The President of the Republic will announce today, in a declaration to the country scheduled for 8:00 pm, which rights are limited by the declaration of a state of emergency.
In constitutional terms, the Presidential decree should contain the limitations that will be imposed while the state of emergency is in force, making it possible to adopt mild or more restrictive measures. There is a large margin for action. Therefore, only the text will allow us to understand exactly how limited citizens’ rights will be.
Today, the Prime Minister made a statement to journalists, after an extraordinary meeting of the Council of Ministers that gave “favourable opinion” to the decision to declare a state of emergency.
António Costa has already advanced that the curfew will not be part of the restrictions imposed by the decree, but certainly that the mobility of citizens should be affected.
In the past few days, several experts have pointed out that it will be individual rights linked to free movement that should be most affected, but there may be others.
As the JM reported last Tuesday in the print edition, declared the State of Emergency, citizens can, for example, be forced to remain in isolation, that is, the Government’s powers increase and the possibility opens up for the isolation be ordered, ceasing to be simple advice. If the order is not enforced, the citizen incurs a crime of disobedience, which provides for sentences of up to one year in prison.
When is it justified?
It is Article 19 of the Portuguese Constitution that determines the suspension of the exercise of rights. Under the terms of the Fundamental Charter, the sovereign bodies cannot, jointly or separately, suspend the exercise of rights, freedoms and guarantees, except in the case of a State of Siege or the State of Emergency, declared as provided for in the Constitution.
The State of Emergency can only be declared, in all or in part of the national territory, in cases of effective or imminent aggression by foreign forces, of serious threat or disturbance of the democratic constitutional order or of public calamity.
The State of Emergency is declared when the assumptions referred to above are less serious and can only determine the suspension of some of the rights, freedoms and guarantees that may be suspended.
The option for the State of Emergency, as well as the respective declaration and execution, must respect the principle of proportionality and be limited, namely, regarding its extension and duration and the means used, to what is strictly necessary for the prompt restoration of constitutional normality.
Ireneu takes on a leading role
The declaration of the State of Emergency must contain the specification of the rights, freedoms and guarantees whose exercise is suspended, and the declared state cannot last more than fifteen days, but the decision can be extended.
The declaration of the State of Emergency in no case may affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of criminal law, the right of defence of defendants and freedom of conscience and of religion.
The declaration of the State of Emergency can only change the constitutional normality under the terms provided for in the Constitution and the law, and in particular, it cannot affect the application of the constitutional rules regarding the competence and functioning of the sovereign and self-governing bodies of the autonomous regions or the rights and immunities of the respective holders.
The implementation of measures in the autonomous regions is ensured by the representative of the Republic, in cooperation with the regional government (art. 20/2 of RESEM). In the case of Madeira, Ireneu Barreto, therefore, assumes a more prominent role.
It is incumbent upon the President of the Republic to declare the State of Emergency, having heard the Government of the Republic, what has already happened, and after the decision has been ratified by the Assembly of the Republic, which should still happen today.
Thus, it is incumbent upon the Assembly of the Republic to authorize and confirm the declaration of the State of Emergency, as well as, in the exercise of supervisory functions, to assess the application of the said declaration.
In Parliament, a simple majority is enough to authorize the State of Emergency, which will be guaranteed by the PS and PSD, according to statements by the respective leaders.
It is up to the Government of the Republic to implement the measures that may be defined.