The crisis caused by the new coronavirus pandemic has led to exceptional measures in many countries. The governments of the Member States of the European Union and Latin America have decreed a state of alarm or a state of emergency, which mobilises the security and civil protection forces, and have announced a set of measures to prevent the expansion of Covid 19.
This includes the closure of all educational centres, the closure of borders, the broad paralysis of any economic activity and the confinement of the population. Many of these measures have decisively reduced constitutionally established individual rights and imposed limitations whose legality may be questioned under the rule of law in modern democracies.
The modern constitutional rule of law is a system of guarantees
Regulatory powers, the supremacy and rigidity of constitutional law, together with mechanisms of control of constitutionality, are the means by which the rule of law is guaranteed in our modern societies. Respect for human dignity as a condition of justice, is the primary objective of such a guarantee.
However, fundamental rights, though considered essential, are not absolute. Individuals and their individual rights, understood as a guarantee of the current state of social justice, cannot be seen in isolation but must be considered within the context of their social function as a guarantee of the individual’s overall development in society.
In the current state of world pandemic crisis, the social function of individual rights manifests itself overwhelmingly and the preservation of law prevails as a valid institution for the whole of society, where society provides the framework within which multiple interests coexist.
Legal justification for the limitation of rights during the state of alarm
The current state of emergency might be said to be a legitimate mechanism to guarantee democracy, but it must be adjusted to the legitimate aspiration of this time. The transition factor must be present in the exceptional nature of this time, since total annulment would eliminate the teleological meaning of the formulation of an exception.
The constitutions of European States provide for the possibility of public powers declaring a state of emergency when the free exercise of rights and freedoms of citizens, the normal functioning of democratic institutions and that of essential public services for the community or any other aspect of public order, are so seriously altered that the exercise of ordinary powers would be insufficient to establish and maintain their exercise and functioning.
The essential content of the declaration is the suspension of certain rights and freedoms, on the basis of giving greater freedom of action to the Government to enable it to restore the altered public order. This suspension of the exercise of rights, freedoms and guarantees must meet the following conditions: (a) it shall always respect the principle of equality, proportionality and non-discretion; (b) it must be done expressly, and; (c) the principle of proportionality requires that the act declared by the corresponding State determines what guarantees must be suspended for the necessary restoration of public order.
What rights can and should not be affected
We have observed that numerous countries have declared states of exception with different limitations on individual rights. However, we understand that the declaration of a state of alert or state of emergency shall in no case affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, nor affect the non-retroactive nature of criminal law, the rights of those on trial to defence, or the freedom of conscience and religion.
Faced with the pandemic, European states such as Spain, Italy, France and Portugal have declared states of exception which have greatly limited people’s freedom of movement and to a large extent have paralysed economic activity. The scenario, of course, is one which is serious, which should not be underestimated since the situation necessarily imposes limitations on the full effectiveness of certain rights and freedoms, but with the conviction that with everyone’s collaboration, which is already proving to be exemplary, it will allow us to overcome the situation in which we find ourselves. Democracy has therefore not been suspended; the executive powers are only applying constitutional norms established by the rule of law.
Glória Alves is a prosecutor and deputy coordinator of the component for Cooperation between Justice Systems.