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The President of the Republic addressed a message to Parliament concerning the enacting of the bill that transfers legal authority from civil governments and civil governors to other Public Administration bodies in issues where legislative authority rests with Parliament.

Following is the text of the message addressed by the President of the Republic:

“Having enacted, to be published as an organic law, Parliamentary Decree No. 12/XII, which transfers legal authority from civil governments and civil governors to other Public Administration bodies in matters where legislative authority rests with Parliament, I decided to address Members of Parliament, as provided for in item d) of article No. 133 of the Constitution, the following message:

Article No. 6 of the referred Decree alters §4 of article No. 20 of Law No. 4/86, dated 30 September, concerning the regime of state of siege and state of emergency, transferring to the district operational commanders of distress operations the local coordination, in the area of their jurisdiction, the declaration of the state of emergency in the continental territory.

This choice of the legislator is not compatible with the legal substantiality and operational effectiveness of the state of siege and state of emergency juridical regime, essential for the safeguard of democratic Rule of Law.

It clearly results, particularly from §§ 2 & 3 of article No. 19 of the Constitution that the genuineness of the assumptions of state of siege and state of emergency – effective or imminent aggression by foreign forces, grievous threat or perturbing of constitutional order or public calamity - and that the state of emergency should be declared even when such common assumptions have lower grievousness. This constitutional regime is legally covered under articles No. 1, §1, No. 8, §1, No. 9, §1, and No. 14, §2, of Law No. 44/86, dated 30 September.

That is, the state of siege and the state of emergency differ as to the material grievousness inferred from its common assumptions.

As such, even if public calamity may lead to a state of emergency, it cannot be sustained that the declaration of a state of emergency is confined to situations of public calamity.

In effect, it is not only the Constitution that determines that all issues – including those related with effective or imminent aggression by foreign forces, grievous threat or perturbing of democratic constitutional order – may be the reason for a declaration of a state of emergency – the degree of grievousness being the sole variation – but the law itself uses the expression “specifically” that leads to a non exhaustive open schedule, thus including issues other than those related to public calamity.

That option of Parliamentary Decree No. 12/XII of replacing civil governors with the district operational commanders of the Integrated System of Protection and Distress Operations, ruled by Decree Law No. 134/2006, dated 25 July, in the local coordination of the declaration of the State of Emergency, seems to assume a necessary coincidence – that is anyway nonexistent – between the state of emergency and the situations that limit the civil protection activities.

In those instances when the state of emergency may be justified by different assumptions than those of civil protection, the legal dictum for a coordination of the declaration of a state of emergency in the districts necessarily carried out by the district operational commanders of distress operations could, very probably, not just show itself as inadequate but, above all, inhibit the appointment of the holder of the required authority to materially carry out such a coordination, with the grievous consequences that must be urgently avoided.

Although I have decided to enact this bill, since it is comprised in the guiding lines that the Government assumed as the body responsible for the Country’s general policies, I consider, however, that the issue under appreciation should be the object of renewed consideration by Members of Parliament, whether due to the lack of balance it brings into the legal system of national security, or to the grievous consequences it can cause whenever it is necessary to face situations that would justify the declaration of a state of emergency.