One year after the controversial ruling that annulled the state of alarm to deal with the pandemic, the legal strategy decided by the Government in order to combat covid continues to generate strong controversies in the Constitutional Court. Now, four magistrates from the progressive sector of the court of guarantees have released a resounding dissenting vote with the last ruling promoted on this matter by the conservative block, for understanding that this block has come to “usurp the space and margin of appreciation that corresponds to the democratic legislator.
The ruling – handed down on June 2 by seven votes to four – once again scuppered an important measure of those agreed by the Government and supported by Parliament to combat the spread of the pandemic. In this case, it was the law approved by the Executive in September 2020, with the subsequent endorsement of Congress, consisting in which the autonomous communities could submit to the approval of the judges any administrative measure restricting freedoms —such as territorial confinements or time limitations—before they were mandatory.
These measures were put in place after the first state of alarm and caused the Superior Court of Justice of Aragon (TSJA) to see in the law that established this prior judicial control a possible reason for unconstitutionality. This thesis was accepted by the Constitutional Court in its last ruling on the matter. The ruling —for which the magistrate from the conservative sector, Antonio Narváez, was the rapporteur— estimated that the fact of increasing the guarantees in the adoption of measures restricting freedom actually put the principle of separation of powers at risk.
The sentence stated that this legal modification caused the judiciary to have to endorse or not the administrative decisions against the pandemic before they came into force, and not limit itself to reviewing its legality. a posteriori, Y as a result of possible lawsuits. The conservative majority —in this case with the support of the vice president of the court, Juan Antonio Xiol—, considered that this violated the principle of separation of powers, because the contentious jurisdiction was attributed “functions outside its constitutional role”.
In substance, what the ruling underlined is that the Government was unloading on the judges responsibilities that do not correspond to them, because they are political. The progressive sector has responded forcefully to this argument, by means of a dissenting vote in which it states that the separation of powers does not suffer because there is collaboration between them. He thus underlines that the configuration of the norms “is a task that corresponds primarily to the democratic legislator, as a legitimate political option to answer to citizens in elections, and not to the constitutional jurisdiction.”
For this reason, the Constitutional Court cannot “usurp the space and margin of appreciation that corresponds to the democratic legislator to adapt to the circumstances of each moment”, according to the dissenting vote, which cites the jurisprudence of the court itself. And it is added that “in the case of the control of the decisions adopted by the legislator, the presumption of constitutionality of the laws must occupy a prominent role in the prosecution of the issues raised.” The dissenting magistrates emphasize that “the sentence (…) unduly distances itself from this constitutional doctrine and interferes, without sufficient constitutional reasons for it and in a disproportionate manner, in the margin of appreciation that the Constitution attributes to the democratic legislator.”
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The magistrates of the progressive sector reproach the conservative majority that in its sentence “the context and purpose of the legislative reform being prosecuted are ignored.” That context was “that of a pandemic” caused by a virus with “high transmission capacity and which, at the time the law was approved, had already caused tens of thousands of deaths in Spain.”
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