The Constitutional Court (TC) arrives this Thursday at the main commemorative event of its 40th anniversary, a major international conference that will take place at the Lisbon Academy of Sciences, with its president, João Pedro Caupers, just four days away from seeing it end of his mandate. Caupers is about to become the third of 13 judges with an extended term. The other two are Vice President Pedro Machete (tenure extended from October 2021) and Councilor Lino Ribeiro (June 2022). And all three have something in common.
Caupers, Machete and Ribeiro fill the quota of so-called co-opted judges. In other words, they were chosen to join the TC by the remaining ten judges, who were elected to the Assembly of the Republic (necessarily with a two-thirds majority, i.e. an agreement between the PS and the PSD). The situation has weakened the Court’s image, all the more because, as the three councilors are co-opted, it is solely up to the remaining ten to solve the problem.
So the solution of the problem does not depend on the sometimes difficult ability of the two major parties to mutually agree on choices. It is solely the court’s problem with itself. The blockade came about when in May 2022 the judges failed to select Pedro Machete’s replacement for university professor António Almeida Costa, a controversial university professor for reasons he had given to anti-abortion positions in the past. [ver retificação no fim da notícia].
A profound connoisseur of method of the TC tells DN that regardless of whether the judges can resolve the issue on their own, this deadlock reflects the fact that the PS and the PSD have stopped talking about the Constitutional Court headed by Pedro Passos Coelho – with Rui Rio updated same line. “There is no party cadres” and in this case this “cadres” is especially necessary because it is not just about replacing three councillors; it is also about choosing the next president of the court and the next vice president. It can be judges who come from outside and suddenly “land” in these positions, or the choice is made from those who are already part of the court. The first solution usually presents complications: Costa Andrade, who became president of the Constitutional Court without ever being a judge there, was only elected by his peers on the 17th attempt! Rui Pereira was rejected internally as Vice President – and immediately left the TC.
Make time for reform
However, time passes, the extended-term judges are not replaced – and the idea was consolidated that they would finally wait until they had been in office for ten years (which Machete has already done) to be able to request retirement under the terms of the Statute of the Magistrates (pension equal to the last salary).
Tomorrow, at the TC’s two-day conference entitled “Constitutionalism of the 21st Century”, the President of the Republic will speak at the opening ceremony. 40 years ago, it was the same Marcelo Rebelo de Sousa, as Minister of Parliamentary Affairs, who defended in Parliament the government’s proposal for a law establishing the Constitutional Court, a regulatory step of a decision already resulting from the constitutional revision of 1982.
In July of that year, the bill on the organisation, operation and working methods of the Court was submitted to Parliament. The following October, it was approved in a final global vote by an overwhelming majority: PSD, PS, CDS, PPM, ASDI, UEDS. The MDP/CDE abstained; and the PCP would be alone with the UDP voting against. Communists were additionally the main “target to be shot” by the Minister of Parliamentary Affairs in the general debate. Much applauded by his party’s bench, Marcelo is reported to criticize “the position of those who announced the rejection of the essence of the proposed law as a whole, in their firm willingness to maintain the same attitude in the final global vote”. And he would denounce the “strange phenomenon” which “consists of the dual position of political parties that here and now accept the rules of the game of pluralistic democracy and identify easily and convincingly with dictatorships that have emerged in other parts of the world.” experience the world.” As for the TC Act itself, I would consider “maintaining the idea of keeping positive the requirement for the listing of reasons, or at least the indication of the rules in question, in the case of the preventive inspection required by the president has been raised from the Republic” – something that has already been accused of failing to do, now that he is the tenant of the Palace of Belém.
Since several dates could be chosen to celebrate the 40th anniversary, it was decided internally at the TC that the valid date is April 6, 1983: it was the first meeting of the first full cast of 13 judges. So they were all men. In 2013/2013 there were six women – the strongest female representation; today there are four.
Knowing whether tomorrow – or not – Marcelo will think aloud about the deadlocks currently facing the Court is something in the realm of pure speculation. Voices are already rising against the situation of councillors, even considering that this situation weakens the legitimacy of the decisions of the Constitutional Court.
Some of the most important decisions of the Ratton Palace judges
Abortion
This was one of the most divisive issues within the TC. In 1984, the President of the Republic, Ramalho Eanes, called for inspection of a parliamentary decree establishing the “exclusion of illegitimacy in some cases of voluntary termination of pregnancy”. For example, if there are “serious indications that the pregnancy is the result of rape of the woman” or if there are “certain reasons to foresee that the unborn child will incurably suffer from a serious illness or malformation”. The Court declared the law to be in accordance with the Constitution.
troika
Somewhat unexpectedly, during the Passos Coelho government (2011-2014), the TC proved to be the main “blocking force” against measures envisaged in the troika’s program of cuts in entitlements and wage cuts. Urged to intervene at the request of deputies, the court rejected, for example, the suspension of holiday and Christmas allowances for civil servants and pensioners with an income above 600 euros. He did the same with cuts in the civil service, survivors’ pensions and unemployment and sickness benefits, but the decision was not retroactive.
Metadata
In April last year, the TC caused a mega-complication in court by rejecting a law requiring traffic data and the location of communications to be retained for a period of one year, with a view to possible use in criminal investigations. The decision questioned sentences based precisely on that retention of traffic data, namely the geolocation of the defendants.
Euthanasia
Twice already, and both in response to inspection requests from the President of the Republic, the TC has rejected the euthanasia law. The reason is always the same: the court denies a degree that is not subjective in regulating the conditions necessary for someone to qualify for assisted suicide.
Corrigendum at 1:35 p.m. on February 1, 2023: The President of the Constitutional Court, João Pedro Caupers, a co-opted judge (ie: not elected by the AR), did not propose António Almeida Costa to replace Pedro Machete, and did not he participated in the co-option process that took place in May 2022. The choice and vote were the sole responsibility of the group of judges elected by parliament. We apologize for the error to the target audience and readers.
Source: DN
