The sentence that considers unconstitutional the state of alarm decreed by the Government in March 2020 to combat the health crisis dispensed with several paragraphs of the initial report that were sympathetic to the Government’s will to save lives, although that did not affect the final sense of the ruling of the Constitutional Court.
The long road of contradictions in the Constitutional Court: how the censure of Pedro Sánchez that Vox demanded was forged
The most prominent of these deleted paragraphs of the report, to which elDiario.es has had access, is the one that states that, “given the circumstances surrounding” the imposition of the state of alarm, “this radical limitation (or suspension) of the fundamental right to freedom of movement can not fail to be considered as a reasonably appropriate and necessary measure for the achievement of the objectives indicated”.
The statement was introduced by the rapporteur, Pedro González Trevijano, in the final passages of the legal grounds. The cited paragraph, which he later removed from the final ruling, continues as follows: “From the extreme perspective of control that corresponds to this court, the measure can be qualified as adequate, in attention to what could have been prudently assessed at the time by whoever adopted it, on the basis of information, investigations and data then available or that were immediately confirmed.”
With a slim majority of six to five, the Plenary of the Constitutional Court partially upheld the appeal of unconstitutionality filed by Vox against Royal Decree 463/2020, thus overturning the measure that came into force on March 14, 2020 on limiting the movement of people and vehicles in public spaces and public roads, as well as the ability of the Ministry of Health to modify and extend the measures of restraint in commercial activity.
Another of the statements that fell out of the presentation and that showed understanding with the Government’s intentions reads as follows: “Nor can the measure be materially censured as excessive or unavailable because other possible measures exist of similar effectiveness, but less incisive on the fundamental rights affected”. The text of the report seemed to allude to the National Security Law or the Public Health Law, which the Government discarded in favour of the State of Alarm Decree.
In the same vein, the rapporteur González Trevijano recalled in the initial text that ‘it is up to the legislator [the Government and the Congress of Deputies here] to carry out the judgment of necessity’, provided that it does not provoke ‘a patently unnecessary sacrifice of the rights guaranteed by the Constitution (STC 8/2015)’; a general rule to be taken into account in a situation such as the one caused by the pandemic, characterised by uncertainty as to the possible effectiveness of alternative measures to strict physical distancing between people, measures which, in hypothesis, would have been presented as more selective”.
And the same rapporteur then returned to contextualize the measure adopted by the Government that the Constitutional Court’s ruling was to censure: “It should not be forgotten, along with this, the relative scarcity of appropriate health resources to deal with the initial expansion of the pandemic [the shortage of products necessary for the protection of public health” to which article 13.a of Royal Decree 463/2020 expressly refers]”.
Different sources of the Constitutional Court consulted by elDiario.es disagree on the reason for the deletion of these paragraphs. According to one of these versions, the introduction of the aforementioned statements sympathetic to the Government’s decision constituted an attempt by González Trevijano to attract votes from the progressive sector to his paper and that, once he verified that these adhesions were not going to occur, he proceeded to eliminate them.
Other sources in the Court claim that it was the magistrates who supported the ruling who proposed to González Trevijano to withdraw those statements because they considered them “reiterative” because the ideas they expressed were already adequately reflected in the text, in the sense that the Executive erred in terms of the legal framework to tackle the effects of the serious health crisis but not in the end nor in its effects.
In contrast to these deleted paragraphs, there is an addition that did not appear in the initial report and which is key to the ruling. It is the last point of the legal grounds, just before the text expresses the ruling of the Constitutional Court, referring to the fact that the declaration of unconstitutionality of the state of alarm “will not in itself” be a reason to establish possible claims for financial responsibility, “without prejudice to the possibilities that the Organic Law of the states of alarm, exception and siege itself includes in this regard”.
This paragraph, which was not in the original text of González Trevijano, is introduced by the rapporteur to get the support of the magistrate Encarnación Roca, considered a member of the progressive sector, although her name was supported by the PSOE at the request of CiU, according to one of the sectors consulted by this media. These sources claim that Roca, aware that her vote would decide the ruling in favour of the unconstitutionality of the state of alarm, did not want it to lead to an avalanche of patrimonial claims against the State.
On the other hand, other sources in the Constitutional Court assure that Encarnación expressed to everyone from the beginning that she would support the sense of the report and that she only requested that the ruling include as clearly as possible the limitations of its consequences in terms of the demands of patrimonial responsibility of the State. This caused, according to the latter sources, González Trevijano to add the aforementioned paragraph.
A court split in two
The debate within the court on the state of alarm has caused a huge division among its judges, which has resulted in a total fracture between those who were in favour of rejecting the Government’s measure and those who argued that the legal coverage was correct and in accordance with the Constitution.
This second bloc, led by the president of the court, Juan José González Rivas, has issued a series of private votes in which they charge against the conclusions of their colleagues. In the case of González Rivas, for example, he criticized that the analysis of the constitutional issues that had raised the appeal of Vox had not led the court to reach a consensus, and that instead the deliberations had ended with such disparate positions, the magistrates so divided, that the vote was decided by a single vote.
Andrés Ollero, for his part, criticised in his dissenting vote that the debate in the Constitutional Court had revolved around whether the different states – alarm, exception and siege – were gradual, and had not delved into the circumstances that made it necessary to apply one or the other.
María Luisa Balaguer has gone a little further in her text. The magistrate, in addition to analyzing why she believes that a state of alarm was justified, she also charges harshly against her colleagues. Her vote begins by regretting that it has not been possible to reach “an argument that is acceptable to the majority” of the court – just as she has not been able to reach “an argument that is acceptable to the majority” of the court. and criticizes the “extreme polarization” that has taken place within it.
In his opinion, the sentence “generates more legal uncertainty than it intends to combat” and goes so far as to criticize the “internal noise” generated in the court, which has sustained, he says, “extra-legal positions that are not very recommendable for the future, in an institution that should only pronounce itself through its resolutions”.
But the hardest vote has been that of the magistrate Candido Conde Pumpido, who in a first draft came to say that the paper that ended up winning by a single vote of difference is “more typical of a layman than the highest interpreter of the Constitution”. The six magistrates who are affected by this phrase have absented themselves from the plenary session of the court on Tuesday in protest, as reported by El País. Conde Pumpido has been forced to issue a note of apology in which he highlights the “integrity, solvency and intellectual commitment” of his colleagues in the Constitutional Court.