The recent decision to promulgate by the President of the Republic the new decree approved by the Assembly of the Republic, on a proposal from the Government, on the “foreigners regime” in Portugal, did not absolutely nullify the risk of unconstitutionality of several of its rules. It will certainly be an issue that the Constitutional Court will soon have to reassess, now under the scope of the successive review of constitutionality.
In addition to the material aspects of possible non-conformity with the Constitution that the Court analyzed, and which would have been improved upon reading by the President of the Republic, in the second version of the diploma, there is one, however, that, regardless of its legality in relation to the fundamental law – a judgment that is always cyclical, despite its interpretative seriousness –, which I believe has passed by public notoriety and to which it would be worth returning. This is the legal duty, imposed now, that a judge must consider in relation to AIMA – Agency for Integration, Migrations and Asylum, in the sentence he assumes in a subpoena for the protection of rights, freedoms and guarantees, “the number of administrative procedures that take place with that entity, in the face of possible abnormal pressures of requests and requests, the human, administrative and financial resources available, which is reasonable to expect, as well as taking into account the consequences that may result from the summons for the equitable treatment of all requests addressed to AIMA, IP” (no. 3 of article 87.º-B added to law no. 23/2007, of July 4, by decree approved by the Assembly).
The Constitutional Court understood, by majority, that what was essentially at stake here, in the duties now decreed to the judge, would be additional care in setting a new decision deadline for AIMA to fulfill the legal duties in question, typically in the face of very significant delays in relation to the legal deadlines. However, given the norm in question, it is frankly debatable whether this limited interpretation could in fact be the best interpretation.
The risk, which in my opinion is unacceptable, is that, in this way, a court is being forced to investigate whether an administrative entity has any support, to be validated judicially, for non-compliance with deadlines set by law to respond to citizens. Basically, the judge is asked to find out whether a given public entity has “the available human, administrative and financial resources” to decide within the time allocated to it by the State to decide and, in fact, it will only be able to do so based on information that the public entity eventually provides to the process. And it is requested that, before its judgment of “exclusion of guilt”, it whitewashes this delay and makes it irrelevant, demolishing, case by case, a procedure whose steps and times were made general and public, and invalidating the good faith and predictability of action that is expected from public entities.
A sense of interpretation perceived by the Constitutional Court is understandable, kind in a sense of equality, first of all to prevent an applicant who uses legal action to obtain a due decision from being, for that reason alone, placed in a more favorable situation than an applicant, even in a materially identical situation, who did not obtain this advice or possibility. However, the risk of allocating that judgment to the courts, given the State’s failure to comply, is, in my opinion, too high. In case of non-compliance by the Administration with the procedures and deadlines legally established for its response, especially “in the face of possible abnormal pressures of requests and requests”, the solution must be in the field of substantive political and administrative decision and not in the limitation of the judicial assessment of the duties to which the State itself is bound. A judge should not be asked to ratify a position that “it should have been decided, it wasn’t, it seems that there was no way to do so and therefore everything is fine”. This is a path that should not be started, that of procedural devaluation of the State’s decision-making times before the people. Even if students who do not have teachers in schools, patients with delayed appointments and surgeries in the SNS or defendants, defendants and plaintiffs with delays in court decisions may be on their way. If a State wants to limit rights and their use, it must do so clearly and loyally.
Professor at the Faculty of Law of the University of Lisbon
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