After all, what is the Constitutional Court? (And because it suddenly became so desirable)

“Three things must be done

by a judge: listen carefully,

consider soberly

and decide impartially.”

Socrates

The Constitutional Court was created in 1982, following the constitutional review, replacing, in good time, the Council of the Revolution, and is currently governed by Law no. 28/82, of 15 November¹.

This supreme body, whose main, but not exclusive, competence is to assess non-conformities of other legislative texts with the content and principles contained in the Constitution of the Portuguese Republic, is made up of 13 judges, 10 of which are appointed by the Assembly of the Republic (of which 6 will be obligatorily chosen from career judges and the others from jurists, and may merely be graduates, without a master’s degree or doctorate) and 3 co-opted by them.². Such candidacies are presented in a complete list by a minimum of 25 and a maximum of 50 deputies.

In other words, despite being a judicial body, it still has a notable political nature, considering the way in which the judges that comprise it are, so to speak, selected.

Interestingly, for decades, attention was completely diverted from this judicial body, apparently because there was always, at least relative, consensus regarding the appointed members.

However, especially during the period of troikait was through this that several decisions — which essentially harmed public servants, retirees and active workers — were no longer applied or never saw the light of day.

It turns out that, after departures due to clearly and unequivocally exceeding the maximum number of years in office (nine years, non-renewable, but whose termination is dependent on the inauguration given to the new designated judge), the situation became extreme, mainly after the left demonstrated against the fact that the party that already claimed to intend to “tear up the Constitution” had, apparently, won the political right to appoint judges, via the Assembly of the Republic and as a result of the electoral result it had³.

Having arrived here, and returning to its main competence, whether in terms of preventive inspection or in terms of successive inspection of constitutionality or illegality, it is important to mention that our Constitution is one of the most advanced and the one that grants the most rights to citizens⁴. In other words, when Fundamental Rights are discussed, it is in the support of this text that those who find themselves affected will be able to find, as they have often found, the basis for their claims to be, ultimately, met in the national order.

Often forgotten, even by jurists, it is also from its text that rights that we all take for granted are removed, but which may truly come into question, even before the very review that some political parties have already announced their intention to carry out.⁵.

From the right to equality and non-discrimination, to physical and moral integrity or the presumption of innocence, which many like to criticize except when in their own cause, to the prohibition of dismissals without just cause, but also including the right to health, freedom and security, the bulk of the rights that we often claim for ourselves are contained in the constitutional text, also often called (and, not by chance…) the Fundamental Law.

From what has been said, it seems that, at least in my interpretation, regardless of who appointed them or their specific identity, those appointed to the Constitutional Court have a duty, even more than legal, ethical to decide in accordance with the principles, rights and duties enshrined in the Constitutional Text, instead of trying to change the game, that is, its spirit within doors.

Hence, when I see the source of criticism of some of the rights to which I referred, boosted, I am not unaware, by a single specific process, which, thanks to its specificities, deserves an analysis that does not generalize what is not common, I think that, often, the heralds of measures that violate the constitutional text either never find themselves faced, even through no fault of their own, with a judicial problem or, at that exclusive moment, tried to send their vaunted “convictions to the nettles.”

Finally, although it is accepted that the Constitution is the daughter of the 25th of April, what is truly revolutionary about it is the consecration of the Social Rule of Law (which, even so, has failed us so much…), the separation of powers and a very diverse list of rights that protect citizens, not only from each other but from the State itself.

Now, it cannot be by mere chance that, suddenly and after this issue had arisen for more than a year, the appointment of judges was brought to the media agenda, revealing the existence of a political crisis. From what has been understood, it is not even about the identity of specific people, but about the attempt of a kind of assault on the Palace so that decisions take a different angle.

I cannot, nor do I think, that anyone democratic can stop fighting for the Constitution, especially when it comes to the catalog of Fundamental Rights that guides us today.

To do without this is to do without, above all, Freedom and Democracy, even though one could claim the opposite, using sweet words to do so. More than as Régio said, I cannot, nor do I want to, “go that way”. Maybe it would be worth thinking about.

Write without applying the new Spelling Agreement

¹Object of subsequent republication, due to the entry into force of Organic Law nº 1/2018, of April 19.

²Among other important powers, in addition to those listed above, this may include designating members of the Entity for Transparency and applying sanctions for violations of the regime governing the exercise of functions by holders of political positions and senior political positions.

³It would be, in a way, putting a fox in the coop and believing that it would try to ensure the integrity of the chickens.

⁴Distinguishing, in very simplistic terms, between preventive inspection, as it occurs before the diplomas come into force, and successive inspection, which is divided into abstract or concrete, which carries out the same inspection with the diplomas under analysis already in force.

⁵This phrase is not intended to detract from the importance of other supra-national texts, such as the Universal Declaration of Human Rights or the European Social Charter.