CORONAVIRUS

What if Spain’s state of alarm comes to an end on May 9?

If PM Pedro Sánchez does not secure congressional approval to extend the extraordinary measure on Wednesday, experts say confinement orders will no longer be legally binding

An elderly couple observes a man disinfecting the streets of Vitoria in Spain’s Basque Country on Monday.
An elderly couple observes a man disinfecting the streets of Vitoria in Spain’s Basque Country on Monday.Lino Rico

Spanish Prime Minister Pedro Sánchez will on Wednesday ask Spain’s lower house, the Congress of Deputies, to vote in favor of a two-week extension to the state of alarm, which was implemented in a bid to halt the spread of the coronavirus. The state of alarm has been in place since March 14, when confinement measures were first imposed. Since then, the extraordinary measure has been extended three times, and is currently set to come to an end on May 9.

Sánchez, however, cannot extend the state of alarm without the approval of Congress. The coalition government led by his Socialist Party (PSOE) and junior partner Unidas Podemos does not count on a working majority in Congress, meaning he needs votes from other groups to pass legislation. But it is not clear whether the prime minister will have enough votes on Wednesday to secure the approval of the extension.

Negotiations are underway to garner support for the initiative, which will require a simple majority of more yes than no votes to get greenlighted. On Tuesday afternoon, the far-right Vox and the Catalan separatist parties Together for Catalonia (JxCat), Catalan Republican Left (ERC) and Popular Unity Candidacy (CUP) had made it clear that they were planning to vote against.

If the main opposition Popular Party (PP) decides to join this group, there will be 164 “no” votes in the 350-strong chamber, although so far the conservatives have signaled that they might abstain. The 10 lawmakers for the center-right Ciudadanos have yet to say which way they will vote, but support seems possible. And the Basque Nationalist Party (PNV) seems to favor an abstention.

There is no doubt that [the government] would lose the ability to restrict the movement of citizens
Gerardo Pérez, professor of constitutional law at La Laguna University

If Sánchez fails to secure approval on Wednesday, almost all the measures the government has introduced to address the coronavirus crisis would be immediately dissolved. But would this mean an end to the confinement orders and to the ban on travel? What alternatives are open to the government?

According to several legal experts consulted by EL PAÍS, it must be assumed that all orders decreed under the state of alarm on March 14, as well as regulations set out in later decrees which are only valid under the exceptional measure, will come to an end if the state of alarm is not extended. “All this content falls apart, it stops existing,” explains Lorenzo Cotino, a professor of constitutional law at Valencia University, and the coordinator of the Public and Constitutional Law and Covid-19 Observatory.

That means the emergency measures to combat the coronavirus crisis will expire between May 9 and May 10, if an extension is not secured. “And we will not have a legal framework to establish order,” said Transportation Minister José Luis Ábalos on Monday. “There is no alternative. [Not supporting the extension] is like sentencing us to chaos.”

The PP leader Pablo Casado argued on Monday that the government does have an alternative. It could, for example, use the National Security, Civil Protection or Public Health laws, or reform them as needed, while maintaining centralized control and the restriction on movement. But the government says that this would not be legally feasible.

Gerardo Pérez, a professor of constitutional law at La Laguna University, explains that under the PP’s proposal not all “public workers would be working under the central government.” It would be the end of the single chain of command. Indeed, regional governments in Catalonia and the Basque Country want an end to the state of alarm precisely so that they can regain the powers they lost when the measure came into effect in March.

There are laws that establish the possibility of confinement, but only if those people are sick
Gerardo Pérez, professor of constitutional law at La Laguna University

The end of the state of alarm raises concerns about the future of the shelter-at-home orders and the ban on travel between provinces, which are both considered by the Health Ministry to be key to stopping the coronavirus pandemic. According to Pérez, the government will no longer be able to implement these measures if the state of alarm is not extended. “There is no doubt that [the government] would lose the ability to restrict the movement of citizens because it is linked to a situation of exceptionality,” he explains.

The end of the state of alarm may also affect whether fines can be issued to those who break the lockdown rules. Interior Minister Fernando Grande-Marlaska argued that the royal decree acts as the prior warning needed to sanction people who leave confinement without justification.

But does that mean the Spanish government will not be able to take any action if it cannot extend the state of alarm? “No,” says Pérez. “There are laws that establish the possibility of confinement, but only of people who are sick.”

Cotino responds that “we would have to see if alternatives exist to give the government an advantage.” Under the Spanish Constitution, the government does not need congressional approval to pass the first state of alarm. According to the professor, the Constitution does not say anything about whether the government can decree a brand new state of alarm, which, not being an extension, would not need to be approved by Congress.

The National Security Law could also be used as a catch-all resource to fall back on, says Cotino, who adds that some regions, such as Murcia and Catalonia, issued confinement orders and business closures. “But the laws that were used are not intended to be applied to the entire population.”

English version by Melissa Kitson.

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