The majority of seven judges against six declaring the unconstitutionality of the decree decriminalizing medical assistance in the event of death was formed with four judges elected by parliament and appointed by the PSD, to which were added the three names chosen by co- presidents of the Constitutional Court were elected. option of peers. On the other side were five judges, also elected by the deputies, but nominated by the PS, to which was added a sixth name, nominated by the Social Democrats. It should be remembered that the TC declared the unconstitutionality of a standard that, by defining “physical, psychological and spiritual suffering” as a condition of access to medically assisted death, leaves an “unacceptable vagueness” about whether these requirements are cumulative or alternative.
If the tangential victory – which turned out to be determined by the co-opted names – shows the divisions between the TC judges, the explanations of vote expose the gulf that separates them. On the one hand, an argument in favor of unconstitutionality is criticized that “is not plausible enough”, on the other hand, other unconstitutionality is pointed to the decree and there is even talk of an “early sliding slope” of the legal framework.
One of the texts even talks about one “incomprehensible disloyalty between sovereign bodies”. In a harsh joint statement of vote, Mariana Canotilho, António Ascensão Ramos, Assunção Raimundo and José Eduardo Figueiredo Dias (judges who voted against the declaration of unconstitutionality, all nominated by the PS) refer that the “reason why the decree failed the test of constitutional conformity was a single letter” – the “e” of the expression “physical, psychological and spiritual suffering”. For these judges-advisers, the “exercise of interpretive filigree leading to the decision” results in unconstitutionality “on a standard- of scrutiny that cannot be carried out without running the risk of creating space for new and different criticisms of the law, in an endless spiral of possible objections”. The signatories of this explanation of vote underline that “there is sometimes a thin line between commendable legal rigor and the imposition of impossible conditions”. When it obeys the first, the Constitutional Court “fully exercises its functions as guardian of the Constitution”, but “when it crosses that limit”, the four judges write, “it invades the sphere of jurisdiction” and the “expression of the general will of the democratic legislator, not respecting the principle of the separation of powers” – hence “disloyalty”. In another explanation of vote, Joana Fernandes Costa rejects doubts about the interpretation of the phrase that led to the unconstitutionality – “Looking at the grammatical element, there seems to be no doubt that the conjunction “and” belongs to the category of additive coordinating conjunctionswhich are defined as uniting two terms or phrases, creating a relationship of addition or sum between them”.
Euthanasia vs assisted suicide
In fact, the different perspectives of the TC judges led to the rejection of a first memorandum written by José António Teles Pereira and the subsequent change of the rapporteur of the judgment. In his explanation of vote, this judge reconfirms himself “reported” on “the claim that euthanasia is compatible with the constitutional protection of human life”, also defend a broader statement of unconstitutionality (a position he expressed in the original note), extending to the fact that the decree leaves it to the patient to decide whether to choose euthanasia or assisted suicide. José António Teles Pereira is not alone in supporting this position, but there was another issue that divided the judges on this particular issue – the fact that the president did not ask for an assessment of the constitutionality of this particular issue. The chairman of the TC, João Caupers, states in his explanation of vote that the “euthanasia cannot be a free alternative: its use must depend on the impossibility of assisted suicide”. “Only in this way can the principle of proportionality be respected, in terms of necessity”, he writes, but then emphasizes that “the standards in relation to which this question could be raised were not included in the subject of the inspection request of the President of the republic, and therefore cannot be valued” – the position prevailing among the majority of the advisory judges. Among those who voted for unconstitutionality, there are also those who are already pointing to “some kind of early slippery slope” in the legal framework, supporting Marcelo Rebelo de Sousa’s argument that there is an increase in situations where it will be possible to resort to euthanasia.
Referendum. Decision “being taken”
After Luís Montenegro announced that the PSD will resubmit the proposal for a referendum on euthanasia in September, Marcelo Rebelo de Sousa came this Tuesday to remove the scenario of a plebiscite: “The Assembly of the Republic has already rejected the referendum once and disapproved it the other time. It is a decision that has already been made, it has been madeAs for the judgment of the TC, the President of the Republic claimed that the Constitutional Court has sought to “facilitate the task of the Assembly of the Republic” – “Whether in the first judgment or in this one, it declares somehow the path to be followed”.
Source: DN
