The Constitutional Court (TC) has again declared the unconstitutionality of some of the rules of the diploma that decriminalize medically assisted death. The decision just announced, resulting from a request for a preventive inspection by the President of the Republic, was approved by a majority of seven judges against six. And, as already happened in the first version of the diploma, the declaration of unconstitutionality is based on the lack of clarity and condensation of some concepts used in the text.
João Caupers, president of the TC, recalled that the TC has already ruled on the diploma and said that the court expected that the new version would meet the problems identified by the advisory judges at the time. But “the legislator, having made efforts to condense and clarify some concepts used in the previously inspected version, chose to go further and change essential aspects” the previous text. In doing so, added João Caupers, “the Assembly of the Republic was limited to exercising the powers conferred on it by the Constitution”, but “such an option had consequences”.
The judge-adviser pointed to the concept of suffering, typified in the diploma “by the enumeration of three characteristics, physical, psychological and spiritual, linked by the conjunction” and “”, asserting that “two conflicting interpretations of this precept are plausible and be sustainable”. With this the legislator “has expressed the doubt, which it is for him to clarify, as to whether the requirement is cumulative or alternative”, underlined João Caupers.
Faced with this new declaration of unconstitutionality, Marcelo Rebelo de Sousa will return the text to the Assembly of the Republic without proclamation.
It was the second time that the advisory judges expressed their opinion on the text that decriminalizes medically assisted death. In February 2021, when the diploma first arrived in Belém, Marcelo Rebelo de Sousa asked for an appreciation of the constitutionality of several points of the article, with the Constitutional Court ruling by majority that the diploma did not comply with the Constitution.
Medically assisted death then returned to the Assembly of the Republic and, following amendments to the text to purge unconstitutionality, the diploma was again sent for promulgation by the President of the Republic in November 2021. A second version also failed the screening from Belém, with Marcelo Rebelo de Sousa appealing to the lack of precision of the concepts used in the text to politically veto the diploma.
A third version of the diploma reached the president of the republic earlier this year. Marcelo chose to re-send the diploma to the TC as the text maintains “conceptual vagueness” in the legal concepts that “certainty and legal certainty are essential in the central realm of rights, freedoms and guarantees”.
Updated
Source: DN
