COVID-19: The legal battle against the pandemic and “territorialised” states of alarm
Andrés Boix, professor of Administrative Law at the University of Valencia, explains in The Conversation the declaration of the state of alarm as a means to face health crises, the management of pandemics and other health emergencies using ordinary legal instruments, and who is competent to adopt the measures and the alternative of the territorialised states of alarm.
25 de september de 2020
During so far this year, society has learned to deal with the complex health, social and economic situation derived from the COVID-19 pandemic. To date, two different alternatives have been developed: the state of alarm and the ordinary management of the Autonomous Communities, to which the proposal of the government of Spain to implement “territorialised” states of alarm has been added.
The declaration of a state of alarm to face health crises was the legal instrument chosen by the government as of March 14, 2020, with the approval of Royal Decree 463/2020. The UV professor explains that, within the possibilities of action inherent to the state of alarm listed in articles 11 and 12 of LO 4/1981, the government deployed strongly restrictive measures of fundamental rights, especially a home confinement for almost the entire population that could only be ignored to stockpile basic necessities, attend emergencies or go to work and the prohibition of many social and economic activities. The intensity of these restrictions led to discussion even if the limitations did not go beyond what a declaration of a state of alarm allows.
Within the laws that govern public order, citizen security, and health, there are instruments to deal with situations such as the spread of infectious diseases. These instruments were used before March 14, 2020 and have been used since June 21 to deal with the situation.
As the article in The Conversation contributes, art. 3 of LO 3/1986, on Emergency Measures in Public Health Matters, states in a broad and open way that “in order to control communicable diseases, the health authority may adopt the appropriate measures for the control of the sick, the people who are or have been in contact with them and the immediate environment, as well as those deemed necessary in the event of a communicable risk”. HE simply indicates that all those measures that are “necessary” may be adopted without establishing greater precautions or additional limits. What according to Boix will in no case be constitutionally admissible will be a suspension of fundamental rights or freedoms.
According to the researcher, possible legislative reforms have been proposed as a necessary response so that our legal system is better outlined. The government of Spain has announced its intention to reform art. 8.6 LJCA so that general decisions of limitations for the fight against the pandemic are no longer of judicial ratification by the contentious-administrative courts but by the Superior Courts of Justice of each Autonomous Community, which will act with more easily coordinated criteria.
The government of Spain has also announced that it is willing to declare “territorialised” states of alarm at the request of the Autonomous Communities that prefer to manage the crisis with this instrument, in principle proper to the central executive, instead of with ordinary legislation, which According to Boix, it would allow centralising the response to the pandemic in an autonomous, “single command”.
The proposal for a “territorialised” state of alarm and with management by the Autonomous Community would produce: that the autonomous government in turn would join its control over social, health and civil protection services with the powers over the forces of order deployed in its territory and even on the transport systems and infrastructures of general interest, which would remain under its sole command.
Andrés Boix concludes by saying that it is equally questionable that we were really going to witness a delegation of a state of alarm that transferred command of all the forces of order in that territory to the regional executive, which seems doubtful. It is understandable that the Autonomous Communities do not seem to have the intention of resorting to this possibility, we will have to get used to the management of the COVID-19 pandemic using the ordinary mechanisms contained in the health legislation that both public administrations and judges know and apply better every day.
Read the full original article published on The Conversation.