Conference of the TC: “The control of the Congress to the Government was canceled in the 2nd state of alarm”

During the second state of alarm and its extension, which lasted from November 9 to May 9, “The control regime that, in guarantee of the rights of all, corresponds to the Congress was canceled. of the Deputies “.

“Parliamentary control”, he adds, “which is also at the service of the formation of a active and vigilant public opinion and that it cannot in any way be ignored during a constitutional state of crisis “, affirms the presentation written by the magistrate Antonio Narváez.

The Constitutional Court, which on July 14 threw down the first state of alarm decreed in March 2020, is preparing to debate the second state of alarm and its extension for six months. Both decisions were endorsed by Congress on October 29, 2020 by 194 votes in favor (PSOE, Unidas Podemos, Ciudadanos and ERC, among others), 99 abstentions (it was the option of the PP) and 53 votes against by the parliamentarians de Vox, who challenged them before the TC.

Magistrate Narváez does not question the need to prolong the state of alarm given that at that time “the situation of serious alteration of normality caused by the coronavirus pandemic persisted.”

Blank check

But it highlights that neither the government agreements nor the congressional resolution established in a certain way the beginning and the conclusion of the implementation of measures such as the curfew, the closure of the autonomous communities or the limitation of the right of assembly both in public and private spaces.

In accordance with the decrees of the Government and the parliamentary resolution, the application of these measures would be made effective according to what the “competent delegated authorities” -the presidents of the autonomous communities and the presidents of the autonomous cities- determined by their own decision in view of the evolution of the indicators.

The Autonomous presidents were those who could “modulate, make flexible and suspend” the application of the measures in their territories, maintain them or even proceed to their “regression”.

This regulatory framework that protected the second state of alarm was unconstitutional because “it corresponds exclusively to the Congress of Deputies (with the sole exception of the initial government declaration of a state of alarm) the responsibility of deciding on the measures to be applied in its function of control to the Government, without prejudice to the fact that the parliamentary agreement may confer on the governmental authority the responsibility of specifying or specifying to the casualty [en cada caso] the application of one or other of the measures decided by the Chamber “, states the presentation.

In this way, he maintains, “the determination of the duration of an extension cannot be classified as reasonable or founded for a period of six months that Congress established without any certainty about what measures were going to be applied, when they were going to be applied and for how long would they be effective in some parts or others of the entire national territory to which the state of alarm spread, “since all this was left in the hands of the regional presidents.

“It is impossible to discern the reason for the imposition of a certain term, the agreed or any other hypothetical one. This imposition can only be rationally made in consideration, given the factual circumstances, to the expected and initial effectiveness of concrete measures to be put immediately in practice for a defined period of time, although it can be extended again; estimate that depends on whether the duration of the extension for debate is weighed, in the deliberation of the Chamber, as indispensable (article 1.2 of the Organic Law of the States Alarm, Exception and Site, LOAES), something that no one, not even the one who agreed, is in a position to argue whether the effective adoption and maintenance of the authorized measures remains, as it was here, completely uncertain“.

The presentation rejects Vox’s argument that the extension should have been for 15 days and not six months. “It is not its duration, by itself and without more, that deserves constitutional censure, but rather the unreasonable or unfounded nature, considering the parliamentary agreement as a whole, of the decision by which such term was fixed,” he argues.

The Congress “automatically” endorsed the Government’s proposal “in a request for an extension that was not connected to the direct application of measures that would be in force during the authorized extension period, since it was not the Government, in as competent authority for the management of the state of alarm, the one that was going to carry them out by the delegation that had been agreed “.

The Chamber did not “prudently” reserve the power to maintain control over the Government, “subjecting the application of the measures to due periodic review approved and their effectiveness, “reproaches the presentation. Congress” thus came to divest itself of its exclusive constitutional responsibility to reform or not, in the face of a new request for extension, the scope and conditions with which it agreed to the first one.

Unconstitutionality

The unconstitutionality thus focuses on “the emptiness of the determination of the extension period, set completely regardless of whether the authorized measures would be implemented and for how long, together with the attribution to non-parliamentary instances of the power that only Congress corresponds to reconsider – in view of the certain evolution, in whatever direction, of the crisis situation – the maintenance, and in such case in what terms, of the extraordinary limitations that were placed on the ordinary functioning of the Rule of Law , with particular affectation to the exercise of the fundamental rights and public liberties of the citizenship, which were subjected to limitations and restrictions “.

The draft judgment goes so far as to indicate that the duration of the extension of the second state of alarm was agreed “without any discernible basis” and “to the detriment of the inalienable constitutional power of the Congress of Deputies to decide in the course of the emergency, at the request of the Government, on the continuity and conditions of the state of alarm.”

Regarding the delegation to the regional presidents of the application of the measures limiting fundamental rights, the draft judgment examines the parliamentary debates that gave rise to the LOAES and stops at the express rejection that there was of the possibility of considering the responsible for the autonomous communities “competent authorities” for the state of alarm.

The delegation “was not possible”

“Neither of the parliamentary works that preceded the approval of the LOAES, nor of the text of article 7 of said organic law is possible, without contradicting it, the delegation carried out,” he indicates.

“What is essential to the institutional position of Congress and the Government, and the relations between both bodies, on the occasion and during the validity of a state of alarm and its extension, has been unknown,” he adds, since the Government agreed the delegation in royal decree 926/2020 “without any reservation of instructions, effective supervision and eventual certification by the Government itself of what the ‘delegated authorities’ could act in their respective territorial areas. “Only the Interterritorial Council of the National Health System (which was not the Government) was entrusted with the task of guaranteeing the coordination of measures.

“Thus, both the Government and Congress later withdrew from the constitutional position that is proper to each of these constitutional bodies, being to underline, as far as the Chamber is concerned, that their authorization is not mere budget for the extension of the state of alarm but also, additionally, a ‘determining element of the scope, conditions and terms thereof’ ”, according to the jurisprudence of the TC.

“The Congress was deprived first, and later lost its power, neither removable nor renounced, to oversee and supervise the actions of the governmental authorities during the agreed extension (article 116.5 of the Constitution and articles 1.4 and 8 of the LOAES) “, he explains.

“Whoever could be controlled by the Chamber (the Government responsible before it) was deprived of powers in order to implement some measures or others,” he adds.

And “those who were empowered in their place for this purpose (the presidents of the autonomous communities and cities with autonomy statute) were not subject to the political control of Congress, but, eventually, that of the respective legislative assemblies “, he concludes.

Guaranteed measures

The speaker does not question the appearance regime Before the Chamber of the President of the Government, Pedro Sánchez, and the then Minister of Health, Salvador Illa, every two months the first and monthly the second. In this, he does not agree with Vox, since the agreed periodicity “in no way excluded other appeals” to render accounts.

Nor does it consider unconstitutional the measures whose application was contemplated in the second state of alarm and its extension: curfew between 11 p.m. and 6 a.m., limitation of entry and exit in the autonomous communities and autonomous cities, reduction to six people of the meetings in public spaces and private and limited capacity in places of worship. It considers that, as designed, these measures did not imply a suspension of fundamental rights, unlike what happened in the first state of alarm.

The effects of the unconstitutionality that Narváez proposes are merely declaratory. The text specifies that the partial nullity of the Government decrees and of the Congress resolution “does not affect by itself, directly, the acts and provisions issued on the basis of such rules during their validity. This is without prejudice to the fact that such affectation could, if necessary, be appreciated by the judicial bodies “according to the applicable general legislation.

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