[ad_1]
Between October 30 and November 3, the Government declared a traffic ban among all municipalities in the country, due to the increase in cases of covid-19 in Portugal in recent days. But, in constitutional terms, this measure decreed by the Council of Ministers divides the doctrine and has been generating controversy. Since the country is not in a state of emergency, but rather in a state of calamity, can the Government prohibit people from moving freely between various municipalities? There are those who say that, in the case of a health crisis like this one, there are laws that give the Government that “margin of maneuver”, but there are also those who defend that this measure totally violates the fundamental rights of the people. For SOL, the constitutionalist Jorge Miranda admitted that he had no doubts that “the Government cannot do this.”
“It is a limitation to a fundamental right, such as the right to travel and, therefore, the Government cannot apply this measure in this way. It would only be possible with a partial state of emergency or a state of emergency that we have been in before. It is a terrible limitation of freedom, especially at this time, when people want to go to the lands where the bodies of their relatives and friends are buried ”, began by saying the so-called ‘father’ of the Constitution, alluding to whether the Day of the Dead is celebrated on November 1 and, in the Constitution of the Portuguese Republic, it must be explicit that sovereign bodies cannot, jointly or separately, suspend the exercise of rights, freedoms and guarantees, except in the case of state of site. or state of emergency.
“The limitation of municipalities is the limitation of freedom of movement. I hope that someone will promote the constitutionality of this measure before the Constitutional Court, starting with the President of the Republic. This measure violates fundamental rights, I have no doubt, “he stressed.
This issue of violation of rights was also questioned, through social networks, by the dean of the University of Évora, Ana Costa Freitas. “We are neither in a state of siege nor in a state of calamity … I think!” He wrote on his Facebook page. However, despite all the controversy and doubts, some point out that there is a law that allows the government to “give wings” regarding the prohibition of rights.
The government resorts to the Fundamental Law of Civil Protection
Questioned by SOL, the constitutionalist Jorge Bacelar Gouveia assumed that this measure is “a dubious solution in terms of constitutionality”, but warned of the Fundamental Law of Civil Protection, which says that the declaration of the catastrophic situation can establish the fixation, for reasons security of themselves or of operations, “limits or restrictions on the movement” or permanence of people, other living beings or vehicles.
«In a state of calamity, the Basic Law of Civil Protection provides for the possibility of having sanitary fences. As it does not have that name, it continues to be a ban on the movement of people and a ban on people in certain spaces. This possibility exists when there is a state of calamity. However, it ends up being doubtful with respect to constitutionality, but I also understand that the Government does not have other options that can produce effectiveness to stop the pandemic, “added the constitutionalist, reinforcing that, although it is not in a state of emergency, there are restrictions. that are not explicit in the law and that must also be taken into account.
For SOL, Pedro Moniz Lopes, professor at the Faculty of Law of the University of Lisbon, goes further and emphasizes, in turn, that this measure does not contradict the Constitution at all.
«This limitation of circulation is a realization, by resolution of the Council of Ministers, of what already results from the Fundamental Law of Civil Protection. And there is another important aspect here, which is the Dynamic Protection of Fundamental Rights. The constitutional regime itself must always be read with certain agility, so that there is protection in dynamic terms, “he advanced, making it clear that the state of emergency is not necessary to restrict rights.
“Freedom of movement is not suspended. It is very limited and restricted for a very short period of time. The prohibition is between municipalities. And the restriction of rights is the daily life of a population ”, fired the law professor.
Stay home and national mourning
Due to the increase in the number of covid-19 cases, three municipalities in the country -Paços de Ferreira, Lousada and Felgueiras- began to have specific measures from midnight this Friday -for 15 days-, with the duty of permanence. at home.
Citizens must refrain from “circulating in public spaces and roads, as well as in private spaces and roads equivalent to public roads, except for a set of trips that are authorized, that is, for the acquisition of goods and services, for the performance of school and health professional activities ”. Private vehicles, however, have the right to drive as long as it is for “authorized activities” or “refueling at gas stations.”
Regarding the commercial area, all establishments begin to close at 10:00 p.m., except for pharmacies, medical offices, clinics and veterinary medical service centers, as well as service stations and service stations. It is also forbidden to hold events with more than five people, unless they belong to the same household, and to all fairs and markets. In addition, home visits and nurseries are suspended and it is still mandatory to adopt the teleworking regime whenever possible.
As a way of paying tribute to “all the deceased, especially the victims of the pandemic,” November 2 was also declared a day of national mourning, as announced on Thursday, at the end of the meeting of the Council of Ministers, the Minister of the Presidency, Mariana Vieira da Silva.
