—Teresa Violante, Friedrich-Alexander Universität Erlangen-Nürnberg
[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]
The politicization of judicial appointments is one of the most common threats to the rule of law nowadays. Usually, this phenomenon originated in the political branches, as the examples of Poland, Hungary, and, more recently, Spain and Israel show. The challenges to the rule of law are particularly acute if the appointments concern constitutional courts or supreme courts with constitutional adjudication powers.
The Deadlock at the Portuguese Constitutional Court
The case of Portugal raises curious issues from a comparative perspective. The Constitutional Court has been facing a deadlock in the renewal of its composition due to a lack of consensus at the judicial and not political level.
The Court comprises thirteen judges: ten are elected by a two-thirds parliamentary majority, and the elected judges themselves select the other three via a process called co-optation. Although there are very different mechanisms for determining the composition of constitutional courts, co-optation is a genuine curiosity in comparative law. The only country with a system that resonates with this mechanism is Estonia. However, Estonia does not have a full-fledged constitutional court. The Supreme Court integrates a Constitutional Review Chamber. Each year, the Supreme Court en banc appoints from among the judges of the Court two new members of the Constitutional Review Chamber and releases two most senior members. Judges of the Supreme Court are appointed by the Parliament upon proposal by the Chief Justice, following a public competition.
The Portuguese Constitutional Court was created in the first constitutional revision (1982). Its powers and design were engulfed in a political quarrel between the two main political parties and the President of the Republic. The mechanism of co-optation was devised as a replacement for the power of the President of the Republic to appoint judges, despite the semi-presidential nature of the political system. A “gentlemen’s agreement” was struck: the two main parties share the ten elected judges and two of the co-opted judges, and the third co-opted judge is politically neutral. Over time, both parties have allowed other minority parties to appoint judges.
This agreement has generated instability over the years. The Law on the Constitutional Court provides for the extended tenure of incumbent judges as a remedial mechanism to compensate for failure to elect judges. This remedy, which should be considered an exception, has increasingly become the rule. Although there have been cases in the past, it was only in the last decade that failure to elect new judges when the constitutional 9-year term expires became more the exception than the rule. Without considering the cases of resignation, only the replacement of parliamentary elected judges in July 2015 was timely done (5 judges). In 2012, three judges (one co-opted) had their mandates extended by six months. In subsequent years, the other three co-opted judges underwent the same condition (by 6 and 5 months). Later, the mandate of three judges elected by the Parliament was extended by 2 and 3 months, respectively. Recently, inaction to replace judges with expired terms of office reached its peak in this century: one of the co-opted judges has had his mandate expired since October 2021, and the other since July 2022.
A politicized judicial appointment process
In 2022, for the first time in the Court’s history, leaks about the co-optation process helped us understand the polarization underlying the stalemate. The conservative wing tried to elect a university professor whose anti-abortionist writings and controversial views on freedom of the press raised the opposition of the progressive judges.[1] As retaliation, the conservative judges blocked the process until the end of the term of the current President (which will expire at the beginning of March 2023), claiming, allegedly, fears that the ruling majoritarian political party is trying to control the Court.[2] Judicial independence is therefore being raised as an argument to maintain the deadlock on the renewal of the Court and to prevent the regular functioning of the institution. There seems to be an unhealthy confusion between respect for pluralism and representation of “party interests”.
Despite the reasons that justify the inaction of the Court to substitute the judges whose mandate has long expired, there is an apparent institutional failure underpinning the stalemate. What is more intriguing is that the last decade shows a greater tendency for deadlock in co-optation than in the election in Parliament.
Preventing Deadlocks
Abusing the clause to extend the mandates of the judges, which are constitutionally limited, not only raises issues of the rule of law but can also be challenged on constitutional grounds. The validity of such a statutory clause can be challenged as it extends mandates beyond the 9-year term constitutionally entrenched. In Bulgaria, at the request of the Public Prosecutor, the Constitutional Court annulled a provision of the Constitutional Court Act providing for the extension of the term of office of the judge until the appointment of her successor.[3] The Venice Commission has also raised similar arguments.[4]
Parliament should prevent the abuse of the remedial clause to compensate for the failure to elect judges. As Gertrude Lübbe-Wolff rightly notes,[5] anti-deadlock mechanisms such as extended tenure of incumbent judges do not remove incentives to block. By remedying the effects of blockage, they preserve and may even reinforce the manipulative effects of the deadlock. Under guidelines of the Venice Commission, in case of prolonged inaction, the power of election should be devolved from the original constitutional body to the remaining ones – in this case, to the Parliament. Another mechanism worth considering is opening the replacement procedure six months before the judge’s term of office expires.
The deadlock at the Portuguese Constitutional Court is an intriguing case from a comparative perspective. It shows that crises in the judicial branch can challenge the rule of law and that the politicization of judicial appointments is not confined to conflicts in the political bodies. Judicialization of appointments does not guarantee a depoliticized process.
Suggested citation: Teresa Violante, A Constitutional Crisis in Portugal: The Deadlock at the Constitutional Court, Int’l J. Const. L. Blog, Feb. 22, 2023, at: http://www.iconnectblog.com/2023/02/a-constitutional-crisis-in-portugal-the-deadlock-at-the-constitutional-court/
[1] https://newsbulletin247.com/world/104475.html
[2] https://observador.pt/especiais/ala-direita-deve-bloquear-novos-juizes-para-o-tribunal-constitucional-ate-2023/
[3] Katalin Kelemen, “Appointment of Constitutional Judges in a Comparative Perspective – with a Proposal for a New Model for Hungary”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229184
[4] Opinion on the Draft Law on the Constitutional Court of Montenegro, parag. 25, available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2008)030-e
[5] “How to prevent blockage of judicial appointment”, https://verfassungsblog.de/how-to-prevent-blockage-of-judicial-appointments/.
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