So here is some very interesting news. The opinion of Jorge Miranda (aka “father of the Constitution”, drafter of the 1976 Constitution, lifelong constitutional scholar) on the nationality law changes was reported back in July, but the full text wasn’t available.
It has now entered the parliamentary record, so journalists have seen the whole thing, and apparently it’s even more scathing than initially reported. More than 80 pages arguing large parts of the draft changes are unconstitutional.
First, the retroactivity to June 19. He calls the government’s reasoning excessive and “offensive”, pointing out that people are fully within their rights to rely on a law as currently written until it is officially changed by parliament. He says that a government’s dislike of existing rules doesn’t erase them.
He rejects the claim that people should have anticipated tougher rules because they were discussed during the election campaign. He says campaign talk is not law and can’t be a substitute for legislation passed by parliament. He argues that reasoning diminishes the role of parliament, since it assumes they will just rubber stamp whatever the government wants.
He attacks the lack of any transition period (yes, really!). He says the legal consequences of state acts must come with guarantees of “predictability” and “determinability.” If there is no transitional regime, he argues the legitimate expectations of applicants are denied, both for those whose position is already “consolidated”, meaning they’ve fully met the requirements under the existing law, and for those on the verge of meeting the requirements but cut off by a sudden change.
He also says the idea of counting residence time from the approval date rather than from the application date is constitutionally “inadmissible”. He says that would give the administration full control by dragging out decisions and leaving people entirely dependent on bureaucratic timing. He says this is an affront to the principle of “human dignity” set out in Article 1 of the Constitution.
So really quite a striking and damning opinion that touches on a lot of the issues we have been screaming into the void about here. Even if the government changes the law, given who Miranda is, this document gives disgruntled ARIs a strong basis for legal challenge.
I couldn’t find the full opinion online yet, only commentary, but I would guess it will be published in parliamentary archives at some point. Article below (in Portuguese and behind paywall).