The jurisprudence of ignominy

It was with the honor of a press conference, apparently reserved for moments of particular political significance, such as only certain votes, that the panel of advisory judges of the Constitutional Court announced to the country their essential agreement with the President of the Republic's complaints regarding changes to the so-called "foreigners' law." With a less exuberant and more restrained president of the Constitutional Court than in the past, the performance nonetheless repeated a line-up the country has already seen. A few days earlier, in a gesture that defines him, the President had proclaimed that the current majority would be "judged" for this. He forgot that political judgment, once it arises, arises for everyone—himself included. This judgment, even if no longer electoral, he cannot escape.

Predictably, the Constitutional Court, in a more or less tacit alliance with the President, decided to launch a war against the government and begin resistance to fascism from the trenches dug in the Ratton Palace. The issue at hand seemed to provide the script that the frazzled left, in its essentially Manichean imagination, likes to dream of: humanity against cruelty; the good conscience of the left against the oppression of the right.

With varying majorities in the various votes, the Constitutional Court (TC) demonstrated in its ruling that, in essence, though not entirely, it agreed with the President's accusations. I don't say "doubts" or "suspicions." I say accusations of non-compliance with the Constitution because Marcelo, a political co-sponsor of the current state of affairs in Portugal regarding migration, intends to politically defeat the government on this issue. With the power to threaten the government with dissolution of the Assembly of the Republic revoked, Marcelo will drag his feet until the end of his term preserving these relics of Costa's government, without personal glory or national benefit. It's his mistake to think he's still in 2016.

But for now, it is the ruling that needs to be discussed. In the exercise of their public functions, in which they wield unequivocal political power, a constitutional judge is not called upon to pronounce on the merits or effectiveness of public policies, the responsibility for the preparation, implementation, and pragmatic evaluation of which falls to other sovereign bodies. Judges, without exception, will all have their inevitable political and ideological preferences—and in some cases, inflexibly partisan ones—not to mention that they have different intellectual backgrounds and diverse life experiences. Hence, the constitutional interpretations they undertake, here and in other democracies, are so divided. In the current ruling, the interpretations diverge profoundly. The fundamental point is that respect for the separation of powers, recognition of limitations on what judges can competently know about the reality they judge, and the democratic prohibition against usurping powers they clearly do not possess, require that good, legally and publicly valid reasons be presented to support their interpretations and decisions. When this does not happen, the judge becomes a usurper.

The majority of the advisory judges stretched and twisted, pirouetted and somersaulted, to ensure a political outcome. They did so in various ways and at various points in the analysis of the decree of the Assembly of the Republic. But the objective was clear. To embarrass and humiliate the government, contributing to the scenario that the left is trying to construct after its electoral defeats: to politically oppose a dark alliance—real or fictitious—between the PSD in government and fascism (or Chega). On the issue of immigration or any other.

In its ruling, the Constitutional Court (TC) could only adhere to the standards set out by the President in his request. It then addressed the issue of family reunification and the appeal against administrative summons—a complex matter of appealing to the administrative courts to overcome the bottlenecks resulting from the chaos that institutional immigration channels were left to under the Costa administrations. In the midst of this, the Court paid no attention to the concrete reality of the country's immigration situation, nor to immigrants' access to state services. It opted for a falsely heroic and hypocritically humanist retreat to principles and standards that other European countries do not adhere to. It had the audacity to pronounce itself, in separate paragraphs, on the effectiveness of the government's immigration policy for the politically determined objectives of those who win elections, not those who wield judicial-constitutional power. And, unaware that they were assuming themselves to be technically and politically superior to the Government and the legislative branch to do what judges cannot do – that is, govern – they proceeded to leave with unequivocal political meaning what the defeated counselor judges Gonçalo Almeida Ribeiro and José António Teles Pereira called, in their declaration of vote, a “specification book” for the executive branch.

The Court also ignored the basic verification of the consistency of European law with the theses they sought to enforce. Worse, they invoked case law from the Court of Justice of the European Union and the European Court of Human Rights that does not support their pretensions. Pretensions, moreover, that could not be based on a case law that does not exist in Portugal, nor on legal thinking that the Portuguese legal community has not yet developed the experience to develop. They criticized the Portuguese government's formulation of the rules, which transcribe almost word for word the text of the relevant European directives, which constitute authority explicitly confirmed by the Court itself. At times, the majority of judges said they were interpreting European law differently in their analysis of the rules under consideration—which they did wrong—or suggested that they were elevating Portugal far above the standards of other European countries because judges reside here who are morally distinguished from the rest of the mortals and who refuse to yield to who knows what demonic forces. Fluctuating between one thing and another, the legal consistency of a very serious decision perished.

The logical, textual, legal, and political absurdities in the August 8, 2025, ruling are so numerous that they are beyond the scope of a text of this type. From the two-year residence permit period being, in the Constitutional Court's view, excessive—despite being precisely the period established in the European directive (2023/86/EC) that underpins all EU Member State legislation and has already been confirmed by the case law of the Court of Justice of the EU—to the fact that the requirements for learning Portuguese and adhering to the constitutional values of the Republic were interpreted as a condition for reunification, and not subsequent to such reunification, every sophistry was used to achieve the desired political result.

They raised the issue by saying that the reunification of the spouse was indispensable, dispensing with any kind of time limit, and not just for minor children; they added the accusation that the two-year period was blind, not allowing for exceptional conditions for suspending that time limit, when articles 122, 123 and, finally, paragraph 3 of article 106 of the same law provide the so-called "escape valve" that our perceptive judges swear does not exist; everything had to be tried and forced.

In the ruling, the Constitutional Court even invalidates a rule due to a prejudicial interpretation of the word "namely." Yes, exactly what you read. The word "namely" would, in the minds of most judges, have a grammatical meaning equivalent to exemplifying, rather than the legally binding, exhaustive determination of requirements to be met to obtain family reunification, in which the members of the household would apparently be obliged to fulfill an infinite number of obligations imposed with masochistic pleasure by evil right-wing governments. To top it all off, in the complicated issue of administrative summons, which led to a collapse of AIMA's response and a blatant situation of inequity between immigrants with access to lawyers and those without, while making a lucrative profit out of these lawyers, the majority of the panel of judges ignored the government's formulation, which practically copies Article 20, No. 5 of the Portuguese Constitution.

What the Constitutional Court, allied with the President of the Republic, did was not merely use its jurisdictional power to politically oppose the government and a parliamentary majority. Unfortunately, this has become commonplace in some Western democracies, seriously damaging their quality and credibility. It did worse. It sought to prohibit a country from having a migration policy that counteracts the recent disaster, and which, curiously, never encountered any objection from our heralds of law and civilization. Not even when, due to the collapse of state services, the right to family reunification—the now sacrosanct right to family unity—was systematically denied to our immigrants, who were unable to even begin the bureaucratic process and found the Constitutional Court (TC) to be their only remaining anointed protector. The attempt to regulate all of this is unconstitutional. The collapse of all this is a victory for good humanitarian sentiments.

As in the famous book by the young Frederick, heir to the Prussian throne, the Portuguese judges also "dare to take up the cause of humanity against a monster that seeks to destroy it." But it turns out that they are not absolute kings of 18th-century Prussia—nor even heirs to such a throne. Nor are their enemies Machiavelli, who devours children for breakfast, but rather a majority democratically elected by the Portuguese people, responsible for exercising legislative and executive power, faced with a real and urgent problem, and who constitutionally and democratically demand respect for a jurisdictional power as established in the Constitutional Court.