Yesterday’s decision by the Constitutional Court has further divided the country – and now it emerges that it was by no means consensual.
The vice-president of the court, Gonçalo Almeida Ribeiro, has criticised the declaration of unconstitutionality of the law on foreigners, considering that the government decree was “perfectly reasonable”.
In a joint statement of vote attached to the ruling that declared five provisions of the law on foreigners unconstitutional, Almeida Ribeiro, and judge José António Teles Pereira both said they disagreed with the decision.
Although some of the rules contained in the government’s decree “are controversial and debatable”, they are “perfectly reasonable and legitimate”, constituting “a normal expression of the democratic arbitration of political dissent”, the pair explain.
“Legislation in a constitutional democracy should not be the product of a transaction between the political preferences of the parliamentary majority and the majority of the members of the constitutional judiciary, but an exercise of programmatic freedom limited by respect for the fundamental rights and structuring principles of a republic of free and equal people.”
“For a constitutional judgment informed by such abstract and elastic values to prove an example of legal reason, rather than an ideological choice, it must satisfy a demanding burden of justification”, add the two judges – considering this was not the case in the arguments of the ruling released shortly after 6pm last night.
The judges recognise that the legislator’s choices regarding the rights of foreigners must “deserve strict scrutiny and intensified control by the constitutional judge.”
“However, intense judicial scrutiny cannot be a pretext for judges to transfer to the constitutional plane the convictions they legitimately hold as citizens – violating democratic equality – but rather constituting an increased duty on them to familiarise themselves with the relevant facts, examine the applicable texts, consult authorized doctrine and articulate consistent, careful, considered and persuasive arguments.”
Gonçalo Almeida Ribeiro and José António Teles Pereira acknowledge that this was not “truly feasible” in this case, since President Marcelo requested that the court issue a ruling within 15 days – but they consider that, given the urgency of this request, “the best thing that could be done, with a sense of institutional responsibility, would be to seek support from other jurisdictions,” such as the European Court of Human Rights or the Court of Justice of the European Union.
“Instead, a ruling is issued in which unprecedented constitutional demands are made and the outline of a set of specifications is drawn up.”
Gonçalo Almeida Ribeiro and José António Teles Pereira are not the only judges who disagree with yesterday’s decision: Judge Maria Benedita Urbano also disagreed with the majority decision.
In a statement of vote, she considered that the rejection of the diploma “has the consequence of maintaining an open-borders policy” while the decision “shows itself to be oblivious to (or does not take due consideration of)” the “current socioeconomic reality of the country, with vital sectors, such as health, housing and education, at risk of collapse.”
“All you need to do is live in Portugal and pay attention, and more than that, feel the reality that surrounds us, to be sure that the catastrophic situation we are currently witnessing in our country does not fall into the category of ‘fake news,'” she wrote.
The only other judge who disagreed with the court’s decision was João Carlos Loureiro, who, in a statement of vote, argued that, “in a framework of separation of powers, what each constitutional judge thinks about the merits of the solutions resulting from political-legislative choices is irrelevant.”
It should “only be guided by a legal-constitutional assessment, in a framework marked by relevant international normativity, in which international and supranational references are important”.
However, Loureiro acknowledges that the decision was taken “under particularly difficult circumstances”, alluding to the fact that the President of the Republic asked the Constitutional Court to issue a ruling within fifteen days.
source: LUSA
