PS MPs concerned ‘constitutional reform’ will wipe away fundamental rights
Certain MPs fear the PM and Opposition leader are working in unison to erode, even eliminate, fundamental freedoms, says Expresso today. Image: Lusa

PS MPs concerned ‘constitutional reform’ will wipe away fundamental rights

Suspect PM and Opposition leader “are preparing to do away with court’s intervention when it comes to confinements”

This evening’s meeting of the PS Socialists’ Political Council won’t simply be discussing the various controversies affecting members of government, they will also be addressing fears that the ‘hot topic’ of Constitutional Reform is a vehicle for eroding, if not eliminating, essential rights and freedoms.

Expresso has been tackling the issue, explaining that on the coattails of the pandemic, there is consensus that the Constitution must allow “for the possibility of a government to decree situations of confinement – and prophylactic isolation – in the case of an infectious disease”. But what concerns “some Socialist MPs meeting this Thursday” is if this possibility dispenses with citizens’ rights to appeal through the courts.

Readers may recall the various writs of Habeas Corpus granted through the pandemic: incidents where citizens (rightly, ruled judges) objected to being forced into isolation. They appealed through the courts and, more often than not, won.

Around the time these incidents were being publicised, PSD leader Rui Rio made no bones about the Constitutional reform he was looking for: it would allow health authorities complete autonomy when it came to removing citizens’ rights ‘in the name of public health’.

Many, however, do not believe this is the right path. Health authorities are not ‘policing entities’ – and it would open up Pandora’s Box to start accepting them as such. 

But this is where things appear to be going.

Says Expresso: “as it has already been decided that the constitutional revision process will be opened, António Costa asked the technical commission (set up to make recommendations) to “consider again the need to introduce a constitutional rule that reinforces the legal security” of this project (a project already considered ‘fatally wounded’ earlier this year).

According to the paper, PM Costa was essentially directing the technical commission, when the government itself “does not have the power of initiative in matters of constitutional law”. And what has emerged has not thrilled “some Socialist MPs”.

They have highlighted one particular alteration “that could be in the pipeline.

“It’s about sub-paragraph 3 of article 27, which concerns exceptions foreseen in the law for the “deprivation of liberties”. Although everyone agrees that a new paragraph should be added to the law to provide for obligatory cases of prophylactic isolation, not everyone agrees with the “terms” and the way the technical commission drew up the proposal – and they fear that António Costa is preparing to adopt that wording as his own. The same fear is expressed by Miguel Prata Roque, former secretary of State for the Presidency of the Council of Ministers, in an article published in Expresso”.

Miguel Prata’s article is crystal clear: “there is a latent and contradictory desire to reduce or even eliminate” fundamental rights, “despite announcements” to the contrary.

Another case of ‘throwing sand into people’s eyes’? Very possibly: tell people you are tinkering with an old text to strengthen their rights (at a time when attentions are focused on much more apparently pressing issues, like the rising costs of living), and they may take you on your word.

But some of the proposed tinkerings strike a chill down the spines of those who are paying attention.

For example, says Expresso: in the text on ‘confinement of a mentally ill person in an appropriate therapeutic establishment, ordered or confirmed by a competent judicial authority’, the technical commission “envisages adding another item of deprivation of rights and freedoms. The subparagraph is as follows: “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 as long as strictly necessary, in the event of a public health emergency, in accordance with the law”.

“In the text explaining its decision, the technical commission explains that the wording of the paragraph was “inspired by the European Convention on Human Rights, with the word ‘detention’ being replaced by ‘separation’, which is technically more accurate and corresponds to the terminology adopted in the International Health Regulations. 

“This is one of the problems detected by some Socialists, who understand the ‘technical’ justification for the term “separation”, but legally do not believe it is the most appropriate definition.

“We need to pay attention to the exact terms in which a confinement can be decreed,” they tell Expresso.

Perhaps the biggest problem of all is that the technical commission has chosen to waive the “need for judicial authorization or confirmation”

“That, in the opinion of some Socialists heard by Expresso, is the most “serious”.

We run the risk of allowing the Constitution to allow a person to cough in a public place, and be sent into isolation“, one of them warns, stressing that the “risk” of messing with the Constitution is that the fundamental law will be in force for several years – without knowing who, or which party, will be in Government in future, or even who will be President of the Republic”.

Another ‘big issue’ is that this matter is due to see “the last stage of internal debate” this evening, at the first meeting of the Political Commission since the executive took office – and when the press has been billing the meeting as one to discuss solely the (controversy-wracked) political situation.

Clearly there is at least one either item on the agenda.

Once “the internal debate” on the Socialist project for Constitutional reform is ‘closed’ this evening, it will enter parliament for wider debate – at a moment in Portugal’s history when PS Socialists have an absolute majority, and can essentially push through anything they want.

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