Cebada Romero, Alicia

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Spain: One Pandemic and TwoVersions of the State of AlarmAlicia Cebada Romero 2021-02-26T09:00:38IntroductionThe Spanish response to the waves of the COVID-19 pandemic that have affectedthe territory has so far largely relied on emergency powers. The measures wereadopted on the basis of the pre-existing legal framework provided in article 116 ofthe Constitution and its legislative development, Ley Orgánica 4/1981 on state ofalarm, exception and siege,  adopted on 1 June 1981 (henceforth LO 4/1981). Asexplained below, two different approaches have characterised the response to thefirst and second wave. However, both have their legal basis on the same norms andare based on the same legal category, i.e., the state of alarm (estado de alarma).The central government has exclusive competence to declare a state of alarm andmaintain it for up to 15 days. However, if the Government wants to extend the stateof alarm beyond the initial fifteen days it needs authorization from the Congresode Diputados (Congress of Deputies). During a state of alarm, the government canimpose limitations to rights but not their suspension. This distinction has implicationsbeyond the Spanish borders since only derogations of rights, rather than theirlimitation, need to be notified to the Secretary General of the Council of Europe (forStates that have notified Covid-related derogations see here) and the United Nationsto fulfill relevant human rights obligations.First State of Alarm: Centralised LockdownThe first declaration of the state of alarm was enacted on 14 March 2020 by RoyalDecree 463/2020. The Spanish Congress extended it fortnightly on six occasionsbetween 14 March and 21 June 2020. The Prime Minister was therefore subjectedto regular parliamentary control to secure the extensions of the state of alarm, ascrutiny that progressively undermined a minority government within a climate ofenormous tension between political parties and within society at large.In his commentary on Spain for the first “COVID-19 and States of Emergency’symposium, Presno Linera explains the main issues raised by the first state of alarm.The most controversial aspect pending consideration before the ConstitutionalCourt concerns its legality. Some authors have argued that some of the measuresconstituted de facto suspension of fundamental rights, not permitted by Spanishlaw in the context of a state of alarm. In contrast to most countries in the world, thereasons that were considered justifications to leave the house were extremely limitedand did not include access to educational facilities, exercise or time outdoors.- 1 -Other authors, such as Quadra Salcedo have argued that the measures adoptedwere mere limitations of rights and aligned with the legal contours of the state ofalarm. This position was backed by the Defensor del Pueblo (Spanish Ombudsman)who monitors the functioning of all public administrations and acts as the NationalHuman Rights Institution. The Defensor del Pueblo has locus standi before theConstitutional Tribunal to appeal the constitutionality of legislation. In that capacity,he issued a resolution on 3 September 2020 rejecting 617 petitions that requestedhim to raise the issue of the conformity of the Royal Decree 463/2020 with theSpanish Constitution. The decision, reasoned over 25 pages, concluded (pages 21and 22) that the generalised confinement of the population resulting from the stateof alarm’s declaration constituted a severe restriction of the exercise of fundamentalrights but not their suspension. It was, therefore, in conformity with the constitutionalframework. The state of alarm was the appropriate legal framework to introducegrave restrictions of rights to address a serious public health emergency. TheOmbudsman concluded that the situation did not amount to a public order crisisfor which a declaration of the state of exception, allowing the suspension of rights,would be more suitable.The nature of the measures approved during the first state of alarm meant thatchildren’s mobility and fundamental rights were disproportionally affected without anyreasoning enshrined in law. Despite the early warnings issued by the UN Committeeon the Rights of the Child and other international bodies, children remained the onlysector of the population with no reasonable excuse to leave the house for weeks,except in case of illness or if it was impossible to leave them unaccompanied andthey were under 12. However, neither the Ombudsman nor most commentators haveaddressed the rights of children specifically (for an exception, see the analysis byRuiz, Gómez and Rodríguez; also tangentially, Estrada, page 28).Another controversial aspect of Royal Decree 463/2020 concerned the centralizationof the response at governmental level ignoring the quasi-federal organization ofthe State. During the first state of alarm, the regional governments continued tomanage their jurisdiction but within the framework of direct orders from the centralgovernment. Among other devolved competences to the Autonomous Communities,health became centralised without previous negotiation. Overall, the first state ofalarm imposed centralised and uniform measures applicable to the entire territory,without involving the Autonomous Communities in the decision-making process.Some restrictions imposed on the press at the beginning of the state of alarmwere modified by the government after receiving harsh criticism from journalists’associations. Four hundred journalists signed a manifest claiming their freedom toask (#drechoapreguntar) questions to the Prime Minister and other ministers withoutintermediaries, after the government imposed a practice by which journalists had toask questions in writing and in advance. It has also been argued that the severity offines of up to €600,000for breaking lockdown rules was disproportionate, especiallywhen considering the average income of the Spanish population.  (see also SpanishOmbudsman criticisms here, p. 22-23)- 2 -Changing Strategy: De-Escalation Plan and SecondState of AlarmIn cooperation with the Autonomous Communities, the government designed a“de-escalation plan” in four phases in April 2020 to progressively return to the so-called ‘new normality’. According to the terms of the last extension of the state ofalarm, approved on 6 June 2020, the Presidents of the Autonomous Communitiesbecame co-deciding authorities with the Ministry of Health, acquiring the power tomaintain or modify the measures implementing the state of alarm. The state of alarmdecided by the central government remained in force until 21 June. However, from 8June, Presidents of the Autonomous Communities became competent to cease itsapplication in their respective territories.The punitive nature of the measures that characterised the state of alarm declaredin March 2020 have resulted in the identification of this category with a compulsorystay-at-home lockdown (or “lock-in” as Presno Linera puts it). It has also enabledand/or reinforced distrust of the Autonomous Communities towards the centralgovernment. The unilateral and centralised imposition of the measures were largelyperceived as undue redistribution of the territorial division of power that interfereddirectly with their competences.As demonstrated by the declaration of the second state of alarm in October 2020,the constitutional framework and emergency legislation regulated by LO 4/1981,allows less restrictive approaches.During the second wave, the central government based its decisions on the principleof co-governance. In order to facilitate its application, the government propelledan express amendment of the legislation on the administration of justice (Ley deJurisdicción Contencioso-Adminsitrativa). This reform, approved by Law 3/2020 on18 September 2020, facilitates the adoption of measures by regional governmentsthat may affect fundamental rights. It establishes, among other provisions, thatregional tribunals must endorse decisions adopted by the territorial administrationsthat restrict freedom of movement to enter and leave the territory over whichthey have jurisdiction. The constitutionality of this reform is under scrutiny beforethe Constitutional Tribunal due to serious concerns over the weakening of thedoctrine of the separation of powers. Its final judgement may shed light over thefragmented case-law available on the legality of restrictions of rights emanating fromAutonomous Communities (on divergent decisions on this issue see García Majado).A softer version of the state of alarm to address thesecond waveThe lack of clarity on the distribution of competences between territorial entities andthe central government during a state of alarm contributed directly to the declarationof the second state of alarm. After a regional tribunal, the Tribunal Superior deJusticia de Madrid¸ quashed restrictions of movement that were decided by Madrid’s- 3 -  territorial authority, on 8 October 2020, the central government felt compelled tointervene declaring a state of alarm with limited territorial scope. By Royal Decree900/2020, of 9 October, the central government restricted the freedom to leave andenter the most Covid affected municipalities of Madrid.The unfavourable evolution of the situation with increased rates of infection,prompted the extension of the declaration of the state of alarm to the full territoryby Royal Decree 926/2020 of 25 October. Originally approved for fifteen days, theCongress authorised a six-month extension. Hence, the current state of alarm is inforce until 9 May 2021. The distribution of competences between central governmentand the autonomous communities differs substantially from the first state of alarm.Within the framework of restrictions authorised by the central government, thecompetent territorial authorities decide the restrictions of rights applicable within theirrespective jurisdictions. The limitations to rights approved in the context of the second state of alarm aremuch less restrictive than those imposed between March and June 2020 and consistof night curfews; perimeter closures of autonomous communities and municipalities,and limits to gatherings in public and private spaces, including places of worship.The Interterritorial Council of the National Health System, chaired by the Minister ofHealth, coordinates implementation of the state of alarm.Reasons for concernIn addition to the legal issues raised by the decision-making process andimplementation measures that characterised the first state of alarm, the response tothe health crisis by the Spanish government has exposed pre-existing weaknessesof the legal framework regulating emergency situations and created new challenges.Firstly, it has become apparent that LO 4/1981 does not provide adequate legalbasis to articulate the distribution of competences between the central governmentand autonomous communities. As it stands LO 4/1981 only contemplates thedelegation of relevant competences to autonomous communities when a crisis isconfined to its territory. A reform/update of the current legislation should reflectthe quasi-federal structure of the Spanish State. It should also regulate the roleof regional parliaments in monitoring the actions of their respective governments,another point for which no provisions exist.A second concern is the length of the second state of alarm, pre-approved byCongress for a six-months period. Although LO 4/1981 does not set a time limit forextension of states of alarm, a six-month period seems incompatible with the spirit ofthe Law of Exception as it undermines the monitoring power of the Congress.Finally, the criticisms directed to the government for its centralised managementof the state of alarm and the harshness of the restrictions have become criticismsover the legal insecurity allegedly created by the softness and fragmented measuresapproved during the second state of alarm. However, these measures have provensufficient for the time being in avoiding the overwhelming of hospitals and intensecare units. The Royal Decree 926/2020 has also been the object of an appeal- 4 -questioning its constitutionality. The Constitutional Tribunal will hopefully shed clarityon some of the legal issues that have been raised so far.Final Reflections: the impact of the pandemic onrights and equalityAs highlighted by many international institutions (e.g. FAO, UNDP and ILO), thepandemic has had the most impact on those already in vulnerable positions (e.g.MRG Briefing). From a legal perspective, the differentiated treatment of economic,social and cultural rights versus civil and political rights in European countries isreflected in a lesser protection of the right to health and other economic and socialrights than the protection granted to other rights such as freedom of movement. Thisis also true in Spain where the right to health enjoys a lesser status constitutionallythan other civil and political rights (on the impact of this dichotomy in the context ofCovid-19, see Dominguez Redondo).Several measures were adopted to alleviate the economic and social impact forthe most vulnerable in Spain, where 2.5 million persons suffer from severe povertyand 26% of the population is at risk of poverty or social exclusion. The governmenthas approved a range of economic and social measures that include a minimumliving income and protection for those losing their employment or at risk of becominghomeless (Cebada Romero).This health crisis has demonstrated that the impact of a pandemic in a countrydoes not depend solely on its human and financial resources. Countries with similarsocio-economic indicators have fared very differently. This situation should lead to aprofound reflection about the role of good governance and the legal framework usedto address crisis with a real willingness to learn lessons from best practices aroundthe world.- 5 -

Spain: One Pandemic and Two Versions of the State of Alarm

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Spain: One Pandemic and Two Versions of the State of Alarm

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