Constitutionalist Jorge Reis Novais criticized this as the Constitutional Court’s “misinterpretation” of the issue of animal abuse, while his colleague Teresa Violante points to the legislature’s “inertia” and “lack of attention”.
In statements to Lusa about the TC’s decisions to declare unconstitutional standards criminalizing the mistreatment of animals, Jorge Reis Novais believes that on this basis “is an interpretation that the Constitutional Court (TC) makes of the Constitution, which misinterpretation of the Constitution.” interpretation”.
Jorge Reis Novais pointed out that laws protecting animal welfare and limiting other people’s rights “have been around for decades,” one of them – more than 100 years old – is the law banning and criminalizing bulls of death.
On this law, the constitutionalist noted that over time it “has never been considered unconstitutional”, including by the TC.
“During this time TC never raised this issue and now remembered. It is incomprehensible”he stressed, adding that in 2021 the TC recalled “exposing a false theory” of the interpretation of the constitution that would not allow limitation of rights nor criminalize cruelty to animals.
For Jorge Reis Novais, this is a “thoroughly erroneous” interpretation, which the TC should reverse and, if it does not come back, will have to be resolved in some other way, for example by including “a mention of animal welfare in the constitution” “, or amending some provisions of the law.
When asked how it will be possible to circumvent the obstacles of the TC, the constitutionalist says that this can be done in several ways. One, he said, would be for the TC to change its case law.
“It is possible to do this because this was done by sections of the TC and not by the TC as a whole. One solution would be for the TC judges to change these kinds of decisions”he explained.
Another solution – he said – would be to amend the law in terms of clarifying some concepts of the animal welfare law, as some TC judges find the law unconstitutional “not because of the fundamental issue, but because of the lack determination of these aspects” or legal concepts.
A third solution, according to Jorge Reis Novais, would be to include a mention in the text of the constitution for animal welfare in the constitutional revision. According to him, this would be “a fallback solution”.
In turn, the constitutionalist Teresa Violante admitted that a viable way to solve the problem is to amend the constitution, in the context of a constitutional review process.
Teresa Violante emphasized that what the TC’s decisions indicate is that “some shortcomings of the legislative technique” discovered in the current law are no longer remedyable, as they believe that the current law “suffered from determinability problems, namely in terms of the concept of animal companionship and the concept of suffering and mistreatment, which urgently require the intervention of the legislature to remedy these problems”.
The constitutionalist argues that in this way “a new legislative process is needed, no longer a process of constitutional revision, but an ordinary process in the Assembly of the Republic (AR) that can solve these problems”.
On the other hand, he said, there is no need for the legislature to wait for the outcome of the current process in the TC as “it could start tomorrow” this new legislative process tends to solve the problems that have already been by the TC and that “had been previously identified by the penal doctrine”
For the constitutionalist, an “observant and concerned legislator (…) would have already begun a process of law amendment, would have already consulted some of the authors who identified these problems, would have already had the opportunity, but above all, the duty to diagnose how it is that the law worked in practice in the courts and what problems it ultimately encountered”.
For Teresa Violante, this point has been reached “mainly through inertia” and “lack of attention” on the part of the AR, who took the opportunity to say that if the law on animal protection is so important to the various political parties , then the PSD is not expected to create obstacles in the field of constitutional reform.
Last week, the Public Prosecution Service asked the TC for the unconstitutionality, with general mandatory force, of the standard of the law for the protection of animals that makes punishable by fine or imprisonment anyone who, without legitimate cause, kills or mistreats pets. This after three decisions by the TC in that sense.
Article 387 of the Penal Code characterizes the crime of mistreatment of companion animals as the conduct of anyone who, for no legitimate reason, inflicts pain, suffering or any other physical ill-treatment on a companion animal (e.g. dogs and cats), a crime punishable by imprisonment of up to up to one year or a fine of up to 120 days.
Source: DN
