Metadata ‘bombshell’: Constitutional judges play hardball

Appeal lodged by Attorney General “lacks legitimacy”

PM António Costa has had no choice but to convene the Superior Council of Internal Security this morning, in order to “analyse measures to adopt, and practical consequences” of the bombshell metadata ruling by Constitutional Court judges (see update below).

Attorney General Lucília Gago did her best to quash the ruling last week, lodging an appeal on the grounds that there was “a contradiction between the foundations and the principle of unconstitutionality”.

Judges gave her attempt short shrift, announcing last Friday that it lacked “procedural and constitutional legitimacy”.

In effect, a week was lost and now we are where we are: back at ‘the bombshell’ which could see thousands of cases past and present thrown out due to their being based on evidence using metadata – the ‘call history’ and ‘localisation pings’ of suspects in all kinds of crimes.

The big problem with this decision by the Constitutional Court is that to ensure it is circumnavigated may end up involving what the prime minister has called a “surgical Constitutional review’ – and this doesn’t really exist. Once the Constitution is up for any kind of review, a process is opened, explain constitutionalists, and then any MP can raise any proposal to change any (other) part of the document, and things can get bogged down in all kinds of issues.

President Marcelo has already said he ‘fears’ a surgical review, for this very reason. So, it is up to today’s meeting to try and come up with a clever solution.

Former MEP Ana Gomes has explained the lunacy of the Constitutional position very clearly: telecoms operators are still allowed to store client metadata for as long as they want, for commercial purposes, but ‘according to the Constitution’ law enforcement authorities cannot be given access to it to solve heinous crimes

Ms Gomes has described judges’ position as “Stone Age fundamentalism”.

Media sources have already stressed that the Constitutional Court ruling has led to convicted murderers instructing lawyers to lodge appeals, on the basis that their defence was only truly scuppered by the evidence gleaned from metadata.

UPDATE: PM António Costa has announced, following the meeting, that the government will advance, hopefully in June, with a draft law to alter the law governing metadata “bearing in mind the recent unconstitutionality decreed by the Constitutional Court”. In other words, a ‘surgical Constitutional review’ has been ruled out – and the PM stresses that he sees no challenges possible in cases that have already ‘passed judgement’.