Name of the act/s*

Decree of the President of the Republic No 14-A/2020 of March 18: declared the state of emergency, on the basis of a situation of public disaster.

Decree of the President of the Republic no. 17-A/2020 of April 2: renewed the declaration of the state of emergency, on the basis of a public calamity situation.

Decree of the President of the Republic no. 20-A/2020 of April 17: stablished the second renewal of the state of emergency declaration, on the basis of a situation of public calamity.

Subject area

Constitutional law with impact on multiple areas

Brief description of the contents of the act

The state of emergency was declared to address the COVID-19 pandemic after Government first tried to deal with it under the existing legislative framework (the Legal Framework of Civil Protection - Law No. 27/2006, of July 3; the Legal Framework on Public Health Surveillance System - Law No. 81/2009, of August 21, and the Basic Health Law - Law No. 95/2019, of September 4) and having enacted the Decree-Law No. 10-A/2020, of March 13, that establishes exceptional and temporary measures concerning the epidemiological situation of the new Coronavirus.

On 18 March, the President of the Republic declared the state of emergency, under Article 19 (suspension of the exercise of rights) of the Constitution, having previously heard the Government and obtained the authorisation of the national parliament (Assembleia da República - Resolution No. 15-A/2020, of March 15 [the Parliament maintained face-to-face meetings once a week, operating with just one-fifth of the members, the quorum limit]. The declaration of the state of emergency can be grounded in a public calamity and involves the “suspension of the some of the rights, freedoms and guarantees that are capable of being suspended”, “to that which is strictly necessary for the prompt restoration of constitutional normality” (Articles 19, 134(d), 138, 161(l) and 197.1(d) of the Constitution).

The state of emergency was explained by the “need to strengthen the constitutional coverage of more comprehensive measures which need[ed] to be taken to combat this public disaster” (paragraph 5 of the first Presidential decree). The Decree of the President of the Republic No 14-A/2020 of 18 March suspended partially: i) the right of movement and fixation anywhere in the national territory; ii) the private property and economic initiative; iii) workers’ rights; iv) the international movement; v) the right of assembly and demonstration; vi) the freedom of religion in its collective dimension; vi) and the right of resistance.

The Decree of the President of the Republic no. 17-A/2020, of April 2 [authorised by the Parliament Resolution No. 22-A/2020, of April 2], highlighted that, having the health authorities “determined the transition from the containment phase to the mitigation phase”, it was necessary to increase “the level of prevention” or otherwise the effort made would be wasted (paragraph 7). Besides the rights mentioned in the first decree, it suspended partially the freedoms to learn and teach and the right to data protection, and reinforced the restrictions of the freedom of movement and workers’ rights (for instance, suspended the right of trade union associations to participate in the drafting of labour legislation to the extent that the exercise of such right may represent a delay in the entry into force of urgent legislative measures" and extended the suspension of the right to strike). It also stated that exceptional and urgent measures could be taken to protect citizens deprived of their liberty in enforcement of a sentencing decision, as well as to protect prison staff. The second renewed declaration of state of emergence (Decree of the President of the Republic no. 20-A/2020 of April 17, authorised by the Parliament Resolution No. 23-A/2020, of April 16) renewed the previous declarations on broadly similar terms, but restored the right of workers’ committees, trade unions and employers’ associations to participate in the drafting of labour legislation and did not stated new exceptional measures for those deprived of their liberty.

Each declaration last for fifteen days, the time limit laid down in the constitution (Article 19(5)). The declarations of the state of emergency, besides the respective grounds, the specification of the rights suspended, defined the framework of subsequent public intervention. The three presidential decrees were followed by, respectively, the Decree of the Presidency of the Council of Ministers n.º 2-A/2020, of March 20 (sets out the execution rules regarding the declaration of the state of emergency made by the Decree of the President of the Republic No 14-A/2020, of March 18); the Decree of the Presidency of the Council of Ministers n.º 2-B/2020, of April 2 (regulates the extension of the state of emergency decreed by the President of the Republic no. 17-A/2020, of April 2) and Decree of the Presidency of the Council of Ministers No. 2-C/2020, of April 17 (regulates the extension of the state of emergency declared by the Decree no. 20-A/2020 of April 17). The state of emergency ended at 11:59 p.m. on May 2, 2020.

On 30 of April, the Government, under the Basic Law for Civil Protection, declared the situation of calamity, establishing, among others, “limits and conditions for circulation and the rationalization of the use of public services” (Resolution of the Council of Ministers No. 33-A/2020). It was extended by the Resolution of the Council of Ministers No. 38/2020, of May 17; by the Resolution of the Council of Ministers No. 40-A/2020, of May 29; by the Resolution of the Council of Ministers No. 43-A/2020, of June 12. The Resolution of the Council of Ministers 51-A/2020, of June 26, declared a situation of calamity (at some Lisbon’ parishes and municipalities of Lisbon’s Metropolitan Area), the situation of contingency at the Lisbon’s Metropolitan Area, with the exception of the municipalities and parishes covered by the state of calamity, and the situation of alert in all continental Portugal, with the exception of the Lisbon Metropolitan Area (“considering the nature of the events to be prevented or faced and the severity and extent of their current or expected effects” – Article 8.º of the Law on Civil Protection). The Resolution of Council of Ministers nr. 53-A/2020, of July 14, declared again in similar terms a situation of calamity, contingency and alert within the context of the COVID-19 pandemic, until 11:59 p.m. of 31 July 2020.

Comment

1. From the constitutional state of emergency to the state of calamity and the emergency legislation

Through the presidential decrees above mentioned, it was the first time in the Portuguese democracy, under the Constitution of 1976, that was declared the state of emergency. Although this declaration has a strong legal base in the Constitution and the constitutional procedure, rules of competence and time limits were observed, the regulatory framework to prevent and combat the COVID-19 pandemic raises several questions and critics related to legality, legal certainty, proportionality, effective remedy and transparency issues. Among these, it can be pointed out the following:

a)      Problems with the respect of Assembly's legislative reserved competence and related to the adoption of several administrative regulations or orders instead of legislative acts.

Before the first declaration of state of emergence, the Decree-Law No.10-A/2020, of 13 March, established exceptional and temporary measures relating to the epidemiological situation of the COVID 19. It was ‘ratified’ ex post by the Law No. 1-A/2020, of 19 March (establishing exceptional and temporary measures to respond to the epidemiological situation caused by coronavirus SARS-CoV-2 and COVID-19 disease), inasmuch, unless it also authorises the Government to do so, the Parliament has exclusive competence to legislate on the following matters Rights, freedoms and guarantees (Article 165(1)-b). Nevertheless, the Constitution forbids retroactive restrictions of fundamental rights (Art. 18(3)).

The above-mentioned Decree-Law No.10-A/2020 has been amended 13 times and rectified 2, six and on time, respectively after the declaration of state of emergence ceased to have effect.

Other multiple decree-laws were enacted, outside the sphere of execution of the state of emergency declaration; and in general, all contain many references to ministerial ordinances, that entail broad delegations of power.

The presidential declaration of state of emergence enables limitations on rights, freedoms and guarantees in an extension and in a prompt way by the Government that the ordinary legislative procedures do not enable, but under the Article 19(7) of the Constitution, the declaration of state of emergency may not affect the application of the constitutional rules concerning the competences and the modus operandi of the entities that exercise sovereignty.

b)     The huge and volatile volume of acts and administrative regulations – modified and rectified many times - that has been adopted creates opacity, uncertainty and a sense of unreliability (see https://www.dgae.gov.pt/gestao-de-ficheiros-externos-dgae-ano-2020/legis_pt-en_covid19_20200602.aspx; https://www.safecommunitiesportugal.com/emergency-legislation/).

c)      The declaration of state of calamity, although implying a less intensive list of restrictions, enabled the Government to decide alone and through resolutions (administrative regulations) rather than by legislative acts.

The state of calamity can be declared by the Government when there is the need to adopt exceptional measures to prevent, react to or restore normal living conditions in the areas affected by a “disaster”. For instance, it has determined measures like: i) the compulsory confinement for sick and actively supervised persons; ii) prohibition of events or gatherings with more than 10 people; iii) funerals only in the presence of relatives; iv) in public transport, buses with driver’s cabin; and disinfectant gel dispensers (maximum capacity of 66%); v) in public services, decentralized counters to assist the public (service by appointment). The use of warning, contingency and calamity declarations depends on the intensity of the situation and are gradual as to the intensity of the limitations that allow (Article 3, 9, 14, 17, 19, 21 of the Legal Framework of Civil Protection).

d)     Among the emergency legislation that created exceptional regimes stands out the exceptional regime of public procurement procedures launched to prevent, control, mitigate and treat the epidemic infection caused by COVID-19. It has exacerbated the lack of competition and the lack of transparency of Portuguese regulations (Pedro Telles, Portugal establishes exceptional procurement regime due to COVID-19 - http://www.telles.eu/blog/2020/3/17/portugal-establishes-exceptional-procurement-regime-due-to-covid-19; and Communication from the Commission Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis 2020/C 108 I/01, C/2020/2078 - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020XC0401%2805%29). It should also be highlighted that the Decree-Law no. 19-A/2020, of April 30, established an exceptional and temporary regime for the financial rebalancing of long-term enforcement contracts in the context of the COVID-19 pandemic, namely setting aside non-contractual liability of the State (as compensation for sacrifice) for damages caused by acts of the State or any other public entity aimed at preventing and combating COVID-19, within the scope of the powers vested by public health and civil defence legislation or as part of the emergency state.

2. Portuguese response to the health crisis, the rule of law and social state

Regarding the authorities’ responses to a health crisis, the rule of law and the social state, besides the mentioned legality, certainty and transparency issues, it emerged clearly in the Portuguese legal response to the health crisis the following problems:

a)      Problems related to the right to an effective remedy.

The right of access to a court to “defend rights, freedoms and guarantees that have been harmed or threatened with harm by any unconstitutional or illegal measures” is expressly safeguarded in the Article 6 of the Regime of the state of siege and of the state of emergency - Law 44/86, of September 30, as amended by Organic Law No 1/2011 of 30 November 2011 and by Organic Law No 1/2012 of 11 May 2012. For instance, The Ponta Delgada Court, in a decision of May 16, granted a petition for immediate release (habeas corpus) made by a petitioner against the imposition of quarantine in hotels by the Government of the Azores [is an autonomous region, with its own political and administrative statutes and self-government institutions]), due to the national Parliament's competence on the matter (https://comarcas.tribunais.org.pt/comarcas/noticia.php?com=acores&id_noticia=690).

Apart from this case, there is not any noticeable cases related to the emergency legislation. Courts has not yet actually exercised the power to oversight actions taken by the executive or omissions in the public health context. Furthermore, the functioning of the courts has significantly decreased, with the general rule of suspension, after March 9, of procedural deadlines until the June 3rd (Law 16/2020, May 29). Only the continuity of urgent processes, namely those related to minors at risk, to urgent educational guardianship, to imprisoned defendants, to some injunctive proceedings… were secured.

The justice system has showed not to be technologically prepared to continuing functioning and that it cannot deliver outcomes without increasing delay.

b)     Problems with access to public services.

The fragile evolution of the Portuguese State towards a “digital welfare state” (United Nations, Report of the Special rapporteur on extreme poverty and human rights, A/74/493, 11 October 2019 - https://undocs.org/A/74/493) has meant that the continuity of many services has not been sufficiently ensured, such as ordinary primary and secondary health care, protection of children at risk; social and educational responses; immigrants services (but National Migrant Integration Support Centres were obliged to remain open and provide in-person services during the state of emergency), inspections (except the Working Conditions Authority – see, for instance, Order No. 4756-B/2020, of April 20, that request of inspectors and senior technicians necessary to strengthen the inspection powers of Working Conditions Authority) and, in general, services that carry out administrative tasks that condition the economic private activities.

3. The meaning of declaring a state of emergency in an uncertain context as to its final term

It is stressed that the purpose of constitutional regulation of emergency situations is to preserve the constitutional normality (Article 19(8) of the Constitution). So, once the emergency situation disappeared, the normal regime of fundamental rights returns, as well as legal normality. However, it must be asked what this comprehension means when the emergency situation extends over time and its final term is uncertain.

As well, it must be asked what legal approach and instruments are really necessary to address heathy situations like COVID-19 pandemic. It has been discussed how open the presidential declaration of emergency can be, the extensive emergency powers of Government and the adopting of legislation and social and economic measures that does not entirely fit within the emergency framework. These questions are useful, especially if we bear in mind that Portuguese response to prevent and combat the COVID-19 pandemic has used three legal bases and models (Tom Ginsburg e Mila Versteeg, “States of Emergencies: Part I”, April 17; and “States of Emergencies: Part II”, April 20 - Harvard Law Review Blog. Retrieved from URL: https://blog.harvardlawreview.org/states-of-emergencies-part-i/), and not just one, to cope with COVID-19: i) the declaration of state of emergency under the Constitution; ii) the existing legislation dealing with public health or national disasters; iii) and passed new emergency legislation.

Due to the extent and content of the legislation, it is worth asking whether it would be necessary to have exceptional or derogatory legislation and legislation issued in a less transparent way if public institutions and the public administration were better equipped or were better prepared.

Secondary sources/ doctrinal works (if any)

-        Gomes, Carla Amado; Pedro, Ricardo: Direito Administrativo de Necessidade e de Exceção, AAFDL, 2020.

-        Imparato, Emma A.: Il Portogallo al banco di prova dell’emergenza sanitaria mondiale, DPCE Online, [S.l.], v. 43, n. 2, july 2020. ISSN 2037-6677. Available at: <http://www.dpceonline.it/index.php/dpceonline/article/view/974>. Date accessed: 21 july 2020.

-        Lomba, Pedro: The Constitutionalized State of Emergency: The Case of Portugal, VerfBlog, 2020/4/15, https://verfassungsblog.de/the-constitutionalized-state-of-emergency/, DOI: https://doi.org/10.17176/20200415-212705-0.

-        Various authors, Estado de Emergência - COVID-19, Implicações na Justiça - http://www.ministeriopublico.pt/pagina/estado-de-emergencia-covid-19-implicacoes-na-justica-e-book-0.

-        Violante, Teresa; Lanceiro, Rui T.: Coping with Covid-19 in Portugal: From Constitutional Normality to the State of Emergency, VerfBlog, 2020/4/12, https://verfassungsblog.de/coping-with-covid-19-in-portugal-from-constitutional-normality-to-the-state-of-emergency/, DOI: https://doi.org/10.17176/20200412-152458-0.

*Act citation /year and number

2020

Enacted by

President of the Republic

Official link to the text of the act

Link to several of the acts mentioned: https://www.safecommunitiesportugal.com/emergency-legislation/; https://www.dgae.gov.pt/gestao-de-ficheiros-externos-dgae-ano-2020/legis_pt-en_covid19_20200602.aspx.