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The government’s intention to impose “the use of the StayAway Covid application, in the workplace, academia, in the armed and security forces and in the public administration in general” raises controversy among constitutionalists.
There are those who think that it is unconstitutional, there are those who think that, on the one hand, it is, but on the other hand, it is not, and there are also those who think that it is constitutional, without a doubt. The DN listened to three constitutionalists, who issued, as is the norm, three different opinions.
Pedro Bacelar Vasconcelos, a deputy of the PS bench and president of the parliamentary committee on Constitutional Affairs in the last legislature, hopes to see the proposal that will be submitted to the Assembly of the Republic, but now confesses his “perplexity regarding the viability” of a proposal of these characteristics.
For practical reasons, before reaching the constitutional ones, if the use of a mobile phone is not mandatory, how can the application be enforced?
Jorge Reis Novais, professor and former constitutional adviser to President Jorge Sampaio, also argued that it is unconstitutional to impose by force of law the use of an application on a cell phone and at the same time it is not at all mandatory to use a cell phone or use the type of cell phones. that can host that applicationsmartphones). “Not everyone has a cell phone or that type of cell phone, I don’t see how this can be imposed,” he tells DN.
“As far as the application is known, there is no invasion of privacy.”
On a positive note, Reis Novais highlights, however, the fact that the government now intends to legislate through a bill to be debated and voted on in Parliament, thus giving the diploma more legitimacy. “It is a positive point because so far the government has done things alone. It is a step that I welcome.”
Also in his opinion, the question of unconstitutionality does not arise in terms of preserving (or not) privacy. “As far as the application is known, there is no invasion of privacy,” says the constitutionalist.
Art. 18 of the CDP: “The law can only restrict rights, freedoms and guarantees in the cases expressly provided for in the Constitution, and the restrictions must be limited to what is necessary to safeguard other constitutionally protected rights or interests.”
Who has no doubts about the constitutional alignment of the government intention is Bacellar Gouveia.
Heard by the DN, this law professor argues that the fact that the executive makes use of a law that will have to be discussed and voted only in Parliament, already gives greater legitimacy to the intention.
Remember, on the other hand, that although the application may reduce people’s right to privacy, the truth is that the Constitution establishes that, in certain exceptional situations, there are limitations, in the name of a greater good (the health of the community).
Bacelar Gouveia recalls, in this context, Article 18 of the Constitution: “The law can only restrict rights, freedoms and guarantees in the cases expressly provided for in the Constitution, and the restrictions must be limited to what is necessary to safeguard other rights or interests constitutionally protected.. “
Therefore, he adds, if the law proposed by the government is “proportional,” then it will be in accordance with the Basic Law.
The pandemic and, with it, the imposition of limitations on citizen rights have already led to the intervention of the Constitutional Court.
In this case, by a determination of the regional government of the Azores to impose a mandatory 14-day quarantine on any person arriving in the archipelago, whether or not they were infected.
Politically, the government’s intention has already provoked reactions, but only on the right.
“It is legally very complicated to force people” to use an application “that monitors their behavior”, since “the application was created, designed and advertised as an application for voluntary use, the entire process of to download‘ gives application, connection by Bluetooth, uploading the code, is voluntary “and” raised serious legal problems to exist as it is, “said congresswoman Ana Rita Bessa, from the CDS-PP.
The presidential candidate of the Liberal Initiative Tiago Mayan, for his part, expressed on Facebook his “total opposition” to each and every one of the ideas that do not go through “voluntary adherence.”
On social media, particularly in TwitterThis governmental idea quickly became the most talked about topic, drawing criticism from ultra-liberal voices, such as Ricardo Arroja, as well as from left-wing personalities, such as commentator Daniel Oliveira.
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