Coronavirus State of Emergency as an Emerging state of Exception: Mutation or Constitutional Reform?

Abstract

States have found it necessary to respond urgently to the coronavirus crisis by applying their constitutional and legal frameworks well aware, however, that the solutions offered would not fit entirely within the categories of emergency law in relation to the hierarchy of laws, decrees and other administrative regulations and the consequent guarantee of fundamental rights and freedoms. This has led to unconfessed changes in their constitutions (constitutional mutations) by means of consensual practices that have not yet been subjected to constitutional control or by the interpretation of the constitutional courts that has led precisely to such mutations. The latter has fortunately not been the case in Spain. The Spanish Constitutional Court has established in its recent judgment of 14 July 2021 that the state of alarm does not provide sufficient cover for the limitations of fundamental rights, especially with regard to the confinement imposed on citizens, which has meant a general suspension of the right to freedom of movement rather than just a limitation of the same. Therefore, the Spanish government should have declared a state of exception, which only requires a simple majority for its approval in Congress. The Spanish Government has justified that the declaration of a state of alarm was the only way to face the crisis due to the compelling need to adopt urgent measures, since the state of exception needs the prior consent of Congress. The best solution to this constitutional challenge, according to this study, is the reform of the Spanish constitution by creating a new state of emergency, an intermediate figure between the state of alarm and the state of exception, which provides the government with a means of urgency, requiring parliamentary ratification after a short period of time, similar to that which existed under the provisions of the 1931 Spanish Constitution. However, this would imply an aggravated constitutional reform whose procedure is particularly complex both legally and politically in Spain. In this respect, very few constitutions in the world have been reformed due to the coronavirus crisis, but the Pennsylvania constitution is an excellent reference for the Spanish constitutional system both in terms of content and procedure.