The States of Alarm, Emergency and Siege

Abstract

This study carries out an analysis of the States of Exception in Spain the latest forty years under the Spanish Constitution of 1978 and the regulation established by the Spanish Constituent Power and Legislator in view of the Spanish constitutional history and the comparative Constitutional Law. In particular, it is focused in the only occasion in which emergency powers were enforced in Spain: the state of alarm declared by Royal Decree 1673/2010, issued 4th. December 2010, and its prorogation, previously authorized by Congress, by Royal Decree 1717/2020, issued 17th. December, in response to the closing of the Spanish air space due to the massive abandon of their obligations by the air traffic controllers. The study concludes that a state of alarm was declared, whereas the Law required declaring a state of exception; additionally, the measures imposed by the Government, without the previous Agreement voted in Congress as required by the Constitution– were those typical of the state of siege (martial law). The study deals with the parliamentary procedure as well. It is also highlighted that jurisdictional and constitutional control of the Decrees finally did not really take place. In view of the above arguments, it is suggested to reform the constitutional regulation of the states of exception to cover those compelling and urgent crisis which do not allow calling for a plenary session in Congress, following the path of the Spanish Constitution of 1931.