Antonio Marinho e Pinto, Chairman of the Bar Association (the organization that represents the professional group of lawyers), in an Opinion article in the Jornal de Notícias of Portugal (March 11, 2013, “Guardian of the party system”), criticizes the refusal of registration of the MAS as a political party by the Constitutional Court claiming that “with decisions like this, the TC pays a bad service to democracy and the rule of law, although very useful to existing parties.”

Guardian of the party system

The Constitutional Court of Law has refused the legal inscription of the Movimento Alternativa Socialista (MAS – Socialist Alternative Movement) as a political party, basing itself in what it considers to be a deficient formulation of Article 12 of the respective Draft Statutes.

This article predicts the existence of a jurisdictional organism called Commission of Rights, whose competence is to respond, analyse and decide with independence and impartiality on matters related to the rights and duties of the affiliated members. It is constituted by three individuals who cannot be part of any leading organisms of MAS and its decisions are to be obligatorily held by the entire party, although is given the possibility to an affiliated member of appealing to the National Convention.

The Constitutional Court (CC) has decided, however, that the formulation of article 12 does not respect the legal requirement of judicial control of the decisions taken by the Commission of Rights, due to the fact that it doesn’t make it clear the possibility of an appeal of those decisions to the civil Courts, which would violate the articles 30.0º, n.0º2, n.0º3 of the Law of Political Parties (LPP). The least we can we say about the CC’s decision is that it doesn’t make any sense because it doesn’t guide itself by juridical criteria and doesn’t respect the Constitution.

If the LPP establishes that the members can judicially appeal of the decisions taken by the organisms of the political parties, in the terms of the law of the CC, we cannot understand in what way the effective use of that right may be affected by the fact that it doesn’t figure in the statutes of MAS, as otherwise happens in the statutes of already legalized political parties.

The CC, by rejecting MAS inscription without even granting it the possibility of correcting this so-called error that would obstruct that act, is incurring in the same type of mistake that it has frequently corrected in appeals that come from other courts. But it is also materially violating a constitutional guarantee (the freedom of citizens to form a political party) for it is preventing a party from running for elections.

It is a juridical error, unworthy of a court with the dignity and responsibility of the CC, to imagine that the fact that the statutes of a political party do not predict the possibility of its affiliated members appeal to the courts, would anyhow prevent them from enjoying that right. The right of appeal to the courts is embedded in a constitutional principle that is directly applicable and binding for public and private entities. The LPP itself (a law of reinforced values) also states that right, whose efficiency cannot depend on whether it is explicitly stated on any party regulations or statutes of inferior juridical value.

What unfortunately seems to be the matter is the CC’s incapacity of resisting two very dangerous temptations: that of being a kind of second parliamentary chamber with the right of veto over all laws of the Republic and, on the other hand, that of transforming itself in a guardian of the present party system, stopping or making the arrival of new competitors as difficult as possible.

Our party system is rotten and corrupted. The present parties have privileges that are scandalous in view of the current hardships of the country, the citizens and the companies. Among those privileges is the right to share amongst them tens and tens of million euros coming yearly from the budget. So the more parties there are, the greater the risk of diminishing the share that goes to each of them. On the other hand, today’s political intervention constitutes in Portugal a monopoly of the parties. And if creating a political party becomes more and more difficult, the citizens will evermore grow apart from a desirable participation in political life, with all the consequences that this will have for the weakening and loss of prestige of democratic institutions.

With decisions like this one the CC pays a bad service to democracy and the rule of law, though very useful to existing parties. And above all by arrogating itself the function of guardian of the party system and making its renewal difficult with “juridical” arguments that convince nobody, the CC is overstepping the proper functions of a real court.

Article published in the Jornal de Notícias (Portugal), on March 11, 2013.