Manifesto on the Justice System: Translation
The self-described "50 + 50 Manifesto" demands a reform of the Portuguese Justice System. Read here a rough translation.
FOR A REFORM OF THE JUSTICE SYSTEM IN DEFENCE OF THE DEMOCRATIC RULE OF LAW
1 - After 50 years, our democratic regime needs structural interventions that can restore its full capacity to respond to today's multiple challenges. In this context, the reform of the justice system is a priority, as it is the sector of public power that has shown the most problems. As well as having to respect the Constitution, the actions of the judiciary must be understood by the people and, when this is not the case, it is justice itself that fails. This lack of understanding has become more pronounced over the last few years and has undermined much-needed confidence in the judicial system, as revealed by the opinion polls that have been carried out in recent years.
the opinion polls that have been carried out show.
2 - If slowness, particularly in administrative and tax jurisdiction and in criminal investigation, is the most persistent phenomenon - and unacceptable in a democratic society, since in practice it ends up jeopardizing the very realization of justice - there are many other shortcomings that are in no way compatible with the democratic rule of law, nor with the efficient management of the huge public resources allocated to it (which compare well with other European countries), nor with respect for the rights and interests of the recipients of the justice system, which is no less important to them than the education system or the health system is to its users.
3 - Despite being constitutionally protected, the recurrent breaches of judicial secrecy, with the active participation of a large part of the media, give rise to popular judgements, boycott the investigation, and grossly trample on the most basic rights of many citizens, cruelly penalizing them for the rest of their lives, even when they are eventually cleared by the courts. A regime that accepts this way of proceeding loses a significant part of its moral authority vis-Ã -vis those from whom it wishes to distinguish itself in terms of ethics and respect for human rights. The violation of the constitutional rules of criminal investigation is truly a regime problem.
4 - In addition to this disturbing reality, criminal investigations have also seen serious abuses in the use of measures that strongly restrict the rights, freedoms and guarantees of citizens, namely with the proliferation of prolonged telephone taps, unjustified house searches and even hasty preventive detentions of dubious legality. The usual media spectacle of the Public Prosecutor's interventions against political agents, along with the surgical placement of news about ongoing investigations, has intentionally confused the tree with the forest, molding public opinion into the idea that all public office holders are the same and that everyone is corrupt until proven otherwise. This perverse way of acting, which is more political than judicial, has produced obvious wear and tear on the regime and, as a result, reinforces popular discontent and opens the door to populism and demagoguery, all the more so as many cases go on forever without being concluded or end up without charges or a judicial conviction.
This procedure becomes even more critical when the practical results of the fight against corruption in Portugal are usually reduced to a worrying failure and a manifest inability to combat such a serious phenomenon by those who have a special responsibility to do so.
5 - Prolonged passivity in the face of this iniquitous reality has allowed us to reach the painful limit of seeing the actions of the Public Prosecutor's Office lead to the downfall of two parliamentary majorities resulting from recent elections, despite the fact that, in both cases, the Courts did not uphold and even contradicted the accuser's narrative. To make matters worse, the country continued to witness the inconceivable when, five long months after the Prime Minister resigned following the PGR's statement, the Public Prosecutor's Office didn't even deign to inform him of the subject of the enquiry or summon him to any procedural steps.
In addition to constituting undue interference in political power, these episodes are also not in keeping with the requirements of the democratic rule of law.
6 - Despite the seriousness of what happened and the widespread public criticism, all of these failings, which have strong repercussions on our democratic life and on trust in the justice system, have had no internal consequences for the conduct of these investigations and the procedural acts that follow from them, due to the way the Public Prosecutor's Office operates and the corporate culture that clearly prevails.
Unlike all the other constitutional powers, the judiciary operates almost entirely outside any democratic scrutiny or accountability, despite being constitutionally administered in the name of the People. The feeling of impunity that the ineffectiveness of the system in itself conveys to society is thus aggravated by the lack of existing internal evaluation mechanisms and the lack of external scrutiny mechanisms that are uncompromising towards the judiciary itself. However, in a constitutional democracy such as ours, no public office holder is irresponsible for their decisions and their failures in the eyes of the community.
7 - The power that, through free and democratic suffrage, citizens delegate to their direct representatives to define and implement the various sectoral policies on their behalf does not find effective expression in Portugal in the case of criminal policy. The definition of this policy is constitutionally the responsibility of the political power, but in its execution, the magistrates of the Public Prosecutor's Office, without any constitutional mandate, have, in practice, unchecked power, both externally and internally, not least because of the Attorney General's assumed lack of responsibility for investigations.
Despite this dangerous reality, neither any sovereign body nor any relevant political party has shown the necessary political will and courage to initiate a real reform of the justice system. In fact, in this matter, the pursuit of small, immediate party gains has prevailed to the detriment of the public interest, with positions varying according to the party affiliation of those affected, as shown by the contradictory party positions taken in the cases affecting the governments of the Republic and the Autonomous Region of Madeira.
8 - In the face of this worrying inertia, and at a time when Portuguese democracy has just celebrated its 50th anniversary, it is up to Portuguese society to create a civic uproar that leads politicians to assume their responsibilities and choose justice reform as an unequivocal priority in the defense of the democratic rule of law. For this reason, the signatories call on the President of the Republic, the Portuguese Parliament, and the Government, as well as all the national political parties, to take the necessary initiatives to implement a reform of the justice sector that fully respects the independence of the courts, the autonomy of the Public Prosecutor's Office and the guarantees of judicial defense, is unequivocally aimed at resolving the bottlenecks and dysfunctions that have long undermined its effectiveness and public legitimacy.
9 - In concrete terms, a reform is needed which, while not disregarding the legitimate aspirations of the agents of justice, is not tailored to the corporate interests of the various operators of the system, but which has the citizen and the defense of the rule of law as the central axis of its concerns, not ignoring obvious priorities, such as:
Guaranteeing an effective separation between political power and justice;
Combating opacity, reinforcing transparency in the functioning of justice institutions;
Respecting the power of the community, through its legitimate representatives, to define criminal policy and monitor its implementation, under constitutional terms;
Bring the Public Prosecutor's Office back to the constitutional model of hierarchical functioning, with the Attorney General at the top, making each level of the hierarchy responsible for the legality and quality of the professional work of the teams;
Strengthen the means of effective and independent evaluation within the judicial system and implement mechanisms for external democratic scrutiny, namely through periodic reports to be presented to the Assembly of the Republic by the institutional governing bodies of the different magistracies and their appreciation in the competent parliamentary committees;
To establish and enforce requirements of weighting, rigor, proportionality and concrete reasoning, both in the opening of criminal investigations and in the use of particularly intrusive means of investigation such as wiretaps and house searches, as well as in their periodic review, ensuring that the constitutional principle of the presumption of innocence prevails from the outset;
Effectively enforce the constitutionally protected secrecy of justice, applying criminal law and disciplinary rules against its violation;
Drastically reduce the length of judicial proceedings, fulfilling the requirement of a decision "within a reasonable time", under the terms of the Constitution and the European Convention on Human Rights;
Improve the realization of citizens' right of access to justice.
10 - Properly understood, the maxim "politics is for politics and justice is for justice" prohibits interference by one sphere in the other, but does not remove the democratic political power from its responsibility for defining and implementing justice policy. On the contrary, a proactive attitude is demanded of those who, in the final instance, are always responsible for responsibility for the proper functioning of institutions.
The best and noblest way to celebrate 50 years of Portuguese democracy is to recognize in a dignified and loyal manner what is weakening it and, honoring the names of those who fought for it, to have the courage and will to change.
1 May 2024