government will respect the decision and declare a state of alert for this territory.” But is it really possible to ask for it in some cases?
Apply alarm states at the territorial level
Yes he is. This is the option proposed by the government, defended by Minister Campo en laSexta, against the PP’s intentions that “someone else shakes the cat”. His approach raises doubts among regional leaders who have seen their demands to impose restrictions rejected by the courts and who have not used another means to fight the contagion curve. But the truth is that already in August 2020, Pedro Sánchez opened the door to the regions to demand the declaration of a constitutional mechanism on their territories or part of them in order to decree measures such as kidnapping.
Although, according to the Spanish Constitution, only the central government can declare this exceptional scenario anywhere on the national map, it is possible that the leader of a community requests it. “When the hypotheses mentioned in the previous article (disasters, calamities or public misfortunes; health crisis; paralysis of essential public services; situations of shortage) affect exclusively all or part of the territorial perimeter of an Autonomous Community, the president of the same , he will be able to ask the Government for the declaration of a state of alarm “, it is gathered in the fifth article of the organic law 4/1981, of June 1st.
The competent authority will be (…) the President of the Community when the declaration relates exclusively to part of the territory “
Then, in the sixth article, it is specified that this mechanism, which will be implemented “by means of a decree agreed upon in the Council of Ministers”, cannot “exceed fifteen days” and can only be extended “with the express authorization of the Congress of Deputies. “. It should also be specified in relation to this question that the current leader can unilaterally exercise this request, without first reaching a consensus with Parliament, as provided for in the law, which in its article seven specifies that “the competent authority will be (..) the President of the Autonomous Community when the declaration relates exclusively to part of the territory of a Community “.
Aunque Sánchez afirmó el verano pasado que “quién mejor que el presidente autonómico para explicar la situación” de crisis sanitaria en una región concreta, la verdad es que el Gobierno central también es capaz de decretar el estado de alarma en una comunidad aunque esta no esté Okay. This happened in October 2020, when the executive decided to declare a state of alarm in the Community of Madrid for 15 days after the refusal of the president, Isabel Díaz Ayuso, to agree on a legal formula to maintain containment of the perimeter in the region.
Although currently the PP continues to oppose the application of the state of alert and undertakes to modify Law 86 on public health to provide the territories with a legal framework to limit mobility, the situation calls for the implementation of measures that do not allow the cumulative incidence, infections and hospitalizations due to the soaring pandemic. Although the severity of the epidemiological situation has eased and the vaccination process is progressing at a good pace – Sánchez warned that there are less than 100 days to reach the target of 70% of the population vaccinated – a false move could lead Spain to break with the past to finally emerge from a health crisis which continues to display dramatic figures on a daily basis.