José Sócrates appeals to the European Court

1 In line with other precedents, former Prime Minister José Sócrates's announced appeal to the European Court, after years of appealing to Portugal's higher courts and remaining unsatisfied, presupposes that the European Court not only has authority over the Portuguese courts, but is also wiser and fairer in defending human rights, and will certainly, or probably will, correct the lack of jurisdiction, justice, or independence of the Portuguese courts. And because the European Court applies the European Convention on Human Rights, it also presupposes that this Convention is better, fairer, and more progressive than the Constitution of the Portuguese Republic. I do not criticize José Sócrates for these assumptions: he simply shares a common assumption among us, even among legal scholars. But in my view, it is highly questionable. I believe that neither of these two assumptions is justified. Neither the European Court deserves more respect, admiration, and trust than the Portuguese higher courts, nor does the European Convention on Human Rights, of the Council of Europe, deserve more respect, admiration, and consideration than the Constitution of the Portuguese Republic. And I find no reason, whether rational, constitutional, or even moral, to submit the Portuguese Constitution and the Portuguese courts to the European Convention on Human Rights and the European Court, respectively. The Council of Europe undoubtedly has merits, and I admit that it could be internationally useful. But I see no justification for, given our Constitution—which even incorporates the Universal Declaration of Human Rights, through the provisions of Article 16—submitting ourselves to another Declaration of Human Rights and an international court that applies that European Declaration. Indeed, we already have another Declaration of Rights, the Charter of Fundamental Rights of the European Union. I don't think that more declarations of rights are better. This multiplication only diminishes the authority of the Universal Declaration, as some claim.

2 I am well aware, we all know, that many constitutionalists and political scientists have been interested in developing the theory called "multilevel constitutionalism," which, put in terms accessible to laypeople, divides, or unfolds, constitutional sovereignty—traditionally conceptualized as one and absolute within each sovereign people—into international levels, hierarchized according to an order that tends to give international spheres precedence over national ones. This theory has been stimulated primarily (but not exclusively) by the new political experience of the European Union and the expectation of its evolution toward levels of greater constitutional integration of its member states; and the novelty of globalization is also invoked. But it has a history of many and varied precedents. Starting with the old theory of Empire; and more recently, the communist theory of the Soviet Union, of the alleged subordination of the sovereignty of its neighboring communist countries.

3 To characterize the new theory of multilevel constitutionalism more precisely, I will cite the example of a respectable Portuguese university research project, publicly announced in very interesting terms, as follows : "Multilevel constitutionalism is a doctrinal trend that emerged in the early 1990s. It is based on the assumption that the State—incapable of responding to the challenges that arose at the time, particularly due to globalization—ceased to be the sole center of political power, competing, at the supranational and transnational levels, with other powers, chief among them the European Union. Given the interaction, interconnection, and interdependence of all these powers, which, with the State, form a constitutional system comprised of functional, institutional, and substantive domains, it currently seems impossible to study any legal topic without taking this reality into account."

4 In another source, now Brazilian, we read this summary of a legal essay entitled " Multilevel Constitutionalism: Dialogues and (in) Human Rights ": "The contemporary conception of human rights has inaugurated a new sphere of responsibility that is no longer the exclusive concern of state-constitutional sovereignty. This new scenario demands a broadening of the traditional view, according to which only states are responsible for rights and only to their citizens. In this new sphere of spatiality, the importance of the interface and dialogues between the different protective planes for the realization of human rights is highlighted, grounded in the tense and productive coexistence of these various parallel and interconnected orders that dialogue around the expansive force of human dignity. The intent of this productive conflict is to expand and enhance the protection of human rights, based on a plural, complex, impure, and mixed logic, in order to provide a complementary coexistence that always interacts for the benefit of the protected subjects and their rights."

5 As I interpret these and similar explanations, this is a new, or renewed, internationalist conception that diminishes, because it relativizes, the classic political power of peoples who consider themselves sovereign and equal among all others in the world community. As established in Article 2 of the United Nations Charter: "The Organization and its members […] shall act in accordance with the following principles: (1) The Organization is based on the principle of the sovereign equality of all its members." On this basis, long consensual in the West, there can (and should) be constitutional cooperation between sovereign national peoples, and international political commitments, such as that of the United Nations itself, where peoples are not constitutionally hierarchical; but not an international hierarchy of levels of constitutional political power.

6 "Natural law" itself, whose universal legal supremacy has been believed in the West since antiquity (recall its proclamation in Sophocles' tragedy Antigone), and which can be considered modernly interpreted in "modern constitutionalism," whose latest positive consecration is the Universal Declaration of Human Rights—requires constitutional enshrinement among the various peoples of the world for this right to be considered a valid and enforceable constitutional law within them. And if this does not occur, the lesser solution remains: the conclusion of International Conventions, which merely create a legal right inferior to constitutional law.

7 To properly establish multi-constitutionalism, it is necessary to decide with reason, clarity, and determination what the foundation of the original sovereign political power is, and who can then legitimately exercise it, as a "constituent power," to establish constitutional law and then a potential multi-level constitutional system. This is what "modern constitutionalism" established, proclaiming the dignity of the human person and the rights and duties that flow from that dignity as innate, inviolable, inalienable, and irrevocable. This was the case in the Bills of Rights of the 18th century, in the United States of America and in France, and later, with greater development, in the Universal Declaration of Human Rights of 1948. And this is also what is enshrined in the Portuguese Constitution, from which I quote only a few excerpts: "Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people..." (art. 1); “The Portuguese Republic is a Democratic State governed by the rule of law based on the dignity of the human person and popular sovereignty…” And “it is a Democratic State governed by the rule of law based on respect for and the guarantee of the implementation of fundamental rights and freedoms…” (art. 2); “The constitutional and legal precepts relating to fundamental rights must be interpreted and integrated in harmony with the Universal Declaration of Human Rights” (art. 16).

According to these constitutional principles, the basis that legitimizes any and all constitutional political power is the dignity of the person and the innate and inviolable rights and duties that flow from it. And the exercise of these personal constituent rights belongs directly and exclusively to the "will of the people."

8 Undoubtedly, the case of the European Union is special because we have an express constitutional provision that legitimizes our membership. However, it is not considered to be the creation of a Federation, which would reduce the Portuguese State to a federated state. And any theorization that it constituted a constitutional level superior to the sovereign power established in the Portuguese Constitution must confront the argument that, both in the Constitution of the European Union and in the Portuguese Constitution that legitimized the possibility of our membership in the Union (cf. Article 7), the relationship between the two levels of political power is entirely subject to respect for the principle of subsidiarity, which, as we know, constitutionally gives legal preference to the levels of decision-making power closest to the citizens, not those most distant. This has been disrespected, first and foremost, by the European Parliament, which has insisted on the arrogant practice of approving resolutions and recommendations, almost always ideologically motivated, addressed to public opinion and the sovereign bodies of member countries, as if it had any institutional, doctrinal, or other authority to do so. This is, in fact, the danger of creating higher levels of political power: that these powers seek to dominate lower levels. It is paradoxical that the justified fear of political powers, which historically justified (and still justifies) the decisive problem of limiting political power to the national level, now seems to have disappeared, in multilevel constitutionalism, against new supranational powers.

9 Let us also consider, albeit briefly, the specific issue of the European Convention on Human Rights. This Convention begins its text thus: "The signatory Governments, Members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948…" And immediately afterwards it says: "Considering that this [European] Declaration is intended to secure the universal and effective recognition and enforcement of the rights set forth therein…" Now, as we can see, the first reference to the Universal Declaration is meaningless; it is pure hypocrisy, because it immediately asserts that the human rights that will be recognized and guaranteed are only those contained in the text of the European Convention, not in the text of the Universal Declaration. This is very significant, because such an alternative to the Universal Declaration occurred in 1950, just two years after the adoption of the Universal Declaration in 1948.

10 But continuing to examine the Preamble of this Convention on Human Rights, we also read this: "Reaffirming their deep attachment to these fundamental freedoms, which constitute the true foundations of justice and peace in the world..." Now, this claim to ground justice and peace in the world had been proclaimed two years earlier by the Universal Declaration in its Preamble, but based on a greater wealth of human rights: "Considering that recognition of the dignity and of the equal and inalienable rights of all members of the human family constitutes the foundation of freedom, justice and peace in the world..." Here too, we note the European Convention's idea of ​​replacing the Universal Declaration.

11 So, by the way, it's worth asking: where do we stand? With the Universal Declaration or the European Convention? Because, although very different, both aim to constitute the same universal foundation for peace and justice throughout the world. Our Constitution opted for the Universal Declaration, in Article 16. And the Universal Declaration nowhere states that human rights are only those set out in it; but the European Convention is repetitive in stating that it only recognizes and guarantees some rights, those set out in its own text: "Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have primary responsibility for ensuring the rights and freedoms defined in this Convention and its Protocols and, in so doing, enjoy a margin of appreciation, subject to the supervision of the European Court of Human Rights established by this Convention, Have agreed as follows: (Article 1) The High Contracting Parties recognize to every person within their jurisdiction the rights and freedoms defined in Title I of this Convention." Only these, therefore, should be noted. The Portuguese Constitution is also more extensive and more complete in its enunciation of fundamental rights; and in addition to those it specifies, it also adds the following in Article 16: "The fundamental rights enshrined in the Constitution do not exclude any others contained in the applicable laws and rules of international law."

12 However, what is the purported authority of the European Court's judgments? Article 46 states: "The High Contracting Parties undertake to respect the final judgments of the Court in disputes to which they are parties." Now, disregarding the question of comparing the deserved authority of Portuguese and European judges, the European Court applies the European Convention on Human Rights, while the Portuguese courts apply the Portuguese Constitution, which is more developed, more perfect, and more progressive than the European Convention, and includes the Universal Declaration. Can it then be concluded that judgments applying the European Convention are, by definition, better and more valid than those applying the Portuguese Constitution? And should they therefore have a higher hierarchy? Certainly not.