Opportunity to strengthen the rule of law

At this time when a new legislature is being drawn up, with a significantly altered parliamentary political geography, the proposals presented for the Judicial Constitution, the Rule of Law and Fundamental Rights, by the Justice Reform Agenda, published and discussed in 2023 ( Justice Reform Agenda. An Open and Broad Reflection of the Judiciary , published by Almedina), have gained added importance.

This working document, whose general coordination I assumed, was based on the transversal (and prolonged over time) activity of a team with a broad composition, but originating from an initiative of Portuguese judges.

In a post-electoral scenario, with different majorities for certain constitutional considerations, it is important to reinforce some essential mechanisms of the rule of law and democracy. The Reform Agenda has chosen some of these safeguards that, in my view, are proving to be increasingly indispensable.

1. Strengthening the constitutional enshrinement of judicial independence and the Statute of Judges (organic laws or reinforced majorities) The Agenda argues that the essential dimensions of judicial independence and the status of judges must be protected constitutionally or through organic laws that require reinforced majorities, as recommended by international best practices, particularly within the Council of Europe and the European Union, in view of the growing signs of erosion of the rule of law on the international and global stage.
2. Affirmation of the non-political nature of the election of the presidents of all Superior Courts In polarized political environments, the politicization of appointments to top positions (namely, STJ, STA, Constitutional Court and Court of Auditors) in the judicial system is a real risk. The Agenda proposes a model for choosing the presidents of all higher courts based on strictly professional and merit criteria, unrelated to political affiliations or interests. This would reinforce the perceived and real impartiality of the judicial system, and be a guarantee against political interference.
3. Improvement of the process for appointing judges to the Constitutional Court The Constitutional Court, as the guarantor of the Constitution, plays a key role in the stability of the rule of law. Its composition is often the subject of debate and can be influenced by political dynamics. The Agenda suggests improving the appointment process for constitutional judges, which should aim to reduce politicisation and promote selection based on competence and independence. In the current scenario, the transparency and robustness of the appointment process of the Constitutional Court are even more vital to its legitimacy and effectiveness in guaranteeing constitutional principles and values.
4. Densification of the subject matter of governance of the judicial system Governance of the judicial system, particularly through the Superior Councils of the Judiciary and the Administrative and Fiscal Courts, is essential for its proper functioning. Politicisation or inefficiency of these bodies can compromise justice. The Agenda proposes a greater densification of the subject of judicial governance, with a focus on efficiency, transparency and accountability . In a legislature where reform of public administration and the optimisation of resources will be central themes, governance proposals can find an echo, provided they demonstrate efficiency gains and strengthen the autonomy of the judiciary without compromising democratic control.
5. Strengthening the jurisdictional guarantee of democracy and fundamental rights Strengthening fundamental rights and the role of the rule of law are concerns that should unite different political sensibilities. The emergence of more critical political agendas, sometimes questioning democratic institutions, makes the uncompromising defence of human rights even more pressing. The proposal for a direct remedy for guaranteeing human rights aims at more effective and accessible protection for citizens. This measure, by strengthening the rule of law and the protection of individuals, can be presented as an essential pillar of democracy, capable of garnering the support of different political forces, regardless of their ideological differences, by underlining the importance of a robust justice system in the defence of individual freedoms.
6. Effective protection of digital rights as fundamental rights in the administration and digital transition of justice, with special emphasis on access to law and the courts The digital transition is a reality that cuts across all sectors, including justice. Data protection and the guarantee of rights in the digital space are growing concerns for citizens. The Agenda recognises the importance of enshrining and protecting digital rights as fundamental rights, extending them to the administration of justice. This is an area where there must be common ground for consensus, given the universality of the challenges posed by digitalisation and the need to ensure the security and accessibility of justice in the online environment. The emphasis on access to law and the courts through digital means is crucial for the modernisation of the system and can be seen as a step forward in ensuring justice for all citizens, regardless of their level of digital literacy.

The current political scenario, characterised by fragmentation and the need for broad consensus, represents a major challenge for justice reform, but also a vital need to strengthen and guarantee the rule of law. The transversality of the themes proposed by the Justice Reform Agenda can serve as a bridge for dialogue between the different political blocs. The Agenda's proposals do not arise from political or procedural circumstances and were adopted due to their non-partisan nature and their importance for democratic stability and citizens' trust in justice. Negotiation and dialogue with all parliamentary forces will be crucial to achieving the necessary majorities, preventing justice from becoming a political battlefield or, even worse, an insidious means of attacking democracy and the rule of law.