Crime of disobedience
Head of State;
Relations with executive bodies;
State of emergency and emergency powers;
Limits and restrictions.
On May 27, 2021, the Constitutional Court of Portugal (3rd Section) issued Acórdão n.º 352/2021, ruling on the mandatory appeal by the Office of the Public Prosecutor (Ministério Público) of a judgement by a court of first instance in Lisbon (Tribunal Judicial da Comarca de Lisboa Norte) striking down article 43(6) of Decree 2-B/2020, which increases in one third the minimum and maximum punishment for the crime of disobedience provided for in article 348(1)(b) of the Penal Code. In the proceedings, the defendant had refused to comply with an injunction by the police to return home and observe the lockdown then in force.
Decree 2-B/2020 is an ordinance issued by the Executive in the exercise of its power to execute Presidential Decree n.º 17-A/2020, which renewed the state of emergency declared in Presidential Decree 14-A/2020.
The fundamental question of the appeal was that of determining whether the Executive branch has the constitutional power, under a regularly declared state of emergency, to issue norms in matters concerning crime and punishment, an area normally reserved to parliamentary statute, as provided for in article 165(1)(c) of the Portuguese Constitution – namely, the power to increase the minimum and maximum punishment for the crime of disobedience to injunctions aimed at enforcing emergency measures dictated by the ongoing sanitary crisis, such as lockdowns, curfews, and the like.
A majority (3 out of 5) of the judges of the 3rd Section was of the view that the power to execute the declaration of a state of emergency, encompassing all manner of measures suitable and necessary to restore constitutional normalcy, is directly based on article 19(8) of the Constitution. Once a state of emergency or state of siege is declared, an exceptional framework of public power emerges, within which the Executive is empowered to not only issue primary norms in matters related to basic freedoms, such as those imposing a lockdown, an area normally reserved to statute, but also to issue secondary norms in the area of crime and punishment, so long as these partake of its basic role as an emergency power.
Although article 19(7) of the Constitution rules out any impact of the declaration of a state of emergency or state of siege on the constitutional norms concerning the competence and functioning of the branches of Government, the majority was of the view that no such consequence follows from the recognition of an emergency power extending to the area of crime and punishment. For this power is absolutely exceptional and does not disable the normal operation and powers of Parliament. It is a power based on an extraordinary title (the declaration of a state of exception); it is temporary and precarious (lasting no longer than the declaration itself); and aimed at a specific goal (to restore constitutional normalcy). The Executive operates, within this framework, as an extraordinary legislator ex ratione necessitatis – i.e. for reasons of expediency. Moreover, if one were to draw the opposite conclusion from article 19(7), no emergency power could possibly exist, since such a power operates by its very nature within the area of basic freedoms also reserved to parliamentary statute; that would render the entire regime of states of exception in the Portuguese Constitution virtually inoperative and nonsensical.
The Court stressed that the emergency power of the Executive under a regularly declared state of exception is far from arbitrary or untrammeled: on the one hand, its exercise is bound to the principle of proportionality and subject to judicial review; on the other hand, the Executive is politically accountable to the President and to Parliament (article 190), the latter having the specific constitutional duty to monitor the execution of the declaration of a state of emergency or state of siege (article 162).