After the expiry of the 25-day statutory deadline, judges of Portugal’s Constitutional Court have announced this week that several provisions of Parliament’s new Nationality Law are unconstitutional.
The ruling was in response to two requests submitted by the Socialist Party (PS). The law will now be sent to the President of the Republic, accompanied by an indication of unconstitutionality, and is expected to be returned back to parliament by President Marcelo.
At issue in the court’s review were two requests for scrutiny of the constitutionality of the Nationality Law, lodged by the Socialists after the failure to reach a parliamentary agreement with the ruling Social Democratic Party (PSD).
In the public reading of the judgement, the court announced that there was unanimity on three of the four provisions of the decree revising the Nationality Law that were declared unconstitutional, as well as on the provisions of the decree that introduce loss of nationality as an ancillary criminal penalty.
The head of the Constitutional Court explained that one of the provisions struck down was the rule that “automatically prevents access to Portuguese citizenship for anyone who has been convicted of an offence under Portuguese law carrying a sentence of two years’ imprisonment or more”.
“Because that provision prevents an assessment of the extent to which such a conviction undermines the specific bond of integration into the Portuguese community, the Constitutional Court decided, in line with its previous, consistent and settled case law, that Articles 26(1), read together with Articles 18(2) and 30(4) of the Constitution, have been breached,” he said.
Another provision declared unconstitutional was the one stating that “the consolidation of nationality does not apply to holders acting in good faith in situations of manifest fraud”.
The court held that, by failing to provide any criterion to distinguish between cases in which nationality obtained through fraud has already been consolidated and cases of “manifest fraud” in which consolidation no longer applies, the rule violates the principle of legal certainty and the absolute parliamentary reservation of legislative competence, the court said.
Thirdly, the judges ruled unconstitutional the provision under which “the approval of applications for the attribution or acquisition of nationality that were pending at the date the amendments to the Nationality Law enter into force depends on the requirements in force at the date the application was submitted, rather than, as under the current regime, at the date of the decision”.
“The Constitutional Court concluded that this violates the principle of protection of legitimate expectations inherent in the rule of law enshrined in Article 2 of the Constitution, as it undermines the legitimate expectations of applicants with pending procedures as to the applicability of the legal framework in force at the time their application was lodged,” explained Justice José João Abrantes.
The court also ruled unconstitutional the provision that “allows for the cancellation of nationality registration on the basis of conduct that conclusively and overtly rejects adherence to the national community, its representative institutions, and national symbols”.
According to the court, “the absence of any indication as to the type or pattern of conduct capable of fulfilling that concept makes it impossible for citizens to anticipate, with a minimum degree of legal certainty, which actions may be sufficient grounds for proceedings to be brought against them to oppose the acquisition of Portuguese nationality”.
The parliamentary decree revising the Nationality Law, along with another decree amending the Criminal Code to include loss of nationality as an ancillary penalty, both originating from a bill proposed by the current PSD/CDS-PP government, were approved on 28 October. They passed with 157 votes in favour from the centre and right-wing PSD, Chega, IL, CDS-PP and JPP parties, and 64 votes against from the left-wing PS, Livre, PCP, BE and PAN parties.
The more than two-thirds majority with which the decrees were approved allows for their possible confirmation by parliament, even in the face of the Constitutional Court’s findings of unconstitutionality, under the terms of the Constitution.
Invoking a supposed “national consensus”, the leader of Chega, André Ventura, said earlier on Monday that he hoped the court would recognise that “the people want change” and would uphold the Nationality Law.
However, Chega MP Francisco Gomes on Monday described the Constitutional Court’s decision to once again strike down amendments to the Nationality Law as “a betrayal to Portugal”, arguing that the ruling shows “a complete detachment from the reality experienced by the Portuguese people”.
According to the Chega MP, the Constitutional Court, like parties on the far left, “lives in a parallel reality” and is ignoring a national context marked by social disorientation, growing precarity, and rising insecurity.
The MP also criticised the Socialist Party, and other left-wing parties, for what he described as the systematic judicialisation of politics, blocking in the courts what they are unable to win through democratic debate, and likened this strategy to practices seen in political regimes and systems he regards as failed.
Francisco Gomes argued that this approach weakens representative democracy and strips parliament of its central role in shaping public policy.
On the other hand, the ruling PSD government believes that the Constitutional Court’s decision does not prevent the Nationality Law from going ahead and has signalled its willingness to introduce corrections, as was done previously with the Foreigners Law.
The Socialist Party (PS), for its part, welcomed what it described as a very robust ruling and said it wants to seek better solutions, without resorting to radical approaches.
Source: LUSA
