The lehendakari card

The latest proof that the state of alarm should not have been lifted since the first time it was declared has been provided this week by the letter that the lehendakari Urkullu has sent to the president of the Government asking him to re-impose the obligatory nature of the mask and even to adopt certain decisions to restrict mobility.

This letter should not have needed to be sent. Since March 2020 Spain has been materially in a state of alarm. The number of people infected has fluctuated over these 18 months, as has the number of hospitalised patients and those admitted to intensive care units, but the emergency caused by Covid-19 has never ceased to be present. Consequently, the instrument provided for in our legislation to deal with emergencies of this nature should have been active without interruption.

The declaration of a state of alarm has a time limit of 15 days for the Government, but not when it is the Congress of Deputies that makes the decision. The Constitution allows the Congress of Deputies to declare a state of alarm for an indefinite period of time. It is perfectly possible to make the duration of the state of alarm depend on the evolution of the pandemic.

Among other things, because the state of alarm does not necessarily impose limitations or restrictions on the rights of citizens, nor does it oblige the public authorities to take certain measures in that sense. The state of alarm can be extended to the whole territory of the State and the President of the Government can be the manager of it. But it does not have to extend to the entire territory of the State and the President of the Government does not necessarily have to be the Manager. It can be extended to the entire territory of the State, but management can be delegated to the presidents of the Autonomous Communities or it can even be extended to part of the territory with management delegated to the president of the Autonomous Community affected by the declaration.

The declaration of the state of alarm is a sort of umbrella that provides coverage to the authorities so that they can adopt the measures deemed necessary. These measures may be some in Asturias and others in Extremadura. The authorities open the umbrella when they consider it necessary and close it when it has stopped raining. The declThe state of alarm does not oblige to do anything, but it does enable to do what is deemed necessary depending on the intensity of the emergency.

Since March 2020 the state of alarm should have been operational throughout the territory of the State with the management delegated to the presidents of the Autonomous Communities. They would be the ones who, according to the evolution of the pandemic in their community, would adopt the relevant measures, which, moreover, need not be the same throughout the territory of the Community. Those of Antequera would not have to be the same as those of Jerez de la Frontera.

How are citizens’ rights or the normal functioning of the public authorities affected by the fact that the state of emergency is activated? Nothing, as long as the spread of the virus does not require the adoption of measures. And to a greater or lesser extent, depending on the speed at which it spreads.

The lehendakari Urkullu, instead of sending a letter to the President of the Government, should have been able to send to the Official Gazette of the Basque Country the rule he deems appropriate with the appropriate measures to address the spread of the virus in his community. With the state of alarm in force there would not have been the slightest problem to do so, without having to be aware of what the High Court of Justice of the Basque Country could say or not say.

If any citizen disagreed with the measure adopted by the lehendakari, he could challenge it before the Administrative Chamber of the High Court of Justice of the Basque Country, since the LO 4/1981, which regulates the states of alarm, exception and siege, expressly provides that during the validity of such states, the control by the judiciary of the acts of public authorities is maintained.

The lehendakari would not need the authorisation of the judiciary to take the measure he deems pertinent, but such a measure would be subject to appeal before the judiciary.

We have created absurd problems for ourselves just when we should have been concentrating all our energy on fighting the virus. I fear, moreover, that we have not learned what we should have learned, and that, if it comes to it, we will stumble over the same stone again.

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