The decree from parliament amending the Penal Code to include the loss of nationality as an accessory penalty is argued by the PS to violate principles of proportionality, universality, equality, criminal legality, and the prohibition of perpetual or unlimited sentences. The MPs seek the review of articles 1, 2, 4, 5, and 6 of article 69-D of the decree, which was based on a PSD and CDS-PP project.
Regarding the decree revising the Nationality Law, PS MPs contest, among other points, the absence of a transitional regime and the repeal of article 15, number 4 of the current law, which safeguards, for “residency period counting purposes,” the consideration of “the time elapsed from the moment the residence permit was requested, as long as it is granted.”
For PS MPs, with the repeal of this rule and without replacement by another regime, “the individual’s position is left unprotected” against “administrative inertia,” which “borders on contradiction with the principle of human dignity” and violates principles of “trust protection” and “equality and the prohibition of retroactive restrictive laws on rights, freedoms, and guarantees, as stated in article 18, number 3 of the Constitution.”
On the lack of a transitional regime in this decree, which takes effect immediately upon publication, PS MPs argue that this “appears to clearly warrant a judgment of unconstitutionality by attempting a sudden change in the existing legislative framework, without considering trust protection concerns that would require caution and some degree of gradualism.” They therefore request preventive review of article 7 regarding the application of the law over time.
The request also covers provisions in article 6, number 1, letter f, which excludes the acquisition of nationality for those convicted, “upon final judgment, to a prison sentence of equal to or more than two years,” and article 6, number 3, concerning the granting of Portuguese nationality to stateless persons, article 9, number 1, letter a, concerning opposition to nationality acquisition, and article 12-B, number 3, concerning nationality consolidation.
PS MPs claim violation of principles of proportionality, prohibition of automatic penalties, rights protection of stateless persons, restrictive legal reserve of rights, freedoms, and guarantees, guilt principle, personal sanction character, trust protection, and the principle of equality, as well as the prohibition of retroactive restrictive laws on rights, freedoms, and guarantees.
These two nationality decrees, both originating from a PSD/CDS-PP government proposal, were approved on October 28, with 157 votes in favor from PSD, Chega, IL, CDS-PP, and JPP, and 64 votes against from PS, Livre, PCP, BE, and PAN, and were sent to Palácio de Belém on November 11.
This majority, which exceeds two-thirds of the MPs, allows for their possible confirmation, even if unconstitutionality is declared by the Constitutional Court.
The Constitution stipulates that legislative initiatives on “acquisition, loss, and reacquisition of Portuguese citizenship” must be in the form of an organic law and thus require an absolute majority of the MPs in active duty to be approved.
In these cases, within eight days of receiving the decrees, besides the President of the Republic, the Prime Minister and one-fifth of the MPs – 46 out of 230 – can request preventive review of any of its norms, according to the Constitution.
