In a panel discussion on “Defending Rights and Freedoms in a State of Emergency”, included in a symposium commemorating the forty-fifth anniversary of the Constitution of the Portuguese Republic organized by the Constitutional Court, José Carlos Vieira de Andrade considered that “be patient to avoid underestimating the state of emergency.”
He added: “This can be done, I think, by changing the law on the public health monitoring system, which is a limited change, of course, it should not be a total change, to adapt the current rules to the needs.” Professor at the University of Coimbra Law School.
Jorge Reyes Novis, a professor at the University of Lisbon’s Law School, agreed that the “solution” is to make a “subtle surgical change in the Public Health Surveillance Act, which is a parliamentary law that states that the government may or may not restrict basic rights, limit basic rights in these Circumstances, and distinguish that case separately. “
He added, “And secondly, and equally or more importantly, the form that government action should take, which in principle should only be a legislative form, something that is not happening now.”
In the opinion of both constitutions, neither the Basic Civil Protection Act nor the law establishing the public health monitoring system is appropriate for epidemic situations.
Vieira de Andrade said that “at this moment the work of the state in this aspect is regulated by these two laws, and what is said is that in the event of problems, the state of emergency is reinstated,” and concluded that “concern is at stake” of official legality. “
According to the professor at the University of Coimbra, Article 19 of the Constitution, which establishes a state of emergency as a tool to suspend the exercise of certain rights, freedoms, and guarantees, “is primarily aimed at cases where the interest is at stake. It was the public order itself” and “not much in the cases where it is. In it the enemy is a virus, and in it is the constitutional good. The good of society that must be protected is public health. “
It is understood that in the initial stage “the practical solution was an emergency and not legislative change”, but now “it is no longer well understood that there is no adequate and adequate legislation, and that the alternative is always to return,” said Vieira de Andrade.
“Not everything is worth it with regard to the state of emergency and I think it would be good if the state of emergency was not needed to limit rights to the extent that this would be necessary to ensure, in this case, the fight against the epidemic and thus, the restoration of normality. There is a possibility to define an appropriate legislative framework so that we can respond to these cases without the need to resort to a state of exception. “
“Everyone understands today the need for this law,” said Novis, but at the political level, this legislative change has been postponed until after the Covid-19 pandemic.
He asked: “If these laws are invalid, insufficient or unenforceable, is there anything that can be done until the end of the epidemic?”
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