01/09/2022 at 09:35 CET
Cristina Gallardo
The arrival of the sixth wave and the restrictions on social life imposed by the regional administrations, such as the curfew whose extension has just been endorsed by the Superior Court of Justice of Catalonia (TSJC), once again put the debate on the need or not of a specific pandemic law to regulate in a more specific way the actions of the administration and protect the rights of citizens.
Legal experts consulted by El Periódico de España question, however, that the opening of a legislative process at this time is truly useful, since, although would help reduce disparity of criteria between territories and judicial bodies, never reduce inequalities to zero, because whenever there is a restriction of fundamental rights, the validation by a judge.
In relation to the measures to be adopted, today there are two legal responses to the pandemic. The first, according to the contentious-administrative magistrates consulted, is provided by the exceptional states of the organic law of 1981, a matter that the Constitutional Court (TC) has resolved against the two states of alarm decreed by the Government because it understands that they suspended fundamental rights instead of limiting them.
Regarding the second, it attends to the application of the General Health Law of 1986 – which is an ordinary norm – and the Law of Special Measures in Public Health, of the same year and of an organic nature. Both have been used by the Supreme Court to validate restrictions of rights imposed by the Autonomous Communities.
These sources recall that the Contentious-Administrative Chamber of the Supreme Court has been recognizing the sufficiency of this legal framework to adopt measures that limit fundamental rights, although they do not rule out that a specific pandemic law could have been chosen.
However, the jurists consulted coincide in pointing out the problems that the processing of a new law could cause, since it should be determined whether it should be organic or not, and the precision of its content. “If this pandemic has shown anything, it is that lThe general clauses are more useful because the reality exceeds the forecasts of the legislator when it makes a detailed regulation “, add the experts consulted by El Periódico de España.
That is, with the current jurisprudence created during the last year and a half is sufficient, especially if the waves are less and less lethal. “But our jurisprudence does not prevent, it is not an obstacle for the law to be made for future pandemics,” they admit.
The sufficiency of the current regulations is also highlighted by consulted constitutional experts, who insist that “ordinary and organic health legislation already establishes the measures that can be taken and cannot go beyond what the Constitution establishes.”
For extraordinary measures, they point out, there is the state of alarm, especially planned for cases of epidemic. The supposed need for a new pandemic law is, for this expert, “a political excuse to oppose all measures that are adopted with the current legislation “.
Other problems to be addressed when opening the melon of a new law, experts say, involves respecting the competences in the matter of the autonomous communities. In any case, they recommend that, if addressed, the rule is not done “lightly” and be agreed with consensus, which seems complicated in the current political situation.
Other jurists consulted point out that, more than a new pandemic law, a reform of the law that regulates states of alarm, exception and siege would have saved the Government, for example, the double declaration of unconstitutionality issued by the TC. If addressed, the standard should, in any case, be made very clear what is the responsibility of the State and what of the autonomous communities, “and not appeal to co-governance as a ruse to get out of the way”, in addition to addressing the issue of vaccines.
From the field of law, the lawyer Curro Nicolau, who maintains several open litigation in the Supreme Court and the TC for violation of their rights during the pandemic, points out to this newspaper that “the famous Pandemic Law may now make less sense, because during the year and a half long that we have been experiencing the different waves, a jurisprudence has been generated that is the one that has been qualifying the situation in each case “.
In the first place, the legal aspect of the restrictions was addressed in the contentious courts, although the Government urged a modification of the Law of the Contentious-Administrative Jurisdiction – it touched on Article 10.8 – so that they would be the superior courts of justice ( TSJ) those that determine the restriction of these rights. Subsequently, the appeal for cassation was introduced before the Supreme Court, which can be filed by the autonomous governments or by the Prosecutor’s Office, allowing the high court to generate cassational doctrine on what the higher courts were establishing. “Therefore, it has been a bit the facts and the realities that have been drawing legal security beyond the law of the year 86 of Public Health “.
On the part of the judges María Jesús del Barco, of the majority Professional Association of the Magistracy (APM), recalls that the President of the Government himself, Pedro Sánchez, already affirmed when the first state of alarm was lifted regulation was necessary, although later it it has not materialized in any project.
“If you do, you avoid dispersion of decisions by the autonomous administrations and the Supreme Court that have to validate them “, he admits, although he warns that the law to be useful should go a lot in detail -establish criteria that probably depend on each type of pandemic-, since otherwise there is always a margin of discretion in which a judge must enter when affecting the fundamental rights of the citizen.
“In the end, it would always end up in the higher courts“, Barco’s ruling, which adds that other measures, such as those that affect capacity in the hotel industry, do not affect fundamental rights, but do affect other economic rights such as the right to freedom of business, which can substantiate claims of employers in front of the Administration.
On the part of the progressive Judges and Judges for Democracy (JJpD), Ascensión Martín points out to El Periódico de España that it is difficult to give an opinion when the content of the pandemic law in question is unknown. “Anyway it is an eminently sanitary and not legal issue. Laws sometimes do not solve health problems if they do not simply contribute to their improvement, and I do not think that a pandemic law would have changed the health situation in Spain much, “he points out. In any case, and provided that the law affects fundamental rights of citizens, its application “would have to have the authorization of the judicial body, call it a contentious court, call it TSJ or call it Supreme”, adds Martín.
Finally, the spokesman for the Francisco de Vitoria Judges and Magistrates Association (AJFV), Jorge Fernández Vaquero, disagrees with the rest by stating that a new regulation for pandemics it would have been “much needed from the start”Either by means of a new law or by modifying the current health legislation. In his opinion, it should specify what type of measures can be adopted, who, what requirements and with what controls, and “the procedure and management would have been simplified of the crisis “.
“We would know who is the authority, if the autonomous communities or the ministers of Justice, who adopts each measure, what would be the minimum requirements to apply it or when the curfew is justified,” he adds to this newspaper. In any case, and if they did not agree, then citizens could go to the Supreme Court and a judge would review it or other types of controls could be established, as in the regional parliaments, and everything would be clearer and more orderly. “
He admits, in any case, that This does not mean that the disparity of decisions will end . “We judges say that the case is the case, because a measure supported by a report with scientific data is not the same as another supported by a paper that says nothing, but the scope of the judge’s decision would be reduced, which would have the criteria for adopting measures of a general nature “.
The current health legislation, warns Fernández Vaquero, it was not designed to apply to completely healthy people, to the general population, but to sick people in limited areas such as a plane ticket, a hotel, a school, etc. “It was not intended to tell three million Catalans that they cannot leave their house at 12 at night,” he adds, to conclude that “all this distorting the law to solve the problem is a perversion that comes from inactivity. of the legislator “.
He points out the example of the Supreme Court of Aragon, which is taking all the measures issued in this territory before the Constitutional Court so that it can endorse whether they conform to the Magna Carta. “We will see how it is resolved“, it states.
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