It is the strongest hypothesis on António Costa’s table: with the end of the state of emergency, the situation of public calamity can be decreed so that the Government continues to have a legal instrument that allows it to impose a home confinement or a total restriction or partial of population movements, as the Observer advanced exclusively this Friday. But several constitutionalists heard by the Observer raise doubts about the legal effectiveness of this legal instrument in the context of a pandemic.
All because the end of the state of emergency that came into force on March 19 will restore constitutional rights and freedoms. And also because, on the other hand, experts claim, the calamity was not designed to be implemented at the national level and in the context of a pandemic. In other words, the imposition of the state of calamity defined by the Civil Protection basic law can raise constitutional problems to close borders, limit the number of people present in a restaurant, in a cinema or in a public space, to impose the confinement of a party at home. population (people over 70, for example) or even to enforce a certain social distance on a beach.
Ultimately, the calamity situation may not be strong enough to force citizens to stay at home, which means that the Government can only make one recommendation. The consequence is obvious: no one can be penalized for not following this recommendation.
“If the Government could do the same thing, under the Civil Protection basic law, which it did under the state of exception, then what would the state of exception be for? The Government cannot set limits on freedom of movement on terms that were allowed in the state of exception, for example. Admitting that I could do the same, then we would be facing a real fraud to the Constitution ”, says Raquel Brízida Castro, professor at the Faculty of Law of the University of Lisbon and principal investigator at the Center for Investigation of Public Law, specialist in Constitutional Law.
Framed by the Civil Protection basic law, the calamity situation provides for the Government to take some measures, at local, regional or national level. Contrary to what happens in the still current state of emergency, which allows the exceptional and temporary suspension of some essential rights and guarantees, such as travel and settlement anywhere in the territory, international circulation, the right to assemble and demonstrate or freedom of worship. , for example, the calamity situation “does not foresee any cut in liberties”, the constitutionalist Jorge Miranda guarantees to the Observer.
The state of emergency will last until the 3rd of May. Unfortunately, it is expected that the health situation will continue, but if it is understood that it is no longer justified to adopt certain strict measures to delimit freedoms (freedom of movement, opening of commercial establishments, theaters, universities, etc.) then you can talk about calamity but not a state of emergency, ”he says.
Miranda, who was part of the Constituent Assembly and is considered one of the fathers of the Constitution, says that the state of emergency and the calamity situation “are two different realities”. “The state of emergency is a legal figure and calamity a de facto situation. In practice, when talking about a state of calamity, it is a less serious situation than the state of emergency ”, explains the professor of Constitutional Law.
“The calamity situation can justify certain response measures on the part of the Government in relation to certain situations, and which may even involve limitations on the movement of people, but not to the extent that there is a limitation on freedoms as with the state of emergency ”, he adds.
The Civil Protection Basic Law says, the calamity situation can be decreed by the Government, through a resolution by the Council of Ministers (and not by the President of the Republic, as in the case of a state of emergency) in the event of the existence or imminence of an “unusual event with relatively limited effects in time and space, susceptible to reaching people and other living beings, goods or the environment”. Or in the event of a “serious accident or a series of serious accidents that are likely to cause high material losses and, eventually, victims, intensely affecting living conditions and the socio-economic fabric in areas or in the entire national territory”.
According to the experts heard by the Observer, this will be the initial problem: the calamity situation will not have been thought of for the type of problems that the coronavirus outbreak raises currently in Portugal and worldwide. “The state of calamity is not foreseen for pandemic situations. It is planned, I would say, for earthquake situations, for fire situations and for situations of localized epidemic, but not for a pandemic situation. That is, widespread and widespread, and with special risks for certain age or social groups ”, says the constitutionalist Paulo Otero.
With the end of the state of emergency, all fundamental rights are restored and the calamity situation does not have sufficient legal force to allow what is allowed in a state of emergency. It is the least. It remains to be seen whether this less is adequate or if it does not violate the principle of proportionality due to insufficiency and inadequacy for the requirements imposed by the pandemic. The measures may be too soft for the risk of spreading the spread of the pandemic ”, warns the lawyer.
“The state of calamity is the highest degree enacted under the Civil Protection basic law – and in this context we are in full constitutional normality. This law applies to a certain event, with a very limited geographical and temporal circumscription, such as a natural disaster or fire. In other words, it implies that a catastrophe has occurred, which has had certain effects, such as high natural losses and victims, for example. Obviously, it doesn’t make any sense in this context, unless there are several declared calamity states ”, adds Raquel Brízida Castro.
“The state of calamity allows for limits on circulation, but the logic of law enforcement is geographical delimitation. That is, it is difficult to consider that that law was made to apply certain measures at the national level. “
In national terms it does not seem to me that the Government can, under this law, limit the number of people present in a restaurant, cinema or public space. Under the basic Civil Protection law, it does not seem to me that such measures can exist at national level, but it is very debatable. It all depends on the concrete circumstances. For there to be a sanitary fence, for example, there must be a serious threat to public health, but even the concept of a sanitary fence is uncertain because there is no Public Health law. Now a national health fence or a national quarantine is not – that is not possible ”, assures the professor at the Faculty of Law of Lisbon.
According to the Civil Protection basic law, the calamity situation does not have a maximum duration (in contrast to the state of emergency, which is mandatory to be reviewed every 15 days) and provides for the “Civil mobilization of people, for certain periods of time”, the “setting, for reasons of safety of themselves or of operations, of limits or restrictions on the movement or permanence of people, other living beings or vehicles.” It also provides for the “fixing of sanitary and security fences” and “rationalization of the use of public transport, communications and water and energy services, as well as the consumption of essential goods”.
“The powers of intervention are much more reduced, especially in the area of fundamental rights, specifically in the confinement of people”, points out Paulo Otero, who foresees that the prophylactic isolation of elderly citizens, against their will, becomes a problem. “The Government will no longer be able to condition that people over 70 are at home or that they can only leave for specific or specific purposes. There is a possibility to limit the circulation and the permanence of people, but it is in a different space, it has to do with the circulation in a geographical area. It is not, at bottom, coercing, restricting, limiting or imposing the solution of confinement in their homes. ”
The calamity statement may recommend that people remain at home but do not have enough strength to enforce it. And for that very reason, in case of disobedience, no one can be sanctioned for that. Nobody can be sanctioned for not following a recommendation, but a person can be sanctioned for violating a prohibition ”, adds the constitutionalist, noting that under the basic Civil Protection law there are crimes of disobedience, only the“ possibility ”is not foreseen to impose obedience to confinement ”.
Although the limits of circulation are provided for in the framework of the calamity situation, border closures or suspensions of workers’ rights will not be possible, as happened during the state of emergency, assure the constitutionalists heard by the Observer.
“The limits to circulation, as it happened in the 2017 fires, are possible: you cannot drive on road x or y; or you cannot enter village y. This is a way of conditioning access. Or as it happened until days ago in the case of Ovar, when it was not possible to enter or leave the city. Security fences can also be applied and you cannot enter a beach or a municipality. I now have some doubts about whether security fences can apply to the entire territory or at the level of borders, for example. I even admit the hypothesis of a health security fence, at the limit, throughout the national territory, but the movement of people across borders cannot be prevented ”, says Paulo Otero.
“In the case of beaches, limits can also be imposed: entry to certain beaches may be prohibited or the number of people limited. And the distance between the towels, for example? Or not being able to approach a person more than a meter or two? It is one thing to prohibit or condition the access, circulation or permanence of people in a circumscribed scenario, which is what is provided for here, it is another thing to do the same in a scenario of widespread widespread dissemination of a situation of contagion ”, adds the constitutionalist, full professor at the Institute of Legal and Political Sciences of the Faculty of Law of the University of Lisbon.
According to the constitutionalists heard by the Observer, any restrictions implemented under the calamity situation will have to be justified by the epidemiological situation at the site. Even in the case of beaches, points out Raquel Brízida Castro, the application of restrictions will always have to depend on several factors, such as “the type of restrictions, the location, if it is a zone of greatest threat, or if there are more or less infected”.
Then, there are still red lines that cannot be crossed: “In a state of calamity, the Government cannot prevent the operation of shops or restaurants, nor close airports, nor control borders. And circulation between municipalities can also only be prevented if a sanitary fence is decreed in a specific municipality, “says the constitutionalist. Which also makes a point of warning: “The tracking of citizens, the compulsory internment of suspicious cases or access to metadata can never happen, neither in constitutional normality nor in a state of exception”.