This is one of the headlines this morning in Diário de Notícias which explains how courts are pulling authorities up on draconian measures of combat against Covid-19.
The issue is ‘legality’. Now that the country has emerged from the State of Emergency in place through last winter, rights and liberties enshrined in the Portuguese Constitution are effectively ‘restored’.
Thus impositions on people’s freedoms can be challenged – and that is just what is happening.
Says the paper: “Requests for writs of habeas corpus to avoid compliance with prophylactic isolation are increasing. Public health doctors feel de-authorised and are asking the government to clarify the law. The president of the Syndical Association of Judges agrees, and says it should have been done a long time ago…”
‘Sources’ interviewed for the article explain: “Some judges consider the suspension of fundamental rights, such as liberty, cannot be ordered by a government decree, as in the case of the State of Calamity, but only through a law of the Assembly of the Republic as set out in the constitutional framework”.
These sources (public health doctors) concede that the people ordered into prophylactic isolation are invariably “not sick. Or more to the point are not showing symptoms at that moment in time”.
They argue however that they nonetheless “represent a danger because they could be incubating (Covid-19) and placing others at risk”.
The courts however have been seeing the situations arriving before them differently.
Requests for writs of habeas corpus are now not only lodged by people who have been travelling (and told to isolate), they are coming from people faced with isolation in both a work and social context.
Says DN, they are coming from every part of the country, but mainly from citizens in the ‘large metropolitan areas’.
Said one of the ‘sources’ (“requesting to remain anonymous”): “There are particular courts where these decisions (to free people from restrictions) are recurrent, giving us the impression that there are benches of legislators dissatisfied with the way measures have been legally framed and wanting to ensure that their interpretation and position prevails…
“For us, it is important that Justice looks at reality and sees why we are making these decisions. Equally we feel the government should already have done something about this”.
By coincidence, this article emerged just as health minister Marta Temido told reporters that a return to State of Emergency could not be discounted.
The contention seems to fly in the face of messages given by President of the Republic Marcelo Rebelo de Sousa who has been going out of his way to say there is no reason whatsoever to return to a State of Emergency, as the numbers of deaths and hospitalisations simply do not warrant it.
A State of Emergency however would ensure that individual rights and freedoms were once again compromised.
For now, DN’s article simply stands as it is: a cry of alert from the medical profession.
Much is made of their “increasing feeling of being de-authorised”.
“What is our role?” One questioned. “We are being de-authorised as health authorities of the State, and it is important to understand how we can and should act because rules from the DGS (health directorate) and resolutions from the Council of Ministers continue to come through, but then the courts interpret them another way”.
The gist of the article appears to suggest the courts are acting contrary to authorities’ efforts and desire to ‘protect the nation’s health and the country as a whole’.
Sources, always anonymous, “defend” that “something has to be done because the juridical regime underpinning our decisions cannot be dubious”.
In the wider context, the article came as prime minister António Costa has blamed ‘diffusion of the virus’ on ‘clandestine and non-clandestine gatherings’ and people’s ‘irresponsible behaviour’.
It also comes as SIC television has broadcast live footage of mass gatherings in Albufeira, Algarve, last night in flagrant violation of the 11pm curfew in place, due to the fact the municipality is one of nine in the region suffering elevated case numbers.