Rule of law is for the weak, not the powerful.
Jorge Varela is a doctoral student at the CRMEP, Kingston University London. He researches 20th century continental political philosophy.
Portugal is approaching the most outrageous elections it has had during the past decades. As appalling as they are, no political debate approaches the unavoidable question: What is the impact for democracy of the measures that were implemented during the past 2 years? The silence that surrounds this question is symptomatic of the gravity of the attack on democratic logic. The elections will take place on the 30th of January, but to explain what is going on I will have to go back to a call I received from my father two years ago.
In late March 2020, my father called to tell me that a tenant had requested to postpone the payment of his rent for the following three months. He asked me whether he should refuse this request, as it was based on a newspaper article announcing a future law. After much persuasion I was able to convince my father that the law would be approved, and he would gain nothing by being a bigger arsehole than usual.
As expected, the law was approved on the 2nd of April, but to my surprise it included a clause stating that it would enter into force on the 1st of April. This may sound irrelevant, but the Portuguese constitution determines that laws with retroactive effects can only be approved when the declaration of the state of emergency by the parliament and the President explicitly grants that power. Portugal was under the first state of emergency since the approval of the current constitution in 1976, but I did not recall this power ever being granted. Until that very moment, I had assumed that the government’s application of its emergency powers was less severe than what had been hoped for by the president. Hence, I decided to calmly read again the declaration of the state of emergency. To my amazement, I found that among the long list of emergency powers granted was not the power to approve laws that were retroactive.
I had no objections to this law, which intended to help businesses and families deal with the economic backlash of a nationwide lockdown. However, upon reading the COVID-19 laws that had been published thus far I realised that violations to the limits of powers of the Portuguese institutions were widespread. Bear with me while I share with you the legal history of Portugal from March 2020 until January 2022.
On the 13th of March 2020 the Portuguese government enacted extraordinary measures, including the limitation to access public spaces, and from thence onwards a series of escalations followed. On the 18th of March, the parliament and the president declared the state of emergency, suspending many rights including the right to demonstrate and the right of resistance to every rule resulting from the declaration of emergency.
Interestingly, on the 19th the parliament approved a law that ratified the effects of the decree of the 13th of March, starting its effects from the time of publication of the earlier decree. That is to say, the parliament recognized that the extraordinary measures enacted by the government required the parliament’s approval, but this approval immediately approved laws retroactively, thereby extending the extraordinary powers that resulted from the declaration of the state of emergency to 5 days before of that declaration. It was just like reading the legal version of Inception in which you need to keep unpacking your dreams to get closer to the foundation of reality.
Ever since then, the approval of decrees and laws with effects to the past have been pervasive. This has elicited acts by public authorities that were done beyond the limits of their powers and has made impossible any sense of predictability of law. This means that the right that is granted by the Portuguese constitution to resist any illegitimate norm has become void because the legitimacy of the acts can be granted after the fact.
The state of emergency – the only regime under which the Portuguese constitution allows for constitutional rights to be suspended – remained in force until the 3rd of May. At that time the Portuguese government approved the situation of calamity. What would seem an attenuation of the measures undertaken, turned out to be a more extreme suspension of the constitution. The situation of calamity does not require the approval of the parliament, but it also cannot suspend constitutional rights. As a matter of fact, it violated several constitutional rights including the right to free circulation (with limitations to the right to travel between towns, to access beaches, and in my home-town outdoor playgrounds were closed at this moment and remained so for over one year), it suspended the right of many businesses to remain in operation, among others.
If we disregard the fact that constitutional rights were suspended by the government when it did not have the power to do it (it could be argued that these issues could be legislated by the parliament, but certainly not by the government), the situation of calamity is a temporary measures that can only remain in force for a short period of time before the state of emergency.
Allow me to elaborate a little bit on the history of calamity in Portuguese law. When the Portuguese colonialist and proto-fascist regime was toppled in 1974 a revolutionary period started in Portugal that led to the approval of a new constitution in 1976. Under this new constitution the state of siege or the state of emergency can only be declared “in the instances of actual or imminent aggression by foreign forces, of serious threat to or disturbance of democratic constitutional order or public calamity” (constitutional is an addition that didn’t exist in the 1976 constitution). In 1976, public calamity has no other meaning than a justification for the declaration of the state of emergency which shall be declared to guarantee a prompt return to “constitutional normality”.
It is only in 2006 that a specific legal regime called “situation of calamity” was created to deal with catastrophes. Three years later, a system of surveillance of public health was created whose statute explicitly stated that one of its purposes under the situation of calamity would be to write the reports that would lead to an assessment of the necessity to declare the state of emergency. While these legal innovations have a more flexible interpretation of “public calamity”, their explicit goal is still to allow the government to take extraordinary actions while the president and the parliament gather further information to decide whether there is the need to suspend parts of the constitution in order to deal with the existing situation.
When in May 2020 the government decided to declare the situation of calamity after the state of emergency, it decided to suspend the constitution without complying with the constitutional provisions to do so.
Ever since March 2020 Portugal has always been under some sort of exceptional rule, occasionally shifting from state of emergency to situation of calamity to situation of contingency and alert, but at no point during this period has constitutional normality been re-established. By developing the concept of calamity, Portugal is both violating and continuing Portuguese constitutional law, but at this point the constitution can already be suspended without the need for constitutional emergency measures.
It is still difficult to understand why it is that courts played such a small role during this process. There were occasional instances in which lower courts ordered the nullity of some quarantine orders. But whenever the Supreme Administrative Court ruled on the validity of more general administrative rules it always sided with government. Sometimes it went as far as considering the cases to be legally uninteresting, thereby refusing to pass judgement. The constitutional court deemed one act by the regional government of Azores unconstitutional, but I know of no such decision in relation to decrees by the central government. Among the decisions of higher courts there is one that is particularly dear to me as it was issued in response to a request submitted by me.
In summary, Iast summer we went to Portugal and I claimed that the decree that declared that I had to quarantine because I would not show a vaccine certificate was discriminatory (because it only applied to people without vaccine, regardless of infection status), issued by a state body that had no powers to do it (by the government rather than by the parliament), and it did not follow the legal procedures required for such a decision (being declared by the police, rather than by a judge or a doctor).
I am happy to say that among the three judges that signed the ruling, one voted against the government. But I still lost. While I appreciate some support, the justification for the ruling is more significant than my personal destiny. The court’s ruling regarding the accusation of discrimination deserves a direct quote:
“[I]t does not appear discriminatory in relation to passengers and citizens originating in other countries (not included in the referred list), as the supposed “discrimination” is justified by the specific epidemiological situation in the United Kingdom.
Note that the measure is only imposed on passengers and citizens originating in the United Kingdom who do not have an EU Covid certificate or proof of complete vaccination carried out in the United Kingdom, that is, only on the unvaccinated.”
According to the court the measure is not discriminatory because it only applies to some people. I am still baffled with this response. But the reference to the “specific epidemiological situation in the United Kingdom” is equally incomprehensible. This statement was sustained in the government’s assertion that the situation in the UK was particularly concerning because the prevalence of the Delta variant was 99%. However, 4 pages below that statement the government provided a table according to which the prevalence of the Delta variant in Portugal was 98.9%. Both the rebuttal of discrimination and the defence of proportionality of the measure seem baseless.
For the matter that concerns me the most, the elimination of the limits to governmental powers, the court’s decision leaves me equally puzzled. The court agrees that the regulation of constitutional rights is a power that belongs to the parliament which can occasionally delegate it on the government to legislate on specific matters. Hence, the court decides that this possibility is enough for the government to regulate constitutional rights regardless of the existence of such delegation. This means that according to the court any power that may possibly be delegated on the government under certain circumstances already belongs to the government.
I doubt anyone can argue that this court decision advanced a sound legal argument, but to a certain degree that is beside the point. At this moment, these court decisions create a precedent. From this moment onward any government may appeal to such extraordinary powers as the elimination to the limits of governmental powers was turned into a rule.
The return to calamity
On the 1st of December 2021 Portugal increased again the measures and returned to a situation of calamity that was declared until the 20th of March 2022 (an unprecedented long period of time), with a period of aggravated measures between the 2nd and the 9th of January. In the preface to the declaration of the situation of calamity one reads:
“Despite the fact that, as a result of the high vaccination rate achieved in Portugal, the pressure indicators on the National Health Service and the impact on mortality are below the reference levels proposed by the experts, the aforementioned reality requires the immediate adoption of preventive measures, in order to try to avoid the worsening of the epidemiological situation.”
This means that the government declared for a period of several months that several rights will be violated and that certain people (the unvaccinated) will not be allowed to enjoy several activities as others will, based on a lack of indicators to justify it.
On the 23rd of December the government issued a new resolution that determined that the period of aggravated measures should be extended from the 2nd to the 9th of January to the 24th of December until the 9th of January. One would obviously expect that this would have resulted from a serious deterioration of the conditions, but the decision’s legitimation is as follows:
“The evolution of the epidemiological situation in Portugal caused by the SARS-CoV-2 virus and the COVID-19 disease, taking into account, in particular, the high vaccination rate and the significant compliance with the measures in force since December 1st, led to an improvement of incidence and transmissibility indicators and a situation of maintenance of the National Health Service response capacity, measured in different indicators such as testing, hospitalizations in wards or in Intensive Care Units.”
The government decided to follow a traditional Portuguese saying: “there is no two, without three”. For those who don’t understand the Portuguese saying, the publication of a third resolution on the 7th of January that extended the period of aggravated measures from the 9th until the 14th of January makes it explicit:
“the capacity of the National Health Service to respond remains, namely in terms of capacity for admission to intensive care units, which is due, in particular, to the high vaccination rate of the population and strict compliance with the measures in force since 1 December 2021.”
At this point the government no longer needs to present justifications for its measures. This is the logical conclusion of the elimination of the limits to the powers of the government.
The promise of elections
Amid these successive violations of the constitution, with the potential for long-standing impacts on the sort of government we can expect in Portugal, the new elections on the 30th of January would be welcomed as a space to debate the consequences of the past two years. To my great disappointment, and even though the elections will happen under a situation of calamity, these topics are not even on the table. Of all the major parties none has turned the reconfiguration of the Portuguese legal and political system into a major topic. This leaves me with a question: If democracy remains silent when it is faced with measures that can be easily used by those who wish to destroy democracy isn’t democracy already over?
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