PS and PSD seek to deprive citizens of liberty in “public health emergencies”
Portugal’s parliament starts the 8th constitutional revision process on Wednesday, almost 20 years after the previous change, and more than ten after the last major attempt to amend it, which failed due to the dissolution of parliament.
Last year, parliament set up an ad hoc constitutional review commission to debate a single bill put forwards by right-wing CHEGA – no other parties backed it.
The 17 proposed amendments were all ‘rejected’ in what Lusa calls “a rapid process”.
Now CHEGA has triggered a revision following an initiative admitted in October, in which all other political parties submitted their own proposals.
Thus a new commission for constitutional revision begins on January 4, and from there, the process of discussing and voting on many amendments proposed by various parties and MPs.
Any changes will require the approval of a two-thirds majority, which, in the current parliamentary composition, implies the favourable votes of PS and PSD.
Says Lusa, this on its own makes it “difficult to know if this 8th constitutional revision process will be successful and how big it will be…”
Lusa compares the projects of both parties in respect of two issues that President Marcelo has described as essential: how to allow access to metadata for purposes of judicial investigation (after the Constitutional Court ‘rejected’ the law in force) and how to decree future lockdowns, with legal certainty “even without a state of emergency” in the case of a new pandemic.
This last point raises a lot of questions: indeed, only the PS and PSD have come up with proposals; none of the other parties seemingly supporting the deprivation of fundamental liberties in the scenarios foreseen (see below).
Other issues in this process of reform include the extension of universal, free and compulsory access to secondary education and the modernisation of wordings in the fundamental law (particularly in terms of gender equality).
And while the PS bills “does not touch the economic organisation, the financial and fiscal system, nor the organisation of political power or the courts”, there are “several areas” in these where the PSD “want numerous changes”, says Lusa.
Since it was approved on 2 April 1976 – with the support of all parties except the CDS – the Constitution of the Portuguese Republic (CRP) has been revised seven times. An 8th attempt, triggered in 2010 by the PSD (then led by Pedro Passos Coelho), was discussed for months but ended up not taking place due to the dissolution of parliament in March 2011.
The seventh and last constitutional revision took place in 2005 and was only a “surgical” change, with the addition of a single article to allow for a referendum on the approval of a treaty aimed at building and deepening the European Union.
Control over citizens’ freedoms in a public health emergency
This is the area of constitutional reform that has already inflamed opinions.
Lusa explains: “Only PS and PSD want to respond in the revision of the constitution to the legal problems that arose during the Covid-19 pandemic: the PSD adds to the reasons to decree a State of Siege or Emergency that of “public health emergency”, and both parties add a new exception to the relevant article “that allows depriving citizens of liberty”.
Socialists want the constitution to allow the “separation of a person who has a serious contagious disease, or in respect of whom there is a well-founded fear of the spread of serious disease or infection”, simply by being determined by the health authority but “with the guarantee of urgent recourse to the judicial authority”.
The PSD uses a different wording “but with a similar intention”, says Lusa: it will now be possible to deprive of liberty for “confinement or internment for reasons of public health of a person with a serious infectious disease“, provided that “decreed or confirmed by a competent judicial authority“.
Speaking out against the decision to even go down this road at a time when there are so many other problems, nationally and internationally, constitutionalists and lawyers have all described this moment in Portugal’s history as potentially extremely dangerous.
Luís Menezes Leitão has gone as far as likening the efforts by national politicians as trying to take Portugal to a point where there are zero freedoms.
Jorge Miranda, one of the father’s of the original 1976 Constitution, has alluded to the return of a scenario of dictatorship – and human rights lawyer Ricardo Graça told the Resident a little over a month ago that in his opinion these latest efforts by politicians constitute “a perverse autocratic exercise prepared by a dozen powerful people who want to stitch up the Constitution at the mercy of the powers of the system, without the slightest shadow of democratic mandate”.
