"Does this not raise a question as to how one defines fundamental rights?"

"Does this not raise a question as to how one defines fundamental rights?" | T. AYUGA

Andrew EdePalma02/10/2021 09:48
TW
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In May, when the Balearic government was seeking an extension to the curfew, the Prosecutor’s Office opposed this. Citing the defence of the rights of citizens, the office was “fulfilling our function”. Balearic High Court approval led the Prosecutor to appeal the decision to the Supreme Court.

The judges in Madrid overruled the Palma court. The curfew would have represented a violation of fundamental rights, the state of alarm - which allowed the curfew - having ended. In August, the Prosecutor again challenged a government measure - to make the Covid certificate a requirement for attending mass events. It believed that this was disproportionate in affecting personal privacy while it argued that it had not been proven that people who had been vaccinated could not infect others. Meanwhile, it did not oppose the certificate being used for entering care homes; there was a specific health risk.

Coming up to date and the Prosecutor has given its support to the certificate for entry to nightlife establishments, accepting a Supreme Court conclusion in respect of an appeal by the Galician government that claims of violation of privacy were “tenuous” and that the certificate was justified on public health grounds.

While I agree with the Supreme Court and the Prosecutor, does this not raise a question as to how one defines fundamental rights? Scale can’t be a factor, as large clubs can bring together similar numbers as mass events. Or is it a case of being pragmatic, the court’s view being that the measure is proportionate?