Abstract

LOPES, Pedro Moniz. The meaning and scope of «freezing» the exercise of fundamental rights in the declaration of state of emergency. e-Pública [online]. 2020, vol.7, n.1, pp.118-152. ISSN 2183-184X.

It is sustained that the concept of «freezing» of the exercise of fundamental rights cannot be adequately understood (the same happens with several subjects connected with fundamental rights) absent a prior research regarding the logical unfolding of «legal positions». The paper starts out with a depiction of «legal positions» in its basic division between «protected liberties» and «state duties to something», as well as the logically entailed correlatives. It is argued that «protected liberties» are equivalent to «claim-rights» to the factual conditions that enable exercising a «liberty», thus generating the duty to refrain from interfering in such conditions. Subsequently, the «freezing effect» enacted by the presidential decree that declared the state of emergency, qua removal of the constitutional «protection» of such liberties, is scrutinized. The following pages aim at describing the requirements to create norms, through the presidential decree, over the conditions to interfere in the «unprotected» liberties against the background of the concepts of «strong permissions» and «weak permissions». This theoretical framework allows for the specific analysis of the presidential decree no.14-A/2020, of 18 March, particularly the «normative delegation» carried out by means of remission from the presidential decree to governmental rulemaking. This «normative delegation» is dissected through the lens of patterns of normative efficiency, the principle of separation of powers and the requirements for a dynamic protection of fundamental rights. Lastly, it is discussed whether the legal effects of the «right to liberty», enshrined under article 27 of the Portuguese Constitution, should have been frozen by the presidential decree. It is submitted that the answer is no.

Keywords : legal positions; protected liberties; freezing of fundamental rights' norms; presidential decree; normative delegation.

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