Last Tuesday, in La Moncloa, the Annual Regulatory Plan 2022. Is a interesting document because it contains, with brief explanatory summaries, the list of laws and decrees that the Government wishes to see in force this year that we begin. The approval of the decrees depends on the Government itself but, for the laws to reach the BOE, you will need the support of your parliamentary partners. In any case, the public exposure of the Government’s regulatory intentions is a positive element. Although, as is obvious, it is always possible for the Government to present bills or approve decrees that do not appear in the Plan. And if the government fails to comply, for whatever reason, there will be no consequences, beyond criticism from the opposition.
For all these reasons, it is understandable that the media have highlighted the silences of the Plan. If what is said must be taken as a declaration of intentions to do something, what is not said can be interpreted as the desire not to address certain issues. Thus, it has been underlined that in Plan the reform of the crime of sedition is not included, which could be an incentive for the return of Carles Puigdemont. Precisely for this reason, it could be a source of wear and tear for the government: lowering the penalty for sedition would mobilize the right and the extreme right, in addition to disconcerting some socialist voters.
What is most difficult for me to understand is that legislative reforms are not proposed that specify the regulations applicable in pandemic situations. I think they would not wear down the ruling coalition, and might even be acceptable to the opposition. Because I dare to outline some ideas, without claiming to be exhaustive.
In the first place, I would deal with the organic law 3/1986, of Special Public Health Measures. Article 3 says: “In order to control communicable diseases, the health authority, in addition to carrying out general preventive actions, may adopt the appropriate measures to control the sick, the people who are or have been in contact with the same and the immediate environment, as well as those considered necessary in case of risk of a transmissible nature.” I think a new paragraph could be added specifying that such measures may include restrictions on freedom of movement at certain times, limitations on the freedom of assembly and the capacity of closed premises.
It would be about introducing into the law the measures that have been repeatedly endorsed by the courts. Thus, secondly, one could eliminate the obligation that the adoption of these measures be subject to judicial authorization. If the law empowered the health authority, it would make no sense for the Superior Courts of Justice to intervene to authorize what the law expressly allows. The judicial control of these measures would remain intact, if they were appealed by citizens who considered that they violated their rights. Suppressing prior authorization cannot and should not restrict the jurisdictional protection of rights.
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To these two ideas I would like to add another, which fully enters into utopia: reform the constitution. After the rulings of the Constitutional Court on the state of alarm, to impose a home confinement it would be necessary to declare the Exception status, which requires prior authorization from the Congress of Deputies. The state of alarm comes into force when the BOE publishes the government decree declaring it, although Congress can later decide whether to extend it or not. And sometimes home confinement, as an urgent health measure, cannot wait for the duration of the parliamentary process. That is why I suggest that article 55 of the Constitution be modified, so that the state of alarm, in situations of health emergency, can determine home confinement.
If constitutional reform is impossible, we should at least find a way to clarify health legislation, leaving the health authorities to assume their responsibilities before the representatives of the citizenry for the general measures they adopt. And that the courts continue to guarantee individual rights without having to participate in decision-making of a general scope.
Reference-www.elperiodico.com