ARCHIVED - Confusion across Spain over regional government powers to implement pandemic restrictions
Different regional High Courts interpret the rights of governments in contradictory ways
On May 9 the national state of emergency caused by the coronavirus pandemic ended, bringing to an end the special authority of the government to limit the movement of its citizens, something which is fundamental to their rights under the Spanish Constitution.
The national government has maintained the stance that the 17 regional governments are best placed to make decisions at a regional level about the level of restrictions within their own regions based on the local epidemiological evolution and that they have sufficient powers under existing legislation to impose restrictions as they see fit.
If a regional government wants to impose additional measures, the High Courts of Justice in each region can overturn the measures if they believe them to be contrary to the consitutional rights of the citizens of the region, and this has been the case throughout the pandemic during the periods in which a national state of emergency is not in place. In the last week prior to May 9 the government issued a Decree which enabled the regional governments to appeal directly to the Supreme Court and ask for the decisions of the High Court (TSJ) to be overturned, enabling them to implement the measures they require.
This has now resulted, as was expected, with a raft of measures being rejected by the regional TSJ courts, as the regional governments across Spain attempt to re-impose restrictions.
The uncertainty regarding the Powers of regional governments in Spain to impose measures designed to curb the spread of Covid-19 has been deepened this week by contradictory rulings in the high courts of Navarra and Andalucía, underlining the legal vacuum left after the end of the national state of emergency on Saturday May 9.
The High Court of Justice in the region of Navarra has followed the lead set by its equivalents in the Basque Country and the Canary Islands by disallowing a night-time curfew introduced by the regional government, seeming to confirm that such restrictions are not within the remit of regional administrations operating without the umbrella of a national state of emergency. It was not until this Wednesday that the 14-day coronavirus incidence rate in Navarra dropped the “extreme risk” threshold of 250 cases per 100,000 inhabitants, but the proposed curfew from 23.00 to 6.00 was rejected on the grounds that it was not sufficiently “necessary and proportionate”.
However, the High Court of Andalucía has added to the general confusion by giving the green light to the perimetral closure of some municipalities with high incidence rates but blocking the exact same measure in others with similar rates. This has merely served to exacerbate the legal chaos which has resulted from the national government’s decision not to renew its state of emergency, as different High Courts interpret the situation in different ways.
In Navarra, the court has accepted that the regional government has the right to prevent events at night where large crowds might gather, but that in order to control street parties it is not necessary to limit the fundamental right to freedom of movement. For the same reason, the court has rejected the order for outdoor bar terraces to close at 22.00.
On the other hand, in the Comunidad Valenciana and the Balearics the High Courts have given their blessing to government plans to limit movement and socializing, despite these two regions having the lowest Covic incidence rates in the country, and in Catalunya the regional High Court has allowed the government to limit the number of people from different households allowed to meet in public.
The court in Andalucía has allowed the regional government to ban people from travelling into and out of two municipalities in the province of Cádiz (Bornos and Villamartín) and one in Córdoba (Castro del Río), but rejected the confinement of the population of Montefrío in the province of Granada. All four currently have incidence rates of over 1,000, but while in the first three cases the ban on travel is considered proportionate by the court, in Montefrío it is described as an indiscriminate measure affecting all of the inhabitants.
Image: María Chivite, the president of the regional government of Navarra