COVID-19 andStress on Fundamental Rights in Portugal: An Intermezzo between the State of Exception and Constitutional Normality

Abstract

There is little doubt that the COVID-19 pandemic is challenging traditional legal arenas. Between March and May, Portugal experienced its first constitutional emergency state after the transition to democracy in 1974 and is now under the framework of an administrative state of calamity. In this report, I will concisely describe the political and constitutional events over the last six long months. As we prepare for the next phase of economic recovery, some restrictions will have to be maintained to avoid reviving the pandemic until a vaccine is available. These are distressed times, which entail resilience, accountability, and courage from our leaders. The outcome of today’s political and legal determinations will appear on our children and grandchildren’s history books. It should matter.

Summary: 1. Measures implemented to address the COVID-19 crisis: From constitutional emergency to administrative exception.
1.1. Measures before the state of exception.
1.2. Constitutional emergency.
1.2.1. Constitutional emergency design in the Portuguese Constitution.
1.2.2. Three presidential decrees of emergency and their execution by the Government.
1.3. Administrative escalator of exception: states of alert, contingency and calamity.
2. COVID-19 regulation in Portugal.
3. Legislation-making and enforcement.
3.1. A sui generis system of government.
3.2. Political and administrative decentralization.
4. Academic debate on fundamental rights’ distress in Portugal.
4.1. Debate on the measures approved before the state of exception.
4.2. Debate on the pertinence and on the design of the constitutional emergency.
4.3. Debate on the transition from constitutional emergency to administrative exception: a de facto constitutional emergency?
4.4. Debate on COVID-19 jurisprudence.
5. Portuguese legislation, jurisprudence and bibliography concerning COVID-19.
5.1. Legislation:
a) Before the constitutional emergency state;
b) During the constitutional emergency state;
c) After the constitutional emergency state.
5.2. Jurisprudence.
5.3. Bibliography.

Keywords: COVID-19 crisis; constitutional emergency; administrative exception; presidential decrees of emergency; execution by the government; de jure and de facto constitutional emergency