AUTHOR 

Ana Neves

COUNTRY

Portugal

YEAR

2022

Name of the act/s*

Repeals numerous decree-laws relating to the COVID-19 disease pandemic.

Subject area

Several. Constitutional relevance

Brief description of the contents of the act

The act determines the repeal of several executive laws (decrees-law)[1] adopted in the context of the COVID-19 disease pandemic. In despite of being a repealing act and having only six articles, it is an important milestone after a long period of time characterised by the presence of special and exceptional legality.

Its content is the following:

i)               It states that several executive laws approved within the scope of the COVID-19 disease pandemic are considered revoked, determining that they are no longer in force, due to expiry, previous tacit revocation, or by revocation that it determines. The act has as such, in part, a constitutive and a declarative nature (Article 1).

ii)              It lists the repealed decree-laws issued between March 13, 2020, and April 21, 2022, in a total of one hundred (100) repealed decree-laws.

It also revoked almost all provisions of the Decree-Law no. 10-A/2020, March 13, that was the first act enacted by the Government for the prevention, containment, mitigation and treatment of epidemiological infection by COVID-19, as well as the replacement of normality[2] (Article 2).

iii)             On the effects of the act, it is clarified that it does not preclude the production of effects in the future of facts occurring during the period of validity of the repealed legislation (Article 5).

iv)             It came into force on 1 October, 2022 (Article 6).

The decree-laws issued during the pandemic - and now revoked - concern health, social, and economic supporting measures for families and businesses, which were adopted to mitigate the adverse effects of coronavirus pandemic.

According to the preamble of the Act, the objective is to clarify Covid-19 rules that are no longer necessary, by expressly specifying the end of the effects of the decree-laws that adopted those measures and are now deemed obsolete, anachronistic, or outdated by the evolution of the pandemic (recital 4). In other words, the aim is to ensure that citizens can "know - beyond any doubt - which legislation concerning pandemic disease COVID-19 remains applicable" (recital 6).

Comment

1. A hypertrophy of legal rules enacted by the Government

The number of acts adopted by the Government between March 2020 and April 2022 related to pandemic COVID is impressive (https://dre.pt/dre/geral/legislacao-covid-19; and https://www.parlamento.pt/Paginas/crisecovid19.aspx). The Act under comment revokes a huge number of decree-laws, mostly of whom expressly state their temporary and exceptional nature. Their repealing shows that the situation no longer justifies them; and it is important to reduce the chances of their being used for other purposes (for instance, the special regimes approved on an exceptional basis regarding public procurement[3]).

The act states that it intends to clarify the decree-laws that are still in force (recital 6), but in fact it does not identifies them positively; it lists those that it repeals or declares repealed.

In addition, there are laws enacted by the Parliament (Assembly of the Republic) during the pandemic period that make reference to the now repealed decree-law, which “may raise doubts as to their interpretation or even effectiveness” (Marco Real Martins and Sérgio Alves Ribeiro - https://www.bas.pt/en/communication/legal-topics/termination-of-decree-laws-related-to-covid-19/).

Besides the number of acts that were enacted three aspects are important to notice: i) the regulatory dispersion and lack of systematisation that emerge from them; ii) the strengthening of the role of the Government in the exercise of the legislative function; iii) the repealed legislation are only decree-laws. Several resolutions of the Council of Ministers were adopted under the Civil Protection Framework Law - Law 27/2006, of 3 July (https://dre.pt/dre/legislacao-consolidada/lei/2006-66285526) to support situation of calamity (an administrative states of exception) declarations [4], which have sunset clauses[5].

2. The limits of executive action and the Constitutional case-law

In 2020, 26 May, Joelle Grogan stated that once COVID-19 crisis ceased, “there will be an opportunity for states and international bodies to examine and review their constitutional and legal architecture, as well as health and crisis response preparedness” (“States of Emergency”, VerfBlog, https://verfassungsblog.de/states-of-emergency/, DOI: 10.17176/20200526-133657-0). Based on then available data, she argued that “declaring a state of emergency or relying on ordinary legislation made the likelihood of abuse of power no more nor less likely”.

In Portugal, the COVID-19 measures, on one hand, were adopted, in different moments, under the above mentioned Civil Protection Framework Law, and the Law establishing a public health surveillance system - Law 81/2009, of 21 August, (https://www.pgdlisboa.pt/leis/lei_print_articulado.php?tabela=leis&artigo_id=&nid=1981&nversao=&tabela=leis); and under the exercise of ordinary legislative powers by the Government[6]. On the other hand, there were constitutional declarations of a state of emergency - one on March 18, 2020 (Decree of the President of the Republic No. 14-A/2020 that declared a state of emergency, based on the verification of a situation of public calamity), and on November 6, 2020 (Decree of the President of the Republic No. 51-U/2020, of 6 November), each of one renewed more than one time[7]. These were authorized by resolutions of the Assembly of the Republic and followed by Government decrees, and reports on the implementation of declarations of a state of emergency (https://www.parlamento.pt/Paginas/estado-emergencia.aspx). The state of emergency, that has never before been declared under Article 19 of the Constitution, covers situations of public calamity and allows for partial suspensions of fundamental rights[8].

Notwithstanding the concerns raised by the constitutional state of emergency, it was the legislation and administrative regulations adopted that have been most problematic. Three main questions arose:

i)      Whether the Government encroached on the legislative powers of the Assembly of the Republic;

ii)     The question of the proportionality of restrictions on fundamental rights;

iii)    Legal certainty and security issues, given the number, less clarity, and lack of coherence of legislative acts and regulations adopted.

The administrative courts, included the Supreme Administrative Court, dismissed the legal actions against "calamity situation measures" as unfounded, concluding that they have legal support, were determined by a public interest purpose of primary relevance - the protection of human life and health - and were proportionate to the objectives pursued[9]. They denied also claims for compensations grounded on the exercise of the political and legislative function[10].

The rulings of judicial courts[11] and of the Constitutional Court (under concrete review of constitutionality) in cases related to the Covid-19 pandemic concluded differently. Regarding the reasons mentioned, among constitutional rulings, it should be pointed out the following.

3.1. Regarding the distribution of powers between the Parliament and the Government in the definition of criminal offences during the state of emergency and the state of calamity, for instance, in Ruling no. 350/2022 (3rd Chamber), the Court decided to "deem unconstitutional, for breach of Article 165(1)(c) [[12]] of the Constitution, the provision resulting from Article 5-B(2), of the regime attached to the Resolution no. 40-A/2020, of 29 May[13], of the Council of Ministers, introduced by Resolution no. 45-B/2020, of 22 June[14], of the Council of Ministers, in conjunction with clause 4 [[15]] of this Resolution and with Article 348(1)(a) of the Criminal Code, in the part that determines that the publication of Resolution no. 45-B/2020 of the Council of Ministers constitutes a sufficient forewarning for the purposes of the crime of disobedience envisaged in this provision of the Criminal Code, whereby it is stipulated that in the Metropolitan Area of Lisbon retail and service establishments, as well as those located in commercial complexes, will close at 8 p.m.”[16]

3.2. Regarding the constitutionality of the provisions to a period of compulsory confinement or prophylactic isolation in respect of passengers arriving on certain flights, for instance, in Ruling no. 464/2022, the Constitutional Court “(…) deem unconstitutional the provision of Article 25(1) and (4) of the regime attached to Council of Ministers Resolution no. 45-C/2021, of 30 April, in the wording of Council of Ministers Resolution no 59-B/2021, of 13 May, for breach of Article 27(1), (2) and (3) of the Constitution of the Portuguese Republic” [and also] “(…) for breach of Article 165(1)(b), by reference to Article 27(1), both of the Constitution of the Portuguese Republic”[17].

3.3. In regard to the constitutionality of provisions determining a mandatory confinement period for citizens subject to active surveillance by the health authorities, for instance, in Ruling no. 490/2022, the Constitutional Court decided, by majority, “(…) to deem unconstitutional the provision contained in Article 3(1)(b) of the regimes attached to Resolutions of the Council of Ministers nos. 135-A/2021, of 29 September, and 114-A/2021, of 20 August, when interpreted to mean that “mandatory confinement in a health establishment, at home or, if that is not possible, in another place defined by the competent authorities is imposed on citizens that were subject to active surveillance by the health authorities or by other health professionals”, for breach of Article 27(2) [[18]] and (3) [[19]] of the Constitution” [and also] “(…) for breach of Article 165(1)(b), by reference to Article 27(1), both of the Constitution of the Portuguese Republic”[20].

3.4. In regards to constitutionality of the provisions ordering the suspension of the time-barring periods for criminal and administrative offences as a response to Covid-19, in the Rulings nos. 500/2021 (3rd Chamber), 660/2021 (1st Chamber), and 798/2021 (1st Chamber), the Constitutional Court inter alia considered the transitoriness of the measure, intended to be in force only during the period in which the activity of the courts was conditioned by the exceptional health emergency situation. As well considered that the constraints to this activity were essential to protect the life and physical integrity of all citizens involved in the administration of justice, including the defendants themselves; and that same was valid, a fortiori, for pending proceedings regarding administrative offences[21].

3.5. With regard to the constitutionality of the provisions allowing the cross-examination of a witness or declarant by videoconference, in the Ruling no. 738/2021 (1st Chamber), the Court, inter alia, stated that at times in which the State is faced with an exceptional situation of hardship in access to justice, it is important to make the rights of the parties compatible with other constitutional values to which it is bound, in particular “quality of justice, and (…) the public interest in the efficiency of the judicial system and in achieving a swift outcome to the judicial dispute»”[22].

4. The adoption of a Public Health Emergency Protection Law and a new constitutional review process

One of the major questions that arose during the health crises is whether the legal framework was adequate to support the measures deemed necessary for an effective fight against the pandemic. In June 2021, the Government set up a technical commission to study and prepare a preliminary draft to review the existing legal framework. This Commission included one representative of the Ombudsman's Office, one of the Office of the Attorney General of the Republic, a professor of the National School of Public Health and a retired Judge of the Supreme Judicial Court. The Draft Law on Protection in Public Health Emergencies that resulted from the Commission's work was made public on 11 May 2022 (https://www.portugal.gov.pt/pt/gc23/comunicacao/comunicado?i=governo-remete-a-assembleia-da-republica-novos-contributos-da-comissao-tecnica-sobre-a-lei-de-protecao-em-emergencia-de-saude-publica-).

The Commission proposed namely the following provision, which has been much debated: “The health authority may order the isolation of a person affected by a disease on which the declaration of a public health emergency is based, for a period not exceeding 14 days, in their domicile, in an appropriate place of accommodation, a health establishment or a reception and support structure, with the aim of averting the risk to public health.”

The Commission considered that isolation and quarantine constitute a measure restricting freedom (and not a measure depriving liberty) and that, therefore, it falls outside the protection of Article 27(2) of the Constitution of the Portuguese Republic, that states that “[n]o one may be wholly or partially deprived of their freedom, except as a consequence of a judicial conviction and sentence imposed for the practice of an act that is legally punishable by a prison term or the judicial imposition of a security measure”.

As a process to revise the Constitution has been initiated (https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=152001), the Technical Commission was called by the Government to clarify its comprehension regarding the need to introduce a constitutional norm to reinforce the legal security of the mentioned provision. On 8 November 2022, it proposed that a new subparagraph is added to Article 27(3) of the Constitution.

The discussion about the need to modify the Article 27 of the Constitution will be one of the main themes of the constitutional revision.

Secondary sources/ doctrinal works (if any)

­       Constitutional Court, Rulings of the Constitutional Court of Portugal related to the Covid-19 pandemic, 2022, https://www.tribunalconstitucional.pt/tc/en/courtsforeignrelations.html?wano=2022.

­       European Union Agency for Fundamental Rights, “Coronavirus pandemic in the EU - Fundamental Rights Implications”, Centre for Social Studies, 4 May 2020.

­       Lanceiro, Rui, Violante, Teresa, and Egídio, M Melo, “Portugal: Legal Response to Covid-19”, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e23.013.23

­       Maduro, Luís Miguel Poiares Pessoa, and Santos Botelho, Catarina, “A Democracia Portuguesa em Tempos de Pandemia” (Portuguese Democracy in Pandemic Times), in Miguel Poiares Maduro e Paul Kahn (ed.), Democracia em Tempos de Pandemia, Princípia, Cascais, 2021, pp. 163-182, https://ssrn.com/abstract=4028592.

­       Moniz, Ana Raquel Gonçalves, “Public Law and the Pandemic”, in White Book, The Ethics of Public Health Emergency Preparedness and Response, Responsibility for Public Health in the Lusophone World, Doing Justice in and beyond the COVID emergency, WHO ERC number ‑ (CERC.0079/ HEG 70), (https://doi.org/10.47907/livro2021_01c4en).

­        Santos Botelho, Catarina, “COVID-19 and stress on fundamental rights in Portugal: An intermezzo between the state of exception and constitutional normality. Revista Catalana de Dret Públic, 2020 (special issue), 183-194. https://doi. org/10.2436/rcdp.i0.2020.3553.

­       Violante, Teresa; Lanceiro, Rui T., The Response to the COVID-19 pandemic in Portugal: A success story gone wrong., VerfBlog, 2021/3/04, https://verfassungsblog.de/the-response-to-the-covid-19-pandemic-in-portugal-a-success-story-gone-wrong/, DOI: 10.17176/20210304-154039-0.

*Act citation /year and number

Decree-Law No. 66-A/2022 of 30 September (Declaration of rectification no. 28/2022, of 28 October).

Enacted by

Government

Official link to the text of the act

https://dre.pt/dre/detalhe/decreto-lei/66-a-2022-201773286