Alexis Texas In Lycra

The possible illegality of a state of alarm by the government decreed

Hi all,

First I would like to apologize for the lateness in submitting this entry, I had prepared a few days ago, but for various reasons have not been published until now.

What I intend to today's post is to try to shed some light, especially considering people who have no legal knowledge on what this the state of alarm that the government ordered about 15 days ago because of the wildcat strike of air traffic controllers, that is, knowing what , what I wanted to use the Government and if your approach was correct under the laws and the Constitution without evaluating its political reasonableness.

As to its nature, is a state of alarm an exceptional state that the Constitution referred to in art. 116 paragraph 1 and 2, which only indicates that it will be an Organic Law which regulates it (a law must be approved with certain enhanced parliamentary majority) and that "the state of emergency is declared by the Government by decree agreed in Council of Ministers for a period of fifteen days, informing the Congress of Deputies, which met immediately, and without whose consent shall not be extended that deadline. The decree shall specify the territorial scope to extend the effects of the declaration . Therefore, since must go to the Organic Law 4 / 1981, 1 June, the states of alert, emergency and site, we found that the regulation own Alrama State is contained in the arts. 4 to 12 of that law, I will not reproduce here for reasons of space and where I will not delve into this point because they are easy to understand for anyone to read.

Regarding the Government's intention to decree it, we can highlight two: a) to "replace" the civilian controllers who did not attend his post by military controllers (which they could not do without ) and b) to enable criminal sanctions for drivers' strike covert. " These possibilities are reflected in the aforementioned Law, for the sake models following items:

1. art. 9.1 in relation to civilian drivers put under direct government control, the competent authority referred : "On the declaration of a state of alarm all the civil authorities of public administration of the territory affected by the declaration, members of the police forces of the Autonomous Communities and local government, and other staff and service workers the same , be under the direct orders of the authority jurisdiction as is necessary for the protection of persons , property and places may impose extra services for its duration or nature ".
2. Article 10, for the purposes of criminal punishment and administrative power Civilian controllers to "dissidents": "Uno.El failure or resistance to the orders of the competent authority in the state of alarm will be punished in accordance with the provisions of the law. Two. If these acts were committed by officers, the authorities may immediately suspend the exercise of their duties, from, in case the fault of both the judge and notify the immediate superior appropriate for the purposes of disciplinary proceedings. "
3. Article 11, particularly paragraph e), in order to be able to use military personnel to replace civilian controllers"

"Notwithstanding the provisions in the previous article , the decree declaring a state of alarm, or events during their lifetime are issued, they shall consider the following measures:

• a) Limit the movement and stay of persons or vehicles at times and places determined, or conditioned on the fulfillment of certain requirements.
• b) temporary requisition practice all kinds of goods and impose mandatory personal benefits.
• c) intervene and temporarily occupy industries, factories, workshops, farms or premises of any nature, except private homes, taking notice to the ministries concerned.
• d) limit or ration the use of services or the use of staples.
• e) Provide the necessary orders to ensure market supply and operation of services and production facilities affected by the paragraph D of article four . "
  

; working air controller Madrid-Barajas

In my opinion, the most important point is the last, for if the government has saved the need to respect the Constitution and laws. On respect for the Constitution, there seems no serious problems, since the Constitution, as we have seen, only governs who should decree (the Council of Ministers), the maximum duration (15 days) and the possibility of extension with authorization of Congress, all requirements met. However, with regard to respect for the special rule governing the state of alarm (the Organic Law that we have mentioned before) arise and considerable doubt respecting the Government to the letter of the law. Looking at the art.4 of the Organic Act, we can see that there include reasons why you can declare a state of alarm, they are limited grounds and numerus clausus , or what is, that out of those cases can not do such a thing are:

"The Government, in exercise of the powers conferred on it by Article 116.2 the Constitution may declare a state of alarm, in whole or part of the country , whenever any of the following serious alterations of normality:

1. disasters, public calamity or misfortune, such as earthquakes, floods, urban and forest fires or major accidents.
2. health crises such as epidemics and severe pollution situations.
3. cessation of essential public services to the community, if not to ensure the provisions of Articles 28.2 and 37.2 of the Constitution , and either of the other circumstances or situations contained in this article . Situations
4. shortages of basic necessity. "

pointed Bold paragraph c), it seems that is where the government is based. That airspace security is an essential public service is beyond all doubt, and have not been guaranteed the provisions of ss. 28.2 and 37.2 of the Constitution (relating to minimum services) is equally glaring. What happens is that art. 4, c) not only requires a service is stopped, as some have argued, but also it also possesses one of the other circumstances of art. 4-paragraphs a), b) d) - which have evidently not been given. It should be noted that the rule says, "and", not "o", and in the interpretation of the standards except question of judicial interpretation has not been 8que), should be getting the wording of the Act and most state of alarm when accompanied by other restrictions on rights to citizens and, sinsisto in this is an exceptional state, which for now has never been Decaro in Spain in the democratic period.

From some posts related to the party that supports the government and from some related legal authorities has also defended the position taken by the Executive. It is true that the image and public appreciation of the civilian drivers and chaos generated by your wild and uncontrolled strikes can make understandable that nobody has spoken out very strongly against this decision (except the United Left, which said it is unlawful). Moreover, can be even agree that had to be done about the situation and against the drivers (who had other means of protest), even replacing the privileged, ugly mlavados and civil air traffic controllers attractive military controllers (in photo). But not at any price.

is not acceptable in a democracy so deliberately assume that famous expression of the end justifies the means . Although the cause to deserve it, the rule of law revolves around the idea of \u200b\u200brespect for the rules, they are there for something, to avoid arbitrariness in the decisions of significance intense social and legal. Assume that the state of alarm may be issued against the law interpreting is the same as assuming that defeating ETA commands can be organized and armed groups who act outside the law Although this is already assumed, coincidentally, during the previous socialist government.

also seems unreasonable to extend, as seems to want the Government to date, the state of alarm for this Christmas, as a solution to ensure aviation safety. And it is not because one day the military drivers should leave their posts for civilians to return to them, and I doubt the claims of past have changed by then.

Given that the Government should not give in to blackmail of any lobby, one can not forget that at some point must either remove the figure of the driver, or negotiate with them, because the conflict may be postponed, but will not disappear by decree Alarm States each bridge or vacation time. Otherwise, if the drivers are going to end military retirees AENA, end up seeing images such as the end of this post.

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