Had the government seemingly confined us all illegally?

Had the government seemingly confined us all illegally?

28-03-2020L. BECERRA

We can get bogged down in terminology, but there are times when it can be important, and Spain’s “states of emergency” are important.

The Constitutional Court ruled on Wednesday that the government had not acted in accordance with the Constitution last March when it decreed the first state of alarm. The first important point to make, in terms of terminology, is that this was a state of alarm.

It was not a state of emergency. Why is this important? Well, one reason lies with perception, in particular in other countries. True to form, when the court made its decision, the reporting in the UK referred to “state of emergency”, couched of course in somewhat sensationalist terms, as the government had seemingly confined us all illegally.

Back in October, when the second state of alarm was decreed, the Partido Popular president of Galicia, Albert Núñez Feijóo, offered an insight into how perceptions can be affected. He didn’t object to the content of the regulations as they were defined in October, but he did have an issue with the state of alarm mechanism and therefore the language and the perception. He wasn’t in favour of a “state” at all, arguing that there were other means to pursue the same ends.

He was also aware that the declaration of a state of alarm could potentially further harm Spain’s international image (and therefore tourism) and also “further stress Spanish society”. This was partly because, and lost in translation, the alarm becomes emergency, and emergency is far stronger a word than alarm.

It also has connotations that simply don’t apply. A state of alarm, he argued, would generate “mistrust, perhaps without intending it”. He observed that other countries have similar measures which have similar names, but as he rightly pointed out, “they do not mean the same” as those in Spain.

Feijóo, for one, fully understood the terminology and how it can be misapplied. But we are now being told (and so is the government) that a different term and a different mechanism should have been adopted back in March. This is the state of exception.

Of the reports following the Wednesday ruling, one was supplied by the ‘El País’ English website. It rightly stated that the Constitution has three categories of what can be referred to as regimes of emergency (the ultimate one is siege, implying war). It then said that the second category, which is the one the court has determined should have been adopted, is a “state of emergency”. In Spanish, the word in the Constitution is “excepción”, which can indeed mean emergency. However, there is the concept of state of exception (the literal translation), which is how I interpret this mechanism, and it is not a particularly pleasant state.

A state of exception is rooted in German political theory, that of one of the chief architects of the Nazi state, Carl Schmitt. Consequently, negative connotations can be attached to this as a legal mechanism, which may not have sinister purposes but nevertheless arouses a perception that there are.

More than just perception, as there is the reality. A state of exception can, for example, give police powers of entering homes without court authorisation and of detaining people for up to ten days without court supervision. Moreover, the media can be shut down.
So, are we saying that this is what this country would have wanted? A state of exception, a state of not the norm, and not the norm by a long way, far more so than a state of alarm?

My understanding of a state of alarm is that it is a mechanism for a situation such as a pandemic. Where there does seem to be a grey area is whether the confinement of people to their homes was admissible. Under a state of exception, there is no grey area, but this state is a mechanism to be used if there is a serious public order issue.

This was not the case in March last year, and the government has defended its measures as having been essential for public health, something with which it is hard to disagree.

Politically, there was no initial disagreement. It was only as the government sought extensions to the state of alarm that Vox challenged the mechanism, and it was Vox who first presented the legal claim against the state of alarm and in favour of the state of exception, which definitely implies tougher restrictions and limitations of personal freedoms. And yet Vox have been to the fore in denouncing the government for just these sorts of restriction and limitation.

It was a state of alarm, not emergency, and that is how it should be left. The government has been taken back by the court’s ruling and will respond to a situation at least partly motivated by politics and the procedural niceties of whether the government or Congress initiates authorisation.

A state of exception would be translated as emergency in just the same way as alarm has been, but it would be a heck of a lot more alarming.

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