The legal impact of coronavirus

Coronavirus threatens to become a serious problem worldwide. Although medical data have shown that this virus has a mortality rate well below that of previous outbreaks, standing at 10% of those infected, the truth is that the high rate of spread of the virus, with each patient transmitting on average the virus to 2.68 people, makes the situation extremely worrying. Indeed, this rate of spread constitutes a high risk to public health, which is why it is necessary to criticize the initial reaction of WHO, which hesitated to declare a situation of global emergency when in the eyes of all it was already.

It is therefore necessary to adopt measures to protect people from this infectious outbreak. In this context, it has been emphasized that the Portuguese Constitution does not allow the mandatory quarantine imposition on people infected with a virus. In fact, article 27, paragraph 3, h) of the Constitution only admits the admission of a psychiatric anomaly to an appropriate therapeutic establishment, decreed or confirmed by the competent judicial authority. Since a situation of psychic anomaly is not at stake, hospitalization of a person with a contagious disease is therefore not admissible. However, the Basic Law of Health, law 95/2019, of 4 September, attributes to the health authority the possibility of “triggering, according to the Constitution and the law, the internment or compulsory provision of health care to people who would otherwise constitute a danger to public health ”(Base 34, no 2, b)).

 The aforementioned law also provides that “in a situation of public health emergency, the member of the Government responsible for the health area takes the necessary exception measures, if necessary mobilizing the intervention of private entities, the social sector and other services and entities of the State ”(Base 34, no 3). And it is also attributed “in particular, to the competent bodies to study, propose, execute and inspect the necessary measures to prevent the import or export of diseases subject to the International Health Regulations, to face the threat of the spread of communicable diseases and to promote all health operations required for the defense of the health of the international community ”(Base 35, No. 2). It’s not like this,

In any case, the health police measures, although based on the collective interest, conflict with the rights, freedoms and guarantees of citizens (Article 18 of the Constitution), the restriction of which can only be carried out to ensure other rights and constitutionally protected interests, and the extent and scope of the essential content of constitutional precepts cannot be reduced (Article 18, paragraphs 2 and 3 of the Constitution). Now, the doctrine has been considering that the resolution of the conflict between individual rights, freedoms and guarantees and the collective interest must be based on the following three requirements: necessity, adequacy and prohibition of excess. The necessity criterion imposes the existence of an injury or an effective risk of injury to public health as a precondition for any health police measure. 

The adequacy criterion requires that the measure taken is effectively suitable to remedy the damage to public health or to mitigate the possibilities of verifying that risk. Finally, the prohibition of excess imposes that the restriction on fundamental rights does not affect the fundamental content of these rights and is proportional to the need and adequacy of the sanitary police measure. Ultimately, in the most extreme situations, a state of emergency may be enacted and the rights, freedoms and guarantees may be suspended, pursuant to Article 19 (3) of the Constitution, but even in this context, the restriction it could only be partial. the prohibition of excess imposes that the restriction on fundamental rights does not affect the fundamental content of these rights and is proportional to the need and adequacy of the sanitary police measure. 

Ultimately, in the most extreme situations, a state of emergency may be enacted and the rights, freedoms and guarantees may be suspended, pursuant to Article 19 (3) of the Constitution, but even in this context, the restriction it could only be partial. the prohibition of excess imposes that the restriction on fundamental rights does not affect the fundamental content of these rights and is proportional to the need and adequacy of the sanitary police measure. Ultimately, in the most extreme situations, a state of emergency may be enacted and the rights, freedoms and guarantees may be suspended, pursuant to Article 19 (3) of the Constitution, but even in this context, the restriction it could only be partial.

In an extremely responsible attitude, the Portuguese removed from Wuhan opted for a voluntary quarantine, which is to be welcomed. Susan Sontag wrote that “disease is the dark side of life, a very heavy citizenship. At birth, we all acquired a dual citizenship: that of the realm of health and that of illness. And although we all preferred to use a good passport, sooner or later, each one of us is obliged, even if only momentarily, to identify himself as a citizen of the other area ”. It is precisely because we know this that we all owe solidarity and support to anyone affected by the disease, and any health police measure must always respect the rights of patients.

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