First phase of proposed changes to Portuguese Constitution “almost concluded”

Changes include “isolation of contagious people without recourse to State of Emergency”

The argument that the Portuguese Constitution should not be altered during a political crisis has seemingly fallen by the wayside. Thus, as the country is still locked in political strife, Lusa has reported that the first phase of the work of the possible constitutional revision commission will end within the next few days – albeit the process “is still far from over, and has an uncertain outcome, depending on joint approval by the PS and PSD”.

For people concerned with human rights and freedoms however, there is some certainty.

Both parties have already agreed in principle on two key changes: the isolation of seriously ill people and those deemed ‘contagious’ without recourse to a State of Emergency and access by the intelligence services to communications metadata.

Many would argue that the second change makes absolute sense, while the first is potentially open to almost dystopian abuse.

According to Lusa, the first reading of the almost 400 amendments proposed by the eight parliamentary parties will involve article-by-article voting to take place after the summer.

But nothing is certain, for the simple reason that any constitutional revision requires approval by two-thirds of the house, which in the current parliamentary composition implies a favourable vote by the PS and PSD (both of them locked in political rivalry right now).

PSD leader Luís Montenegro has already stressed that if the process is ‘only to change the fundamental law as the PS wants’, his party won’t play ball – and the revision will fall by the wayside. “The PSD will not give constitutional freebies to the PS”, he said in Madeira recently.

Nonetheless, both President Marcelo and the speaker of parliament, Augusto Santos Silva, have stressed the urgency of “strengthening how the country can face new health emergencies such as Covid-19”. And with the World Health Organisation attempting to pass its own treaty right now, ostensibly overriding the powers of countries in this regard, there is a lot of pressure on the health aspect of people’s freedoms.

Thus, the following is a summary, in key points provided by Lusa, of the main amendments on which PS and PSD have either reached a consensus or are undecided:

 *** Health emergency ***

The PS and PSD have been the only two parties to agree to include in the Constitution the deprivation of liberty for seriously ill and ‘contagious’ patients, even without a State of Emergency, with the remaining parties considering that the current legal framework should be maintained.

Both parties opted for adding in the article regulating the right to liberty and security (27th) a new exception to the current rules that allow the deprivation of liberty, although with different wording, and are willing, says Lusa,  to reach a common text.

Socialists suggest deprivation of liberty may occur for “separation from a person with a serious contagious disease or in respect of whom there is a well-founded fear of the spread of serious disease or infection, determined by the health authority, by reasoned decision, for the time strictly necessary, in the event of a public health emergency, with a guarantee of urgent recourse to the judicial authority”.

The PSD used a different wording: “confinement or internment for reasons of public health of a person with a serious infectious disease, for as long as strictly necessary, decreed or confirmed by a competent judicial authority“.

In the discussion, the PSD stressed that its proposal requires the existence of a verified disease – rather than just a “well-founded fear” – and, above all, “the seal of a judge“, not just the decision of an administrative authority.

MPs also said that it would be difficult to achieve this quickly and that they agreed with the PSD’s text, which allows for authorisation ‘a posteriori’ report on the proposal for a directive.

 *** Metadata ***

MPs agreed that intelligence services should be able to access background data on communications, stressing that this has nothing to do with recent problems regarding the unconstitutionality of the law regulating the use of metadata in criminal investigations.

The coordinators of the two parties, Pedro Delgado Alves (PS) and André Coelho Lima (PSD), stressed that the current constitutional review would only decide whether intelligence services should or should not have access to this data (which may include traffic or equipment location information, but not the content of communications).

Regarding the inviolability of home and correspondence, PS and PSD have different wordings but have expressed their willingness to converge, and of the remaining parties, only CHEGA has expressed its willingness to support the change.

The PSD opted for a more general wording, determining that “the law may authorise information service access to context data resulting from telecommunications, subject to judicial decision and control”.

The PS, while maintaining the prohibition of “all interference by public authorities in correspondence, telecommunications and other means of communication, except in cases provided for by law in matters of criminal procedure”, introduces an exception to this general principle: “Access, upon judicial authorisation, by intelligence services to basic, traffic and equipment location data, as well as their conservation, for the purpose of producing information necessary to safeguard national defence, the internal security of prevention of acts of sabotage, espionage, terrorism, the proliferation of weapons of mass destruction and highly organised crime, under the terms to be defined by law.”

 *** Animal welfare ***

MPs agreed to enshrine the promotion of animal welfare in the Constitution to try to overcome several declarations of unconstitutionality of the animal abuse law.

In January, the Public Prosecutor at the Constitutional Court requested the declaration of unconstitutionality of the rule that criminalizes with fine or imprisonment anyone who, without legitimate reason, kills or mistreats pets, a request that came after three decisions of the Constitutional Court in that direction.

 *** Fundamental rights and language ***

The majority of parties want to extend the list of fundamental tasks of the State in the Constitution to include principles such as the eradication of poverty, intergenerational justice or the protection of Nature and the environment.

This was the article that raised the most amendments in the current constitutional revision, with the PS defending the introduction of new concepts, such as the promotion of ties between communities abroad or the eradication of poverty, along with the constitutionalisation of the principle of territorial cohesion.

The PSD wants to place among these primary tasks the needs of low-density territories and justice between generations.

The PSD and PSD were also open to the possibility of eliminating the “political” criterion of the concept of a refugee from the Constitution, a proposal from the Liberal Initiative for the fundamental text to simply state that “the law shall define the status of the refugee”.

In the first phase of discussion, there was consensus to replace in the Constitution the expression “rights of man” with “human rights” and “citizens with disabilities” with “persons with disabilities”, as well as openness to changing the expression “race” with “ethnicity” or “ethno-racial belonging”.

Also on the chapter on rights, freedoms and guarantees, the parties agreed to enshrine the right to digital forgetfulness in the Constitution, agreeing to find a common text on this point.

*** Social rights and duties ****

The PS and PSD agreed to enshrine a new article on the right to food in the Constitution, although the Social Democrats warned of the possible difficulty of implementing the proposals put forward by the Socialists and the Greens.

In the area of housing, there was support for the BE proposal to include in the Constitution that everyone has the right to housing “with physical accessibility”, as well as for the PS’s proposal to enshrine “special protection measures” in this chapter for victims of domestic violence.

In the article on the family, there was general consensus on the PS proposal to include in the Constitution that it is the State’s responsibility to “establish integrated policies and adopt measures to prevent and combat domestic and gender violence”, as well as a reference to the reconciliation of professional activity and family life, already provided for, “with the civic dimension”.

In the final vote on the report, the Socialists proposed that all consumers have the right to “services of general economic interest in conditions of universality, equality and equity”, including “the supply of water, sanitation, energy, urban public transport, telecommunications, postal services and others laid down by law“.

 *** Health and education ***

In the area of health, the parties agreed to include palliative and reproductive care in the duties of the State with regard to universal access care.

In the area of education, there was an agreement to extend the concept of “universal, compulsory and free education” in the Constitution to secondary school, pre-school and even crèches, until now only provided for under basic law. 

*** Political system ***

Despite the initial position of the PS against any changes in institutional matters, throughout the meetings, the Socialists showed openness to some punctual changes in this chapter, including the PSD’s proposal to ‘shorten’ the fourth and last legislative session of each legislature so that national elections can be held before the summer, as the Socialists had presented a similar proposal in the past.

The PS also showed its willingness to welcome proposals – from the PSD and CHEGA – clarifying that caretaker governments are prevented from making definitive appointments, as well as proposals from the PSD and IL to eliminate from the Constitution the need for a ministerial referendum after the promulgation of laws by the President of the Republic, widely considered to be “an obsolete institute”.

The PS also admitted “a reflection” on proposals from the PSD and CHEGA that aim to introduce into the Constitution the possibility of time limits to the terms of office of all political office holders, including Members of Parliament (currently only provided for executive posts), and also openness to perfect in the Constitution the monitoring of European matters by the Assembly of the Republic.

In the same vein, Socialists welcomed the PSD’s proposal to bring forward Parliament’s consideration of the State General Account, setting a deadline of July 31 of the year following the Budget to which it refers (instead of the current date of 31 December) as “a valuable contribution”, and promised attention.

This is currently the 12th process of revision of the Constitution of the Portuguese Republic (only seven have been successfully concluded).

Since it took office on 4 January this year, the ad hoc commission has held almost 40 meetings in which the parties presented their ideas and made an initial assessment of the proposals of the others, article by article.

Even before the summer, hearings of some entities requested by the parties will begin,  and in September, parties will be able to present proposals for amendments to their ideas, and/ or to texts from other benches, but only on the articles that were the subject of proposals in the first phase.

President of the commission, social democrat José Silvano, expects  the work will not extend beyond 2023.

If successfully concluded, it will be the eighth revision of the Constitution, almost 20 years after the previous change (2005) and more than ten after the last major attempt to change it (2010/2011), which failed due to the dissolution of parliament.

Source material: LUSA