From constitutional emergency to administrative calamity: Covid-19 regulation in Portugal
Catarina Santos Botelho[1]
There is little doubt that the Covid-19 pandemic is challenging traditional legal arenas. As I am writing this report, Portugal is no longer under the constitutional framework of the emergency state, notwithstanding being under an administrative state of calamity. I will concisely describe the political and constitutional events over the last two months.
On March 18th, for the first time in forty-six years of democracy, the Portuguese President declared the state of emergency. It is relevant to mention that the state of emergency was declared within two weeks of the first confirmed case of Covid-19.
Portugal consecrates the state of emergency as constitutional self-protective mechanism aimed at restoring constitutional normality. European history displays how emergency powers can be manipulated to transform democracy into authoritarianism.[2] The notion of an unlimited state of emergency recalls societal, psychological, and constitutional memories that still haunt present times. In fact, as responsibility for the burning of the Reichstag’s (German federal parliament) building in Berlin was attributed by the Nazis to the Communists, Adolf Hitler persuaded the President of the Reich to indefinitely suspend fundamental rights that were theoretically ‘resistant’ to dictatorship (the rights to individual freedom, asylum, inviolability of correspondence, assembly and demonstration, private property, freedom of association and freedom of expression).
Having absorbed such harsh constitutional history lessons, modern European constitutional texts consecrate several obstacles to the suspension of the exercise of fundamental rights. In this vein, Portugal opted for a refined constitutional design: the constitution limits the rights that can be suspended, it imposes a time-limit, and the obligation to respect proportionality (articles 19 and 138 of the Portuguese Constitution).
At the same time, to avoid a unilateral suspension of rights, the Portuguese constitution consecrates a mechanism of mutual control. Thus, the state of emergency is agreed between the three main political institutions: The President, the Government, and the Parliament. The Portuguese political system is mostly characterized as semi-presidential, since a directly elected president exists alongside a prime minister who is politically responsible to parliament.[3] Checks and balances are provided by the following formula: the President declares, the Parliament authorizes, and the Government executes the state of emergency.
In my perspective, the declaration of emergency was inevitable and necessary to contain the spread of the virus and to overcome constitutional issues that would derive from implementing a wider range of restrictive measures. On March 18th, the presidential decree enacted the partial suspension of certain fundamental rights, such as cross-border circulation, the right to strike, and the rights of assembly and demonstration. Subsequent to the presidential declaration, the Government approved a decree that placed different groups of citizens under the duties of compulsory confinement, special protection and home retreat.
As the declaration of emergency is constitutionally limited to fifteen days, on the 2nd of April the President decided to renew the state of emergency. The President held that the emergency declaration was the wisest choice, as it was able to flatten the coronavirus curve. In addition to extending the previous declaration of emergency, the President also authorized the suspension of the freedoms to learn and teach, the right to data protection, and reinforced the restrictions on freedom of movement during the Easter period. In my perspective, if in the first period of the state of emergency the presidential declaration was mainly preventive, its renewal was clearly reactive.
On April 17th, the President renewed, for the second time and until the 2nd of May, the state of emergency, justifying the extension with the need to give the Government time to define criteria for a trustful reopening of the society and the economy. In a message to the country, the President stated that he wanted it to be the last renewal of the state of emergency. Probably, the political powers took into consideration the incertitude of the state of emergency’s deadline, which could trigger people’s anxiety.[4]
The terms of the new extension of the declaration of emergency were quite similar to the previous one. However, this decree enabled the possibility of reactivating services, businesses and establishments, in a “gradual, phased, alternate and differentiated manner”. Furthermore, the decree reconsidered the application of the restrictions to the right to travel, and, quite surprisingly, allowed the celebration of the Workers’ Day (1st of May).
As the constitutional emergency legislation was adopted in a haste to address the crisis, there are some constitutional issues worth mentioning. First, the presidential decree of emergency provides the normative framework under which the Government may intervene. Yet, such decrees were too general and did not sufficiently determine the conditions under which the Government could restrict some rights and freedoms. As a result, Portuguese scholarship is currently debating the constitutional design of presidential decrees of emergency.[5]
Second, what we have been witnessing in Portugal – unlike our neighbors in Spain[6] – is a dutiful and well-intentioned parliamentary approval of the measures our Government deems to be appropriate. Third, Portugal still struggles to implement policies based on evidence, hence the lack of enough scientific expertise raises pertinent constitutional questions of political accountability.[7]
Notwithstanding those shortcomings, I believe that the Portuguese Government deserves credit for having tackled problems quickly and effectively, and for communicating its management of the crisis to the public quite openly. The decision to grant (until June 30) migrants and asylum-seekers with pending applications the rights to healthcare, housing and social support should also be praised.[8]
On May 3rd, a resolution of the Council of Ministers declared a national state of calamity for a period of fifteen days (renewable), allowing a slow economic reopening and the relaxation of some of the previous restrictions. As the President and the Government were unwilling to extend the state of emergency, therefore avoiding its trivialization, Portugal transitioned to an administrative state of calamity. In other words, Portugal adjusted to constitutional normality, while at the same time maintaining a degree of administrative exception through the administrative state of calamity.
Emergency law is not an exclusive of the constitutional framework. In fact, the ordinary legal arena also regulates emergency in the following legislation: the Civil Protection Framework Law, the Health Framework Law, and the Law on Public Vigilance of Health Risks. Even a cursory glance at the Portuguese legislation reveals the presence of an “ordinary emergency law”.[9]
The current national state of calamity, regulated in infra constitutional legislation, does not require checks and balances from the President and the Parliament. The question, thus, is the following: Has the transition from a constitutional state of emergency to an administrative state of calamity increased the powers allocated to the Portuguese Government?
The answer, though, is not straightforward. If, on the one hand, the exercise of fundamental rights is not partially suspended (as such suspension can only happen through the trio Presidential declaration of emergency, Parliamentary approval, and Governmental countersignature and execution), on the other hand, the Civil Protection Framework Law allows limitations to the circulation of persons and vehicles, access to private property, and temporary requisition of products and services. Besides, fundamental rights can still be restricted, within the requirements of article 18 of the Portuguese Constitution.
More importantly, the normative framework of the state of calamity is limited when compared with the normative framework of the constitutional state of emergency. Therefore, the Portuguese Government could not maintain the legal duty of home retreat and had to adjust it to a civil duty of home retreat (similar to the civic duty of voting).[10] Legal scholarship alerts for possible unconstitutionalities in the Covid-19 legislation imposing a state of calamity, such as the prohibition to reunite (or participate in events and celebrations) in public places with more than ten people.[11]
The sate of calamity can never become a de facto state of emergency or a “soft state of emergency” (Vital Moreira). To surreptitiously extend the state of emergency with a different name – state of calamity – while imposing mostly the same restrictive measures would represent a fraud on the constitution (Raquel Brízida Castro).[12] To protect the rule of law, a state of emergency should always occur within de jure framework and, as it happens in Portuguese constitutional law, respect tight constitutional requirements. Furthermore, under the current adverse conditions, it remains to be seen how the Portuguese courts are going to scrutinize Covid-19 legislation.
What I can foresee is that, as we prepare for the next phase of economic recovery, some restrictions will have to be maintained for the next year and a half, to avoid reviving the pandemic until a vaccine is available. If the Portuguese national health system is again threatened by increased infection rate, only the constitutional state of emergency could legitimize the reposition of restrictive measures and confinement.
As Fernando Pessoa, one of the greatest Portuguese poets, once wrote:
“Ah, who will write the story of what he could have been?
Will that story, if anyone writes it,
Be the true story of Humanity?
The only thing there is is the real world; it is not us, just the world;
What is not is us, and there the truth lies.
(…) What has become of our truth – the dream at the childhood’s window?
These are troubled times, which require resilience, imagination, accountability, and courage from our leaders. The outcome of today’s political and legal decisions will appear on our children’s and grandchildren’s history books. It should matter.
[1] Professor of Law and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa; email: cbotelho@porto.ucp.pt This reflection is based on my video for Constitutionnet – Government responses to Covid-19 (New Zealand Centre for Public Law at Te Herenga Waka – Victoria University of Wellington, the Center for International and Area Studies at Northwestern University and International IDEA), available here, and on the article written to Público, available here.
[2] Catarina Santos Botelho, Declaração de emergência ou da emergência da declaração?, Público (March 18, 2020).
[3] The Portuguese system was influenced by the French semi-presidentialism and the rationalized parliamentarism of the Weimar Republic. See Manuel Afonso Vaz, Raquel Carvalho, Catarina Santos Botelho and Ana Teresa Ribeiro, Direito Constitucional – O sistema constitucional português, Universidade Católica Editora, Porto, 2015, pp. 30-37, and Octávio Amorim Neto and Marina Costa Lobo, “Portugal’s semi-presidentialism (re)considered: An assessment of the President’s role in the policy process, 1976-2006”, Portugal in the Twenty-First Century: Politics, Society and Economics, 2012, p. 49.
[4] Jorge Pereira da Silva, “Situação de calamidade”: inapelavelmente inconstitucional, Jornal Económico (April, 30, 2020) available at https://jornaleconomico.sapo.pt/noticias/situacao-de-calamidade-inapelavelmente-inconstitucional-582275
[5] Gonçalo de Almeida Ribeiro, O estado de exceção constitucional (March 25, 2020) Observador, available at https://observador.pt/especiais/o-estado-de-excepcao-constitucional/ Luís Heleno Terrinha, Estado de Excepção Biopolítico e Suspensão de Direitos Fundamentais (May 4, 2020) available at SSRN: https://ssrn.com/abstract=3592726, and Pedro Lomba, The Constitutionalized State of Emergency: The Case of Portugal, VerfBlog, 2020/4/15, https://verfassungsblog.de/the-constitutionalized-state-of-emergency/.
[6] Alba Nogueira López and Gabriel Doménech Pascual, Fighting COVID 19 – Legal Powers and Risks: Spain, VerfBlog, 2020/3/30, https://verfassungsblog.de/fighting-covid-19-legal-powers-and-risks-spain/
[7] Nuno Garoupa, Nuno Botelho & Ana Sofia Carvalho, Roteiro do novo normal, Conversas Cruzadas – Renascença, available at https://rr.sapo.pt/2020/04/19/conversas-cruzadas/roteiro-do-novo-normal/artigo/189838/?fbclid=IwAR0SABN-yCb7QfzBVxoxfG8JEd3JYky0kKgJgToVAkFVB8QepGQiycT5Xzw
[8] Teresa Violante and Rui T. Lanceiro, 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/.
[9] Pedro Gonçalves, Nova fase de gestão da epidemia: a questão da (in)suficiência jurídica da declaração administrativa de calamidade (May 2, 2020) Observador, available at https://observador.pt/opiniao/nova-fase-de-gestao-da-epidemia-a-questao-da-insuficiencia-juridica-da-declaracao-administrativa-de-calamidade/?fbclid=IwAR1rw_FVwldV-hVpQ5Bu5L9w2QoZFPI1jrCup4xf-cW0C10cJ7reoPn0Dl0
[10] Catarina Santos Botelho, “European Elections: The Silence of the Lambs and the Dangerous Political Resignation – The Portuguese Perspective”, in DCU Brexit Institute Blog, 03/06/2019, http://dcubrexitinstitute.eu/2019/06/european-elections-the-silence-of-the-lambs-and-the-dangerous-political-resignation-in-portugal/
[11] Rui Medeiros, A força normativa da covid-19, Expresso (May, 1, 2020) available at https://expresso.pt/opiniao/2020-05-01-A-forca-normativa-da-covid-19?fbclid=IwAR3S3Ym34wFFRHg4xZp2A5o8-qnjLMq3pqSEVo2HI-ALT1E6uTLghmE6SD8
[12] Jorge Bacelar Gouveia, Emergência ou calamidade?, Público (April, 30, 2020) available at https://www.publico.pt/2020/04/30/opiniao/opiniao/emergencia-calamidade-1914339 and Jorge Pereira da Silva, “Situação de calamidade”: inapelavelmente inconstitucional, Jornal Económico (April, 30, 2020) available at https://jornaleconomico.sapo.pt/noticias/situacao-de-calamidade-inapelavelmente-inconstitucional-582275