The system for appointing the 13 judges of the Constitutional Court (TC) comprises ten judges elected by a majority of two thirds of the deputies present, as long as it is greater than the absolute majority of deputies currently serving in the AR, through secret ballot, and three judges co-opted by them. Constitutional practice since the existence of the TC (after the constitutional review of 1982) has resulted in a balance between judges appointed by the two founding parties of the democratic regime that emerged from the 25th of April.
This does not mean – let’s be clear – that there are parties that “own the system”, nor that the institutional building is immutable.
But it does mean two things: i) that an amendment that puts the genetic constitutional balance at risk is not a matter of fighting for positions, but a constitutional rupture, and may constitute a step towards regime change; ii) that the composition of the TC would be structurally changed (for much longer than the 9-year term of the judges) depending on a current situation in Parliament.
And there is a third dimension: much more representative than the difference of two deputies (between PS and Chega) is the fact that there is a clear majority of Portuguese, more than two thirds, who voted for parties that defend the Constitution and support the democratic regime, whether in the last legislative elections or in the recent presidential elections, in which the rejection of the populist extreme right was clear. In Portugal there is a clear majority in defense of the Constitution.
In the current composition of the AR, the two-thirds necessary to elect TC judges can only be achieved with the votes of the PSD together with the PS or Chega (and any of the other parties).
It is, therefore, the PSD’s option to decide with whom it makes an agreement. Now, in addition to the structural aspects that I mentioned before, it is necessary to draw political consequences from the PSD’s choice to choose as a partner an anti-system party (I remember that at the beginning of the current legislature, André Ventura referred to it as the “last of the Third Republic”) instead of a founding party of Democracy.
The end of red lines on an essential matter for the democratic regime, as has already happened in other fundamental issues even in violation of the Constitution (approving legislative solutions that the TC has already considered unconstitutional, unanimously in some cases and by a large majority in other cases) was not approved electorally. On the contrary, the majority of voters clearly defend the opposite and their position will be undermined if this were to happen.
A final note: the names of the candidates that are specifically nominated and the respective parliamentary hearing will be decisive for the decision that each of the deputies has to take, by secret vote, regardless of the leadership’s indications. And here I leave my confidence and my appeal to the conscience of the moderate right-wing deputies not to allow, for the first time in 50 years of Democracy, respect for the Constitution, of which the TC is the main guarantor, to be called into question.
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