There are only 14 (out of a total of 296) articles of the Basic Law for which there are proposals from both the Socialists and the Social Democrats. This is an exercise that makes it possible to anticipate with some certainty the end of the ongoing 12th revision of the Constitution. Which articles are ultimately changed; and in what sense it will happen.
The Constitution of the Republic has 296 articles, but the revision proposed by the PS ends up in the 74th. As of this article, socialists are not proposing any changes. They just want to change 20 articles and add one (what would become Article 64-A).
The PSD is more extensive: she wants to change 71 articles, withdraw five and add four. The project of the Social Democrats, one of the eight presented, is actually the most extensive, ex aequo with that of the PCP. Between amendments, repeals and new articles, the PSD and PCP each propose 80 amendments to the constitution. However, the PS’s lineup, just for a minimalist review, indicates that most of these ideas will fall by the wayside.
Replace “human rights” with “human rights”. This should be the first amendment to be agreed between the two main parties, in the case of Article 7(1) (“International Relations”). But the PSD also wants to change paragraph 2 and although the PS does not propose that, everything points to the possibility of an agreement. The article says that “Portugal recommends […] the establishment of an international order capable of guaranteeing peace and justice in relations between peoples”. On the proposal of the PSD, it should be stated that Portugal “recommends” this and also “an effective international system for the protection of the environment” .
The next article in which both parties propose amendments is in the 9th. A fundamental article for the definition of ideological contradictions, as it defines the “fundamental tasks of the state” – and therefore the proposals seem to be incompatible. Precisely for this reason, more difficulties in understanding are expected.
For example, the PSD argues that the “fundamental task of the state” is to “promote” genuine equality among the Portuguese, as well as the realization of economic, social, cultural and environmental rights, but this “by way of providing the best guarantees”. This means that for the PSD the right to health, for example, does not necessarily have to be guaranteed by the state. It could be through the private system, if that is “the mode of delivery that best ensures it”. Of course the PS is not on the same page.
But if the article on the “fundamental tasks of the state” does not provide substantive agreements, the opposite should happen with the 27th, which defines the “right to liberty and security”. Here lies one of the main reasons for this constitutional revision: to adapt the constitution to the difficulties created during the pandemic by new problems for which no legal framework existed. For example, the mandatory detention of people infected with infectious diseases.
Currently, in case of illness, only those who are “carriers of a mental disorder” can be arrested, and this only after “confirmed by the competent judicial authority”. The PS proposes to extend this principle to “a person with a serious contagious disease or who has a well-founded fear of spreading a serious disease or infection”, whereby a decision “determined by the health authority” is sufficient for this in the first instance “guarantee of urgent appeal to the court”. The PSD, on the other hand, wants “the confinement or hospitalization for public health reasons of a person with a serious infectious disease, for the time strictly necessary, declared or confirmed by the competent judicial authority”.
However, given that there is a relevant difference between the two proposals – the time it takes for the judicial authority to intervene – there is a high probability of reaching an agreement.
The next articles in which the PS and PSD have proposals are the 34th and 35th, the first on “Inviolability of Home and Correspondence” and the second on “Use of Information Technology”. Essentially what is at stake here in the PS proposal is the possibility for the information services (also known as “secret”) to access, “after judicial authorization”, the so-called “metadata” of communications (that is say, “base, traffic and equipment location data” when it proves necessary to “protect national defense, homeland security and prevent sabotage, espionage, terrorism, proliferation of weapons of mass destruction and highly organized crime”). The PSD goes in the same direction, but with a more general article: “The law may authorize access by the information system of the Republic to context data originating from telecommunications, subject to judicial decisions and control.”
preamble does not change
For the rest, PS and PSD want to change article 64 (“Health”), but no agreement is foreseen. Social Democrats speak of “complementarity between public, private and social services” in health care as a way for the state to “ensure the right to health protection”, something socialists interpret as a privatization of the SNS.
This is one of the articles with the most proposed changes (only Livre doesn’t want to do anything about it). The others receiving general attention are 66th (“Environment and Quality of Life”), 149th (“Constituencies”), 9th (“Fundamental Duties of the State”), 35th (“Use of Information Technology”), 59th (“Fundamental of Workers” ), 65th (“Housing and Urban Planning”), 74th (“Education”), 7th (“International Relations”), 33rd (“Eviction, Extradition and Right to Asylum”) and 49th (“Right to Suffrage”)”).
The work of the review committee has already begun. Last Friday, proposals from Chega and IL were discussed to change the preamble of the Fundamental Law. The text says that “on April 25, 1974, the Armed Forces Movement, crowning the long-standing resistance of the Portuguese people and interpreting their deep feelings, overthrew the fascist regime”. For example, Chega wanted to replace the phrase “fascist regime” with “current regime”. The IL, on the other hand, planned to add another to this sentence: “On November 25, 1975, Portugal consolidated itself as a fully democratic regime and prevented the establishment of a communist regime.” Most other parties said no. The foreword remains as it is.
Source: DN
