Constitutional Court, what do I need you for?

In recent days, after the content of the Constitutional Court's ruling was made public, which assessed the request for preventive supervision made by the President of the Republic, regarding decree no. 6/XVII of the Assembly of the Republic, which introduces several changes to the legal regime for the entry, stay, exit and removal of foreigners from the national territory, and regarding the family reunification regime (Law no. 23/2007, of July 4), there was an intense debate, crossing the various political parties, the media and public opinion in general.

Some believed that the majority position served the interests of the left and that the dissenting votes supported the positions of the right. Some saw the decision as a victory for the Constitution, Fundamental Rights, and Humanism, considering the minority position and the respective judges who endorsed it insensitive to such principles. Some considered that the court overstepped its interpretative point of view and acted as a blocking force to the parliamentary majority that emerged from the legislative elections, seeking to embarrass the government. Similarly, due to the lack of unanimity in the ruling, there were many who suggested changes to the composition of the Constitutional Court, reviving discussions about its possible dissolution, its reconfiguration as a Section of the Supreme Court of Justice, and even the need for amendments to the Constitution itself.

While it is not legitimate for me to delve into the merits of the matter, on which, due to ethical and statutory imperatives, I will not comment, it nevertheless seems relevant to address the issue from the perspective of the system itself. Thus, first and foremost, it is important to remember that, in a court operating collegially, unanimity is not necessarily the rule. Indeed, the greater the number of judges involved in the decision, the greater the likelihood of dissenting votes, which are a normal, legitimate, and even healthy consequence of the decision-making process. The debate generated within the framework of legal argumentation allows for the emergence of a plurality of perspectives, confirming that a genuine debate took place, necessarily enriching the decision and fostering transparency in a system so often criticized and criticized for being hermetic and incomprehensible. Justice, from its architecture, which highlights the various categories of courts that are joined together in appeals, to the collegial composition that the law requires for the taking of certain specific decisions, only stands to gain when, faced with complex or even divisive issues, the final decision is not presented in a tabulated form or based on a single thought.

That said, it is also important to emphasize that the Constitutional Court was conceived as a true court and, as such, its operations are based on non-negotiable legal principles, such as independence and impartiality. While it is true that the Constitutional Court is often criticized for the way its judges are appointed (given that ten of the thirteen judges are appointed by the Assembly of the Republic and the rest are co-opted by the latter), the truth is that, in the exercise of their functions, they are not affiliated with political parties, do not represent specific constituencies, cannot hold any office in bodies of parties, political associations, or related foundations, nor engage in public political activities. Their most significant function is precisely to verify the unconstitutionality or illegality of laws.

The relevance of such functions is immediately undeniable because the Constitution is not a mere suggestion. It is the Fundamental Law that governs a country, defining the rights and duties of citizens and establishing the structure of the State, as well as setting limits on its action, with all other laws enacted being subordinate to it. From this perspective, the occasional circumstance of a parliamentary majority does not mean that the government supported by it does not encounter constitutional limits to its legislative action, and it is precisely the Constitutional Court that is responsible for that verification. This is not a current issue, nor is it limited to this specific ruling. Rather, it is a role assigned to a court that, at various historical moments, with different parliamentary compositions and different governments in office, has had to take a position on a wide range of issues that, at one point in time, were divisive for our society. Issues such as euthanasia, the collection and preservation of metadata, restrictions on rights arising from "COVID legislation", the rules arising from the Memorandum of Understanding signed with the "Troika", among many others, have successively placed the Constitutional Court before the complex exercise of verifying the possible incompatibility of legal norms with the constitutional text.

And this is where a sensitive point is touched upon. A stable, so-called liberal democracy rests on two fundamental pillars. On the one hand, it presupposes the existence of free elections, which elect the people's representatives and legitimize them; and, on the other, it is important to uphold the rule of law, the separation of powers, and judicial independence. These are the cornerstones and fundamental rules for a democratic existence, which means that a temporary parliamentary majority must always, and even then, act within constitutional frameworks, which are necessarily universal and binding on all citizens. And our Constitution is very clear on this point, concisely defining the Portuguese Republic as a democratic state governed by the rule of law, based on popular sovereignty, pluralism of democratic expression and political organization, respect for and guarantee of the enforcement of fundamental rights and freedoms, and the separation and interdependence of powers (Article 2).

Therefore, regardless of the healthy public and political debate, the right and duty to scrutinize judicial decisions, and each person's position regarding a specific decision of the Constitutional Court, the truth is that the Court has legally and constitutionally guaranteed legitimacy to fulfill its role at all times. The experiences seen in other countries, including in Europe, are dangerous, as the setbacks to the rule of law began precisely with deliberate attacks on the courts or their judges. In a state governed by the rule of law, the courts are not mere rubber stamps for the other branches of government. They act independently and according to criteria of legality that are public, publicized, and scrutinizable.

In this sense, it's important not to lose sight of the fact that democracy isn't built solely on suffrage, but rather on a system of checks and balances, in which no branch of government is granted absolute power. And, regardless of one's positions and even convictions, it's important to remember that respect for the rules of the game when they might be unfavorable to us is the measure of a country's democratic maturity. Since reality is evolving, whether from a social, political, legislative, or jurisprudential perspective, what's most important—for both those who feel defeated and those who feel victorious—is preserving the mechanisms so that tomorrow, in a similar or different scenario, the rule of law continues to be protected.

From this perspective, it is crucial to safeguard the credibility of the institutions that guarantee the architecture of the State we have built, as this credibility generates the trust that citizens are creditors of. And respect for institutions is in no way counterbalanced by renouncing criticism. Rather, it is important to recognize that legitimate, objective, and assertive criticism is at the opposite pole from dangerous delegitimization campaigns. In this sense, faced with a law that allows for different constitutional readings, it is worth emphasizing that, in the wake of a complex and, as such, salutarily divided decision, the polarization that propagates ideas of virtue for some and a lack of humanism for others is as negative as the suggestion of changes that undermine judicial independence itself, without which the Constitution would become a dead letter and, as such, incapable of defending the freedoms we have worked so hard to achieve.

The texts in this section reflect the authors' personal opinions. They do not represent VISÃO nor reflect its editorial position.