One of the main arguments by the government that the law changes affecting GV are not unconstitutional, is that they are two separate laws - foreigners law and nationality law - and therefore a promise made of 5 years under the foreigners law is unrelated to changes to the nationality law and thus cannot create any legitimate expectation.
Yet, the government, in an attempt to avoid constitutional scrutiny of the nationality law, has tied a provision of the penal code into the new law addressing loss of citizenship for certain criminal violations.
I may not be the brightest Portuguese legal scholar, but it seems to me there CAN be a direct link between the nationality law and other laws related to legitimate expectations that requires constitutional scrutiny by the TC.
Shocking/scary that these two “legal scholars” did not include the following in their list of reasons that the Nationality amendments are unconstitutional:
Totally arbitrary notion of basing Nationality year-counting on the start date of 1st residency card (which is completely at the mercy of an inept bureaucracy, political meddling, and simple randomness)
Legitimate expectations and the protection of trust (other than for the Sephardic route)
Legal scholar Isabel Comte, author of the book ‘Nationality Law – Annotated and Commented’, and lawyer Renato Martins addressed a document to the President, requesting that the laws be vetoed or sent to the Constitutional Court.
The article, in Google´s translation of it, says ¨The two decrees sent today to the Belém Palace had votes in favor corresponding to more than two-thirds of the deputies - a majority that allows their eventual confirmation even if unconstitutionalities were decreed by the Constitutional Court.¨ Does that mean that if the Constitutional Court strikes down clauses of the law, it can get voted in as is anyway? I thought the 2/3 rule meant the Parliament can override the President´s veto, not that they can override the Constitutional Court. Not that I trust Google´s translation. And I have seen articles before that contained blatant inaccuracies.
… mesmo que venham a ser decretadas inconstitucionalidades pelo Tribunal Constitucional. A Constituição prevê, no artigo 279.º, que, em caso de veto por inconstitucionalidades, "o decreto não poderá ser promulgado ou assinado sem que o órgão que o tiver aprovado expurgue a norma julgada inconstitucional ou, quando for caso disso, o confirme por maioria de dois terços dos deputados presentes, desde que superior à maioria absoluta dos deputados em efetividade de funções
My reading: if vetoed or declared unconstitutional by the TC, the decress can’t be promulgated or signed unless the body that approved the law fixes it, or overrides the veto by 2/3s majority.
This is true, but I think it’s also the case that the Assembly has never used its override power to ignore a TC ruling. It would trigger, I suspect, something of a constitutional crisis. Some academics regard the override provision as effectively obsolete.
I have speculated here (and alas it’s only speculation) that by pushing through the most extreme version of the bill and not doing a separate bill for the citizen revocation for criminals, parliament gets multiple news cycles of being tough on immigration and then gets to blame the courts when they quietly walk it back. We’ll have to see, but there seems to be a pattern of message bills that get substantially reworked later.
In addition to reviewing laws before promulgation, the Constitutional Court can review laws that are already promulgated and rule parts of them unconstitutional.
So passing a law that’s already been ruled unconstitutional would be an … interesting choice.
this is definitely my hope…that there is inside info that pols know around the courts rejecting even moderate versions of the bill, therefore they go with the extreme version to maximize pandering to the rightwing base.
But there are two bills, with the more constitutionally risky one hived off into its own…
The two decrees sent to Belém Palace today…
The decree revising the Nationality Law was approved in a final overall vote on October 28th with 157 votes in favor… This decree increases the timeframes for foreigners legally residing in Portugal to acquire Portuguese nationality and restricts its granting to those born in Portugal.
On the same date, and with the same vote, the parliamentary decree providing for the loss of nationality as an accessory penalty for those convicted and sentenced to an effective prison term of four years or more was approved in a final overall vote.
I stopped outside the Tribunal Constitutional - Constitutional Court - in Lisbon yesterday on a walking tour. It has ruled on many human rights cases over the 50 or so years since democracy to clarify the law of the land.
They looked like good people, honourable people, going in and out of this esteemed building.
The government paid almost 20,000 euros for an external opinion on the Nationality Law.
The office of the Minister of the Presidency signed a contract for the “issuance of a legal opinion” on the revision of the Nationality Law, but did not clarify what the opinion’s contribution was.
The Ministry of the Presidency, overseen by Minister António Leitão Amaro, paid €19,500 for legal consulting services related to the revision of the Nationality Law. The contract, signed on October 27th with JSVS Consulting, Lda., for a period of one month, consists of “the issuance of a specialized legal opinion within the scope of the Constitutional Government Program, chapter ‘Regulated and Humanist Immigration’, with the aim of proceeding with the revision” of the law, according to the document available on the Base portal.
expand for excerpt from 'Contrato_signed_GMP.pdf'
Cláusula 6.a
Especificações da prestação de serviços
O Segundo Outorgante presta os serviços objeto do contrato a celebrar nos termos previstos no presente contrato e na legislação aplicável.
Os serviços a prestar consistem na emissão de parecer jurídico especializado no âmbito do Programa do Governo Constitucional, capítulo “Imigração regulada e humanista”, com intuito de se proceder à revisão da Lei da Nacionalidade, alargando o tempo mínimo de residência e presença efetiva em território nacional, eliminandoa possibilidade de a permanência ilegal ser considerada para efeitos de contagem desse tempo, e assegurando que quem adquire a nacionalidade portuguesa tem uma relação efetiva e uma integração de sucesso no País, reunindo as condições necessárias para assumir os direitos e cumprir os deveres inerentes à nacionalidade.
Os serviços a contratar não incluema representação ou intervenção em processos judiciais.
