Messed with the Constitution? Yes, but with discretion. This is the view of Carlos Blanco de Morais, Professor of Constitutional Law at the Faculty of Law of the University of Lisbon (FDUL), who assumes that the DN is critical “with regard to a comprehensive constitutional review” as it is underway. “Constitutions are not exactly fads that can be changed, they are stable norms. They are state and regime consensus that must somehow strive for stability. Therefore, they cannot be permanently changed,” he argues. .
However, speaking at FDUL this week, following the XI Lisbon Legal Forum organized by Lisbon Public Law (the only research center in the field of law classified as Excellent by the FCT), Carlos Blanco de Morais points out two areas that seem important to to review: metadata and the establishment of an “institution [legal]which makes it possible to introduce restrictions, if necessary, for health reasons, such as pandemics.
With regard to metadata, he points out that “it is of fundamental importance that – with the intervention of the judicial authorities – there should be the possibility, for the purpose of fighting crime and in defense of the democratic state and public security, not the content, but the movement of communications of persons under investigation”. This, he argues, is “fundamental”, not only as a “preventative element, but also as evidence”, and “past consequences must be protected”, preventing tampering with already completed legal proceedings. It is therefore critical of the decision of the Constitutional Court (TC) to declare unconstitutional the rule that provided for the retention of this data for a possible criminal investigation.
On the hypothesis of the creation of a possible specific legal figure for health reasons, Carlos Blanco Morais sees scope for amendments to Article 27.º (“Right to liberty and security”), where, he argues, “the possibility of restricting freedom of movement and being able to settle citizens in certain parts of the territory can be opened up due to sanitary fences”, something that the constitution does not currently provide.
But in addition to these two areas – which are on the table of the final constitutional review committee and on which the PS and PSD seem to be agreeing – he points to another area where changes could take place for him: the law on the regulation . bodies. For the professor – who was a consultant for constitutional affairs at the civil house of the presidency of Cavaco Silva – the regulatory entities should have the members of the executive bodies, nominated by the government, for example, and appointed by the president of the republic.
Further, With war on Europe’s doorstep, Blanco de Morais still sees room to tinker with another aspect of the Constitution: the armed forces. “As a result of the Freitas do Amaral law of 1982, missions have focused almost exclusively on the military defense of the state against external aggression,” he says, noting that the armed forces “should have the means to defend, using of violence, the military infrastructure: barracks, military convoys for example”.
“If there is a terrorist or undetermined threat to infrastructure such as [as de] provision of electricity, water, telecommunications, the armed forces should be able to temporarily secure these infrastructures”. new threats from terrorism and organized crime”.
Forum was an opportunity for discussion
The statements to the DN were made at the FDUL on June 28, the last day of the XI Legal Forum in Lisbon, which brought together specialists from Portugal and Brazil. The focus here and there was on government policy.
With Dieter Grimm, “one of the greatest professors of German public and constitutional law”, such as keynote speaker at the opening, there were interventions from figures like Marcelo Rebelo de Sousa, President of the Republic, Augusto Santos Silva, President of the Assembly of the Republic, Michel Temer, former President of Brazil, or Flávio Dino, Brazilian Minister of Justice, the balance made by Carlos Blanco de Morales is positive. “A step forward has been taken in the scientific discussion about the relationship between new technologies and fundamental rights,” says the professor.
In the end, the interventions of the meeting are converted into scientific articles, which are then published in a book. “It was perhaps the best forum of the 11 ever held. There were, in fact, many parallel tables where it was possible to discuss the specialty, essentially, government policy in Portugal and Brazil. Even for the number of tables and the quality of the speakers, I think this forum has exceeded all expectations,” he concludes.
Source: DN
