Seat of the Constitutional Court in Madrid.

Seat of the Constitutional Court in Madrid.
Seat of the Constitutional Court in Madrid.Eph

The Constitutional Court has annulled by seven votes to four the rule that the Government of Pedro Sánchez launched in 2020 at the end of the first state of alarm, by virtue of which the Superior Courts of Justice of the autonomous communities had to decide, in advance , if the restrictive measures of rights agreed by the regional governments ―such as territorial confinements― were proportionate and should be endorsed or not. This decision represents a new blow to the Executive for the legal strategy followed against the covid-19 pandemic: it joins three other previous rulings in the same direction: the one that annulled the confinement of the first state of alarm, the one that declared the stoppage unconstitutional of activity in Parliament during the first weeks of the pandemic and the one that brought down the second state of alarm decree.

On this occasion, the conservative sector of the court has voted en bloc, against the rule that enabled the Superior Courts, but has also had the support of the court’s vice president, Juan Antonio Xiol, from the progressive sector. The other four magistrates linked to the progressive group -Ramón Sáez, Inmaculada Montalbán, Cándido Conde-Pumpido and María Luisa Balaguer- have voted against. The rapporteur of the resolution has been the conservative magistrate Enrique Arnaldo, backed, in addition to Xiol, by the president of the Constitutional Court, Pedro González-Trevijano, and the magistrates Ricardo Enríquez, Concepción Espejel, Antonio Narváez and Santiago Martínez Vares.

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The Superior Court of Justice of Aragon presented an issue of unconstitutionality regarding the Government’s rule that imposed a judicial guarantee prior to the restrictive measures of the rights of the communities, due to harboring doubts about its legality. The Aragonese TSJ considered that said regulation could suppose a violation of the principle of separation of powers.

The thesis of the judges of the TSJ of Aragon was that the courts should act only a posteriorithat is, in the event of challenges to the measures agreed by the regional governments, but not controlling them a priori to give them the green light or prohibit them before they come into force. The Constitutional gives him the reason.

Separation of powers

The ruling argues that the existence of this judicial authorization prior to the restrictions decided by the governments, “which also has no support in any substantive law”, causes “a reprehensible confusion between the functions of the executive power and those of the courts of justice ”. The power, he continues, belongs to the governments. “It is not possible”, the ruling maintains, “for the legislator to convert it into a power shared with the judiciary, which happens if the application of the regulations is subject to the prior requirement of judicial authorization.” And it adds that “the judiciary is not co-ruler or co-participant in the exercise of regulatory power.” Understanding it in another way “undermines both the regulatory power and the independence and reserve of jurisdiction of the judiciary, thus contradicting the constitutional principle of separation of powers, inherent to the social and democratic State of law.”

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The court also considers that the “confusion of powers” also violates “the principle of effectiveness of administrative action and also limits or hinders the demand for political and legal responsibilities from the executive branch in relation to its general health provisions for the protection of health public, to the detriment of the principle of responsibility of the public authorities”. Finally, the Constitutional Court indicates that the challenged precept violates the principles of disclosure of the rules and legal certainty.

The ruling argues in this sense that the judicial resolutions that authorized these general provisions in health matters were not published in the corresponding official gazette, which “makes it difficult for recipients to know the restrictive or limiting measures of fundamental rights to which they apply.” They are subject as a consequence of the judicial authorization of these health regulations of necessity”. The Constitutional Court specifies that its sentence extends “by connection or consequence” the declaration of unconstitutionality and nullity of said rule to the attribution to the National High Court of the judicial authorization of the urgent general provisions for the protection of public health, which imply deprivation or restriction of fundamental rights, approved by the state health authority.

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