With the eighth revision of the constitution looming, and without the work of the final committee that will lead the process having begun, the focus of the greatest controversy seems to have been found: the possibility of supporting incarceration in the constitution of people with “serious infectious diseases” (or suspicion), with validation to afterwards by judicial authority. A balanced formulation, as opposed to the right to health protection, or an unacceptable curtailment of the rights, freedoms and guarantees enshrined in the constitution?
Luís Menezes Leitão, president of the Bar Association, has been one of the most critical voices of the measures restricting freedoms taken outside the scope of the state of emergency during the pandemic period, which he always qualified as unconstitutional. Reservations he now makes with the constitutional amendment proposals of both the PS and the PSD. “What is at stake is a massive restriction on people’s right to freedom. To tamper with the right to liberty is to tamper with the central core of our constitution. And the constitution is being revised to protect the state, and in this case administrative entities “the power to arrest a person in practice”points out the also professor at the Faculty of Law in Lisbon.
The criticism ranges from the Socialists’ proposal to that of the Social Democrats: “The PS project uses a rather shocking euphemism, it says ‘separate the person’, it is not known what that means and under what conditions. It is extremely serious, and it is done by decision of an administrative body”.
It follows, concludes Menezes Leitão, that “the legalization of the deprivation of liberty, which is essential”. And, on the other hand, “a mere suspicion is enough, which is even more serious: there is not even proof that the person has an infection, the fact that there is a suspicion is enough to deprive people of their freedom arbitrarily “.
The PSD project is also “serious” in this regard. “In practice it does the same thing, but it says ‘by common law’. It deconstitutionalizes the regime of deprivation of liberty, which should be very well regulated in the Constitution, to prevent abuse.”
Referring to more than two dozen declarations of unconstitutionality that the Constitutional Court has already ruled on restricting freedoms during the pandemic, the president argues that “everything that happened outside the state of emergency was unconstitutional. The goal is to make constitutional a posteriori, which is wasn’t then”.
A “new balance”
The proposal for a constitutional revision of the PS amends Article 27 of the Constitution – which lists the situations in which deprivation of liberty of citizens is allowed – by adding a new paragraph, which provides for the “separation of a person with a serious infectious disease or for which there is a well-founded fear of the spread of a disease or serious infection, determined by the health authority, by reasoned decision, for the time strictly necessary, in case of a public health emergency, with a guarantee of urgent appeal to the judicial authority”. The PSD uses the same method, a new paragraph in Article 27, in which the “detention or hospitalization for reasons of public health of a person with a serious infectious disease, for the time strictly necessary, is determined or confirmed by the competent judicial authority” determined.
For Jorge Bacelar Gouveia, it is not about a limitation of rights, but about a “new balance” between the right to freedom and the right to protection of health. And if the question of the intervention of a judge has only raised doubts a posteriori, the constitutionalist argues that there must be an “automatic” intervention of a judge, even if it is not necessarily pronounced. that’s theHealth authorities who decide on incarceration “must inform the prosecution and an investigating judge that that case has taken place” and validation will take place automatically if the judge does not rule in the opposite direction.
As for the scenario in which the confinement is not determined with certainty that the person has a serious infectious disease, but out of “well-founded fear” that it will be (as defended by the PS proposal), the constitutionalist says that this situation must very well determined: “It is necessary to have very safe criteria”.
Bacelar Gouveia also emphasizes that this measure does not apply to general “preventive” confinement, such as those that took place during the pandemic: “If we are talking about a measure for millions of people, a state of emergency must be declared”.
Can the Constitution contain unconstitutional norms?
And what if PS and PSD agree on a wording that raises constitutional doubts, bearing in mind that there is no presidential counterweight in these cases, as the President of the Republic is obliged to make constitutional amendments? In other words, can a constitutional amendment contain unconstitutional norms?
“Theoretically it’s possible,” replies Tiago Duarte, but “in practice it’s hard to make it happen.” And that will not be the case, defends the constitutionalist: “What seems to me to be necessary is to clarify that the right to liberty can be curtailed as long as it safeguards other constitutionally protected rights. And as long as there is no violation of the principle of proportionality”.
Invoking paragraph 2 of Article 18 of the Constitution, which provides that the law “may limit rights, freedoms and guarantees only in cases expressly provided for in the Constitution, and that the limitations must be limited to what is necessary to to safeguard other rights or constitutionally protected interests”, Tiago Duarte argues that “this is not a norm that goes against what the Constitution stipulates”.
Nevertheless, the constitutionalist argues that in a scenario where doubt remains, nothing prevents entities requiring sequential inspection of the constitutionality of laws (e.g., the Office of the Ombudsman, the Office of the Attorney General, or one-tenth of the deputies) from can also do with regard to constitutional norms.
In Article 288, the Constitution itself sets “material limits” to revision, including the rights, freedoms and guarantees of citizens. Can a constitutional amendment thus reduce rights that were already enshrined?
Jorge Bacelar Gouveia answers yes. The constitution should not “be looked at from right to right, there should be a global assessment of all rights”, he argues, defending that the aim is “to inaugurate a new balance constitutionally”. “It’s not about taking someone’s rights away, it’s about creating a new balance.”
Source: DN
