State of exception and Covid-19
Commentary on the key-note speech The State
of Exception under German Law and the Current Pandemic:
Comparative Models and Constitutional Rights,
by Professor Anna-Bettina Kaiser
Estado de exceção e Covid-19
Comentário à apresentação O Estado de Exceção no Direito
Alemão e a Atual Pandemia: Modelos Comparativos e Direitos
pela Professora Anna-Bettina Kaiser
Abstract: The Portuguese Constitution encompasses both
the suspension of
basic rights and the restriction thereof as instruments to deal with states of
exception. However, and in contrast with German law, the absence of a systematic
normative framework to face the current pandemic crisis and the legal reaction to
its consequences demonstrate the importance of preparedness also in the world
of law and rights, and lead to reflections which go straight to the very core of
Keywords: State of exception, Constitutional law,
Summary: Introduction; 2. Commentary; 3.
Resumo: A Constituição Portuguesa abrange tanto a
suspensão dos direitos
básicos como a sua restrição como instrumentos para lidar com os estados de
exceção. No entanto, e em contraste com a lei alemã, a ausência de uma estrutura
normativa sistemática para lidar com a atual crise pandémica e o modo como
se reagiu juridicamente às suas consequências demonstram a importância da
preparedeness também no plano do(s) direito(s) e implicam reflexões que nos
colocam, de novo, perante o núcleo do constitucionalismo.
Palavras-chave: Estados de exceção, Direito
1. Introdução; 2. Comentário; 3. Conclusão.
The protection of public health according to its constitutional understanding as
a task of the State (articles 9 and 64 of the Portuguese Constitution) shows that
we are faced with a topic shared by many areas of law. However, perhaps no
other legal branch has been affected by the current pandemics as Public Law
and especially Constitutional Law. This perception is a combined result of two
phenomena: on the one hand, the concerns of public powers are now focused
on the implementation of the right to health; on the other hand, the mechanisms
adopted to fight Covid-19 involved exceptional provisions that affected
significantly other fundamental rights. As in Germany, Portugal is currently
under a Constitutional (and administrative) law of exception.
Rule of law, Rechtsstaat and Etat de droit are key concepts of our constitutionalism,
based on the protection of fundamental rights. The main problem that the theories
of the law of the exception must solve is the balance or the dialectics between the
safeguard of fundamental rights and guarantees, and the government’s urgency
A quick overview on Professor Kaiser’s speech demonstrates that the
Constitutional Law as applied is normal times is disabled in dealing with
emergencies and severe crisis like pandemics, but this doesn’t mean that normal
Constitutional Law has not have the resources to deal with these situations.
The praxis (and the Portuguese experience) reveals, on its turn, that perhaps a
specific Constitutional Law of the exception is not skilled enough to tackle with
the consequences of a long-term crisis.
For instance, the seven traditional topoi Professor Kaiser identifies as main
theses in the constitutional law of exception reveal the deep consequences that
crises bring to the core of “constitutionalism as mindset” (if we want to invoke
Koskenniemmi and a particular Kantian vision of constitutionalism): separation
and interdependency of powers, protection of fundamental rights and, in general,
juridicity (Rechtsmässigkeit) of public action.
I will not be able (I would not dare) to commentate all the topics chosen by
Professor Kaiser, so I will focus on five ideas.
First of all, and with the purpose of stressing the differences between the
Portuguese and the German systems already pointed out by Professor Kaiser,
I will emphasize that the experience of the Weimar Republic (based on Carl
Schmitt’s doctrine) and especially the experience of the Nazi abuse of article 48
of the Constitution highlights the dangers of a constitutional or legal framework
that promotes the empowerment of the President, allowing him to temporarily
suspend fundamental rights, without a real concurrence of the other constitutional
organs. This is why the Portuguese system actively involves the Parliament in
this process. In fact, the state of emergency supposes not only an agreement
between the three main constitutional political institutions – the President, the
Government, and Parliament, within a system of checks and balances –, but also
the parliamentary control over its execution.
Second, and whenever the legal systems recognize the essentiality of the
opposition between the so-called law of normality and the law of the exception, I
will underline the importance of codifying this law of the exception or this kind of
constitutional state of necessity – instead of leaving the problem to interpretative
solutions mainly reached outside de Constitution, as it is traditional, for instance,
in Switzerland. However, the Portuguese constitutional design of the state of
emergency does raise serious doubts: for instance, it is conceived for a short
period time (15 days), but it may from time to time be renewed subject to the
same time limits. Experience has already demonstrated that the pandemics is
here to stay and currently we are assisting to successive renewals of the state
of emergency – clearly revealing its disability to deal with pandemic crises.
Nevertheless, the counter-argumentation remains equally strong: the limited
validity of the state of emergency offers the possibility of a strong political and
constitutional monitoring, since there is always a parliamentary control over the
subsequent renewals of the state of emergency. In addition, the Presidential decree
of declaration of the state of emergency is itself an act whose constitutionality
can be reviewed by the Constitutional Court.
My third remark will underline a common topic: the absence of a healthy
emergency clause both in the Portuguese and in the German constitutional texts
(both in the Constitution of the Portuguese Republic and in the Grundgesetz).
However, differently from Germany, we have a general provision to deal with
a “public disaster” and this has been the constitutional basis of the President’s
decrees among us. But the question remains: what can or shall be addressed as a
public disaster? That is a topic that will demand a subsequent reflection, in order
to interpretatively densify this wide concept.
Professor Kaiser told us about the introduction of a new state of emergency
into German law: the “epidemic emergency of national concern” and its
relevance concerning the Federal Ministry of Health’s competence to issue
executive rules. Portugal faces an analogous problem, but the framework
(even the constitutional framework) is rather different from the German one. In
Portugal, under normal conditions, Government has already competence to enact
independent executive rules. Those independent regulations may even be issued
under Article 199, section g), of the Portuguese Constitution. According to this
disposition, the Government is competent to perform all the activities and make
all the arrangements necessary to promote economic and social development
and to meet community needs. Nevertheless, this power has limits – one of them
concerns precisely the matters related to rights, freedoms and guarantees.
But this topic attests the important role played by the Government (acting within
its administrative powers) under normal circumstances, a role traditionally
increased in times of exceptionality. Not only the Government has the
responsibility to execute the decree of the President that declares the state of
emergency, but also the insufficiencies revealed by the state of emergency were
tackled by administrative legal instruments: states of alert and contingency
and the (special) administrative state of exception consisting of the “state of
calamity” – all provisions that strengthen the central role of the Government.
In addition, in the event of public health crises, the Portuguese law on Public
Health Monitoring attributes to the Ministry of Health a competence to enact
executive rules, as well as any exception measures involving the restriction,
suspension or closure of economic activities, the separation from healthy people,
means of transportation or merchandises, in order to deal the dissemination of
the infection or contamination.
Table 1 – States of exception in Portugal
At last, and as Professor Kaiser stressed already, under exceptional
circumstances, it is important that the rule of law really functions. Despite
believing that the rule of law is working as it should (also in Portugal), it cannot
be concealed that there are few judicial actions on pandemic measures, as it can
be concluded from the following table:
Table 2 – Jurisprudence of the Constitutional Court and
Supreme Court updated to 17.12.2020
A preliminary analysis of this data allows some reflections:
From a comparative law perspective (Professor Kaiser told us about
the impressive number of over 1000 published administrative and
constitutional court decisions on pandemic measures in Germany!), we
do not have a great number of decisions. But this does not mean that the
Portuguese measures are less problematic or do not raise constitutionality
or legality questions – as we can attest by reading the dissenting opinions.
The Constitutional Court lacks powers to rule in proceedings specially
designed to protect fundamental rights against public authorities
(like amparo or Verfassungsbeschwerde). The Constitution remained
not indifferent to this problem: Article 20, para. 5, added by the 1997
Amendment, established that in order to defend personal rights, liberties
and guarantees, the law shall provide citizens with legal procedures that
are characterized by swiftness and priority, so that there is effective and
timely protection against threats or violations of these rights. In 2002 the
requirement has been met by the creation of the writ for the protection of
rights, freedoms and guarantees within the jurisdiction of administrative
courts, a mechanism that aims at condemning administrative entities to
adopt a conduct which is indispensable to the exercise, in good time,
of a right, freedom and guarantee. Concerning the pandemic measures,
the above-mentioned absence of powers of the Constitutional Court
regarding the appreciation of concrete decisions of inferior courts has
the effect that the power to protect fundamental rights is shared with the
Supreme Administrative Court (the latter playing an outstanding role on
The decision of the proceedings was fast, and therefore fulfilled the
swiftness and priority demanded by the Constitution and the substantive
exigencies of the rule of law.
The principles of proportionality and equality were taken as standards of
review, revealing, in some measure, the difficulties and the weaknesses of
the traditional understandings of such principles.
The Courts begin to appeal to Comparative Constitutional Law, which
expands the horizons of the solutions to concrete problems and enables the
enlargement of the testing ground of the plausibility of the argumentation
underlying the rulings. However, if the dialogue between national, foreign
and international jurisdictions may be considered fruitful, it shall not be an
argument (or even a juridical basis) to modify the core of the fundamental
principles that rule Public Administration – like the principle of legality.
Although law is performative and argumentative, an abstract appeal to
European or International law shall not replace the liaison between the
rule of law (in the sense of Rechtsstaat) and the democratic principle –
which is the punctum crucis of the exigency of an accurate and precise
legal basis for the administrative action.
The Portuguese model reveals a combination between the restriction and the
suspension models, trying to achieve the balance between emergency measures
and the protection of fundamental rights, within a constitutional system shaped
on the interdependency of powers. The important role played by the Government
demands a severe control (hard-look review) on the existence of a legal
(parliamentary) basis of the administrative measures (specifically, executive
rules) on rights, freedoms and guarantees. The absence of a systematic framework
to deal with a pandemic crisis and the problems related to the protection of
fundamental rights clearly demonstrate that we are again facing back the very
core of constitutionalism.