The Blog: The Constitution and the curfew

Felipe’s message last Christmas contained various references to the Constitution, which he invoked in defending unity and the institution of the monarch within the democratic framework.

Pablo Casado, the leader of the Partido Popular, was to call it an “impeccable message” with its defence of national unity and constitutional harmony. The King himself said: “Our Constitution guarantees us our way of understanding life, our vision of society and of being human - dignity, rights, freedoms.”

The King is not party to the arguments about the state of alarm. They are ones for politicians, journalists, judges, the entire social media community. The person who, by virtue of his very position, is an unwavering defender of the Constitution, doesn’t get involved in these arguments.

Yet the state of alarm and post-state of alarm are firmly constitutional matters, and the only reason for recalling what the King had to say last Christmas lies with those words above and what might be deemed to be contradictions, not so much where the state of alarm itself was concerned but with what is following.

There were of course those who suggested that there was some playing fast and loose with the Constitution when it came to extensions of the state of alarm. Casado, for example. At one point last spring he referred to a “constitutional dictatorship” that was continuing to impose the state of alarm.

His criticisms notwithstanding, the government had applied a legitimate tool, a constitutional mechanism which was the only legal means of adopting measures as drastic as those which ran counter to the guarantee of our way of understanding life, our vision of society and of being human - dignity, rights, freedoms.

The Constitution allows for three “states” - alarm, exception and siege. They are all “regimes of exception” insofar as they are intended solely for exceptional circumstances, the differences lying with the nature of these circumstances.

The state of alarm has only been used twice - three times in that there have been two since March last year for the same reason. The first, for the air-traffic controllers’ strike in 2010, was only short and its purpose was entirely different. There were no personal freedoms being denied, except in the sense of freedom to travel brought about by the strike, which was clearly not of the government’s making.

The Covid state of alarm was fundamentally a denial of freedom, but it was felt to have been imperative because of the exception - the grave health crisis. When the state of alarm was renewed in October, it wasn’t the same, and specifics were required - the curfew was one of them.

The Spanish government argued that the state of alarm was still the only legal and constitutional means of denying freedoms, such as the curfew. Yet the PP had argued that there was another way that didn’t entail a state of alarm, and that other way is not dissimilar to what has happened in the Balearics and some other regions. Court backing has been given to amendment of public health legislation.

But not all courts and not all judges see it this way: the state of alarm is indeed the only mechanism. In the Basque Country, for instance, the High Court there has taken a different view to its counterpart in Palma. Not all governments see it this way: the majority of regions have dispensed with the curfew.

The division at the Balearic High Court - three judges in favour, two against - highlights the differing interpretations. The opinion of the three judges is that the Balearic government’s decree does not “annul” fundamental rights, only limits them. However, there is clearly sufficient questioning of this opinion for the Prosecutor’s Office to have studied an appeal.

Arguments over the legalities may appear arcane, and for most of us that it is exactly what they are, but they are also important for a country where so much emphasis is constantly placed on the Constitution. These arguments include ones that the Balearic government and the High Court have essentially undermined the Constitution, while imposing the curfew - now that the state of alarm no longer applies - is not far removed from the acts of authoritarian regimes.

One opinion piece has referred to the fact that when the coup attempt was made in 1981, a curfew was declared in Valencia; that coup attempt was a last hurrah of the Francoists. The implication of that reference is of a type of coup against the Constitution in the Balearics. This is going too far, but it is an indication of how much this is felt to matter and how much those words of the King should serve as a reminder.