Explanatory note to State of Emergency

The pandemic that we are going through has challenged us legally, as the laws in force were not designed for a phenomenon of this nature. It is therefore understandable that the Government has experienced difficulties and faced criticism for the use of diplomas such as the Basic Law for Civil Protection to restrict rights, freedoms and guarantees through Resolutions of the Council of Ministers.

A calamity is certainly a phenomenon that is very limited in time, hence the aforementioned law authorizes the Government to act in terms that I never considered admissible in a pandemic situation, a situation that is global and of unlimited duration.

I have maintained that the Assembly of the Republic could not be removed, as it was, in terms of restricting rights, freedoms and guarantees. If I understand the difficulty of the present moment, the urgency of a legal comfort for the correct performance of the Government, for this very reason, I believe that the Executive would have done well, and will do well if he does it quickly, if he had presented a law proposal to the Assembly of the Republic that would serve as legislative authorization for its performance in pandemic times. We would not be innovative, as it was done in France, with the “health emergency law”, in the United Kingdom, with the “Coronavirus Act 2020” or in Italy, countries where Parliament has not lost its centrality in the matter, that here, too, would be of enormous importance,

Reading the Decree of the President of the Republic, we quickly realized the inadequacy of the figure of the Declaration of State of Emergency to the times we live in. There is no reason to resort to a constitutional state of exception that exists to suspend certain rights, freedoms and guarantees. So much so, that there are no suspended rights.

The Presidential Decree is limited to authorizing the Government and the competent authorities to “limit, restrict or partially condition the exercise” various rights (personal freedom, freedom of movement, economic freedom, workers’ rights, right to personality development). It is said to have a preventive character, which has no constitutional purpose.

I understand that we are facing a constitutional misuse of power. The President of the Republic makes use of a constitutional institute that has a limited function to assign it another one, precisely that which would be up to Parliament, that of restricting or authorizing the restriction of rights, freedoms and guarantees.

All of this is only tolerable due to the immateriality of the present State of emergency, on condition, as far as I am concerned, that a legal framework that enables the Government to act in pandemic times be quickly approved in Parliament, or we will fall into the absurdity of renewing with banality, every fifteen days, an institute decreed and executed by Democrats, but which tomorrow will be the desired precedent for who knows who.

In short, there is nothing to justify that Parliament is not the protagonist of the extent to which certain rights, freedoms and guarantees can and should be restricted, the responsibility for political action is, then, of course, of the Government, and only of the Government, which is accountable to Parliament, unlike the President of the Republic.


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