The state of exception is a special regime that the government of the country can declare to face special situations and solve them. It is usually used on very extraordinary occasions, having the ability to affect the rights and freedoms of citizens justifying its measure as beneficial for a specific moment.
This Wednesday, the Constitutional Court has declared illegal the state of alarm decreed by Pedro Sánchez to stop the Covid, and tells the Government that when it comes to the suspension of fundamental rights, what it should have done was to decree the state of exception.
The concept was first used, according to political theory, by the German jurist Carl Schmitt, a renowned political scientist who was designated an enemy by the Nazi party and who based his writings on the practical execution of political power over citizens.
Regarding the state of emergency, Carl Schmitt wrote that it was an extreme situation that the State must take, transcending the state of siege in order to protect the common good of the citizens.
What does the Spanish Constitution say?
According to our Constitution, in the Organic Law 4/1981 established in the first article of the same, it is made clear that the state of siege, exception or alarm will be declared by the Government by means of a decree previously approved by the Council of Ministers.
This state of exception is in force, according to the Organic Law “when extraordinary circumstances make it impossible to maintain normality through the ordinary powers of the competent authorities .”
This Organic Law also has its point in the Spanish Constitution in its Title V, article 116, which stipulates that:
-
An organic law will regulate the states of alarm, emergency and siege, and the corresponding powers and limitations.
-
The state of alarm will be declared by the Government by means of a decree agreed in the Council of Ministers for a maximum period of fifteen days, reporting to the Congress of Deputies, meeting immediately for that purpose and without whose authorization said period may not be extended. The decree will determine the territorial scope to which the effects of the declaration extend.
-
The state of exception will be declared by the Government through a decree agreed in the Council of Ministers, with prior authorization from the Congress of Deputies. The authorization and proclamation of the state of exception must expressly determine the effects thereof, the territorial scope to which it extends and its duration, which may not exceed thirty days, extendable for another equal period, with the same requirements.
-
The state of siege will be declared by the absolute majority of the Congress of Deputies, at the exclusive proposal of the Government. Congress will determine its territorial scope, duration and conditions.
-
The dissolution of Congress may not be carried out while some of the states included in this article are declared, the Chambers being automatically summoned if they are not in session. Its operation, as well as that of the other constitutional powers of the State, may not be interrupted during the term of these states.
Once the Congress has been dissolved or its mandate expired, if any of the situations that give rise to any of said states occurs, the powers of the Congress will be assumed by its Permanent Deputation. -
The declaration of states of alarm, emergency and siege will not modify the principle of responsibility of the Government and its agents recognized in the Constitution and in the laws.
What are the effects of a state of exception?
The declaration of this state of exception must be motivated by serious alterations in the fundamental rights of the people and in the functioning of the State institutions.
It will therefore mean a radical cut in people’s lives for at least 30 days, extendable if the Government deems it necessary.
Alarm, exception and siege
During this last year we have seen how the Government has declared a state of alarm on several occasions, something that had already happened in our country before. The first time it was declared was in 2010 when the essential public service of air transport was paralyzed.
On this occasion, this stoppage lasted 43 days affecting numerous flights and passengers from all over Spain and in which the Government had to intervene two buildings to control: the Spanish airports and the air navigation.
The other three times that the state of alarm has been decreed has been for health reasons associated with the coronavirus pandemic that our country is still experiencing.
With regard to the state of siege, which is motivated by an insurrection or act of force against the sovereignty or independence of Spain, and which could be declared by the Congress of Deputies, prior to a proposal to the Government, it has not been declared at any time in our country. The last time it was in force was in 1939 when the Government ended the Civil War.
For its part, the state of exception has not been used in Spain since the 1978 Constitution came into force. The last time it was decreed was on July 25, 1975, where the Government had to quell the terrorist acts that occurred in Vizcaya and Guipúzcoa.
