TC Vice President says decision was based on personal convictions
The vice-president of the Constitutional Court (TC) criticized, this Friday, the declaration of unconstitutionality of the law on foreigners, considering that the measures of the decree are “perfectly reasonable”, and suggested that the decision was based on personal convictions.
In a joint statement of vote attached to the TC ruling that declared five provisions of the law on foreigners unconstitutional, the vice-president of the court, Gonçalo Almeida Ribeiro, and judge José António Teles Pereira said they disagreed with that decision.
For the two judges, although some of the rules contained in the decree “are controversial and debatable”, they are “perfectly reasonable and legitimate”, constituting “a normal expression of the democratic arbitration of political dissent”.
“Legislation in a constitutional democracy should not be the product of a transaction between the political preferences of the parliamentary majority and the majority of the members of the constitutional jurisdiction, but an exercise of programmatic freedom limited by respect for the fundamental rights and structuring principles of a republic of free and equal people,” they argue.
Gonçalo Almeida Ribeiro and José António Teles Pereira consider that, “for a constitutional judgment informed by such abstract and elastic values to prove an example of legal reason, rather than an ideological choice, it must satisfy a demanding burden of justification”, considering that this was not the case in the arguments of the ruling released today.
The two judges recognize that the legislator's choices regarding the rights of foreigners must "deserve strict scrutiny or intensified control by the constitutional judge."
"However, intense judicial scrutiny cannot be a pretext for judges to transfer to the constitutional plane the convictions they legitimately hold as citizens — violating democratic equality — but rather constituting an increased duty on them to familiarize themselves with the relevant facts, examine the applicable texts, consult authorized doctrine and articulate consistent, careful, considered and persuasive arguments," they state.
Gonçalo Almeida Ribeiro and José António Teles Pereira acknowledge that this is not "truly feasible" in this case, since the President of the Republic requested that the TC issue a ruling within 15 days, but they emphasize that, given the urgency of this request, "the best thing that could be done, with a sense of institutional responsibility, would be to seek support from other jurisdictions," such as the European Court of Human Rights or the Court of Justice of the European Union.
“Instead, a ruling is issued in which unprecedented constitutional demands are made and the outline of a set of specifications is drawn up,” they criticize.
Like Gonçalo Almeida Ribeiro and José António Teles Pereira, Judge Maria Benedita Urbano also disagreed with the majority decision regarding the declaration of unconstitutionality of the five norms.
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In a statement of vote, the judge considers that the rejection of the diploma "has the consequence of maintaining an open borders policy" and the decision "shows itself to be oblivious to (or does not take due consideration of)" the "current socioeconomic reality of the country, with vital sectors, such as health, housing and education, at risk of collapse."
"All you need to do is live in Portugal and pay attention, and more than that, feel the reality that surrounds us, to be sure that the catastrophic situation we are currently witnessing in our country does not fall into the category of 'fake news,'" he points out.
The only other judge who disagreed with the TC's decision to declare the five norms unconstitutional was João Carlos Loureiro, who, in a statement of vote, argued that, "in a framework of separation of powers, what each constitutional judge thinks about the merits of the solutions resulting from political-legislative choices is irrelevant."
It should “only be guided by a legal-constitutional assessment, in a framework marked by relevant international normativity, in which international and supranational references are important”, he states.
However, João Carlos Loureiro acknowledges that the decision was taken “under particularly difficult circumstances”, alluding to the fact that the President of the Republic asked the Constitutional Court to issue a ruling within fifteen days.
observador
