Covid-19 and Right of Exception. The positive and negative points

  • Guilherme Dray
  • 1 April 2020

Care must be taken with these small (large) details and the precedents that are being created, which may later undermine democracy.

In my last article, entitled Acts of God, I warned of the advent of a period of Law of Exception, in which State restricts rights, freedom and guarantees and adopts extraordinary measures to support citizens.

Since then, a lot has happened. Positive things and negative things.



The Government has been showing leadership and proportionality.

The country needs it. In these situations, we better understand the importance of the Welfare State: it exists to protect citizens and help them in times of crisis and outbreaks, as well as in illness, unemployment and retirement. The existence of a universal and public healthcare system is vital.

Financial Aid

A huge number of exceptional and temporary measures has been approved, and a lot of legislation has been produced. Here’s what we already have, from A to K:

  • Decree-Law N.º 10-A/2020 – Establishes exceptional and temporary measures relating to the epidemiological situation.
  • Decree-Law No. 10-B/2020 – – Updates the salaries and the amount of monthly basic wages of the civil servants
  • DECREE-LAW No. 10-C/2020 – Establishes exceptional and temporary measures in the context of periodic technical inspections.
  • DECREE-LAW No 10-D/2020 – Establishes exceptional and temporary response measures related to electronic communications.
  • Decree-Law No. 10-E/2020 – Creates an exceptional scheme for public expenditure commitment.
  • DECREE-LAW No. 10-F/2020 – Establishes an exceptional regime for compliance with tax obligations and social contributions.
  • DECREE-LAW No. 10-G/2020 – Establishes an exceptional measure and protection of jobs (“Lay Off Fast Track”).
  • DECREE-LAW No. 10-H/2020 – Establishes exceptional measures to promote the acceptance of card-based payments.
  • DECREE-LAW No. 10-I/2020 – Establishes exceptional measures in the cultural and artistic sphere, especially for shows not performed.
  • DECREE-LAW No. 10-J/2020 – Establishes exceptional measures to protect the claims of families, companies, private institutions of social solidarity and other entities of the social economy, as well as a special regime of personal guarantees of the State.
  • DECREE-LAW No. 10-K/2020 – Establishes an exceptional regime of employees ‘justified absences for family assistance, in the employemnt context.


Depreciation of the National Assembly

The Government has adopted several restrictions on fundamental rights and freedoms, including movement and economic activity. This is a matter of the legal competence of the Assembly. It means that the government can only legislate if the House gives it legislative authorization. The Assembly didn’t do it.

What was the solution used by the Government? Through Law n.º. 1-A/2020, the Assembly ratified everything that was enacted by the Government, in a single provision (2.º). It doesn’t look good. “Parliamentary ratification” is not provided for in the Constitution, is not a good adviser and may set a precedent that distorts the separation of powers. In this case, it wasn’t the Government that went wrong. The Assembly allowed to get involved in this little “constitutional engineering”.

Legal Uncertainty

Legal certainty is essential. The Rule of Law is crucial for people to freely develop their personality and define their options according to the laws in force. It is not good to have laws that are passed one day, rectified the next, amended the next day and subsequently repealed, and to see the law that repealed it being also rectified one day after its publication. We’ve have been seeing this at this crisis. It’s bad for the citizens’ and for the trust in the legal system.

These two negative points may seem like small details, but they are not.

Today, we have a President of the Republic and a Prime Minister who inspire confidence. They are deeply democratic and committed to the common good. But you never know tomorrow. Care must be taken with these small (large) details and the precedents that are being created, which may later undermine democracy.

  • Guilherme Dray
  • is a Lawyer and Assistant Professor at the Faculty of Law of the University of Lisbon (FDUL)