Covid 19: Bedtime for Spanish Rule of Law

by Jorge Vila Lozano (May 2020)

Self Portrait with the Spanish Flu, Edvard Munch, 1919

The poor management of the initial stages of the crisis is a clear example of the irresponsible attitude of President Sánchez. He remained silent for too long, in spite of the January 31st warning from the World Health Organization, as well as the cancellation of the Mobile World Congress which takes place every February in the city of Barcelona.

It got worse. The Minister of Equality publicly encouraged the population to join The International Women’s Day march on March 8th. It was one of the worst anti-feminist acts in its history. Couldn’t it have been postponed? The first coronavirus statement made by President Sánchez, was done via his twitter account on March 10th, confirming that 1,622 persons had already tested positive for the coronavirus! We were already in the third phase of the pandemic process: the panic period as a result of the government’s negligence to take prompt action.

 

Our scientific community is hopeful that an effective vaccine or antiviral (decoding the Covid-19 genetic info) will be quickly developed. German Lab CureVac, among others in the US and China, are currently dealing with an experimental vaccine, but setbacks in delivering the patent are starting to arise.

 

What about the rule of law? The state of alarm was approved on March 14th and is to be controlled and supervised by the Congress. Fundamental rights such as freedom of movement or entrepreneurial freedom can be limited but not deprived. The intervention of privately-run companies (i.e. hospitals or medical facilities) to address the crisis will henceforth be practicable.

 

The state of siege—in conjunction with the two other states mentioned in article 116 of the Constitution—is the next step towards facing the chaos. Essentially the state of siege needs to be declared by Congress, under the prior submission by the Government. In addition to emergency legal prerogatives, the Executive can also suspend guarantees of due process provided to the detainee (e.g. in case of riots and shortage of resources and commodities in the domestic market). The Congress must list what sorts of criminal offences are included in the jurisdiction of military courts.

 

Proclamation of states of alarm, emergency and siege shall not modify the principle of liability of the central and regional governments, as recognised by the Constitution and the law. Accordingly, there is a direct material responsibility of the State for wrongful damages and its negligence by not declaring the state of alarm on time. The families and victims of a deceased could sue the Government in court by filing a civil class action challenge. At present, some of them have filed criminal complaints against those suspected of having committed crimes of prevarication on this issue. Those charges may include manslaughter and injuries caused by wanton or reckless conduct.

 

Risk and pandemic mismanagement will truly have consequences in the international sphere, apart of the common struggle against Covid-19.

 

 

If no international treaty exists to enforce China to repair the damage caused to the rest of the world, the only option we are left with is to rely on the Chinese Government compliance programs aimed at preventing people from contagion.

 

Last but not least, this pandemic has rendered Spain more united and stronger than ever.

 

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Jorge Vila Lozano a Spanish lawyer with a Ph.D. in law and 20 years of litigation experience in the European Union courts. He lives in Madrid.

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