Marcelo Rebelo de Sousa was very careful and constitutionally prudent when he sent the bill about euthanasia to the TC. Instead of pointing out the most sensitive issue - the inviolability of life (article 24º of the Fundamental Law), he questioned the imprecision of some definitions of the bill that he considered undetermined.
And the TC agreed in part. In the Court Decision N.º 123/2021, the Court that analyses the compliance of rules and decisions with the Fundamental Law that is written on the Constituição da República Portuguesa, confirmed the opinion of the President Marcelo saying “the definition of definitive injury of extreme severity according to scientific consensus, due to its imprecision, does not allow, even considering the normative context in which it is inserted, to delimit, with the rigor, the situations in which can be applied”, says the court.
However, regarding the second doubt of the President about the definition of “intolerable suffering”, that he also considers undetermined, the Court judged in reverse, reporting that: “although indeterminate, it is determinable according to medical profession rules, so it cannot be considered excessively indeterminate and incompatible with any constitutional norm”.
Despite the fact that the President of the Republic's request for preventive inspection of the bill did not refer to the inviolability of human life issue, article 24 nº1, of CRP, the judges decided to consider it and concluded that of the Constitution “does not constitute an insurmountable obstacle”.
In fact, the Court also mentions that, “the right to live cannot be transformed into a duty to live in any circumstances”.
After this decision of the TC - that had resulted from the opinion of seven judges against five - Marcelo is obliged to reject the bill, but it doesn’t mean that parliament cannot return to make another euthanasia bill, which they will probably do – respecting the guidelines of TC in order to avoid another rejection.
This means that parliament will now have the chance to formulate a new euthanasia bill, because the rejection of the TC is not linked to the “inviolability of human life”, as is much discussed, but rather with law writing, namely, the use of those undetermined expressions.
This is the second time that Marcelo has addressed the TC since he was elected for his first term, the first one was in 2019, about the bill of surrogate pregnancies.
The President of the Republic, after a bill approval by the parliament, has three options. They can approve; reject according to their own point of view; or send it the Constitutional Court and decide based on Court’s judgement, as he did this time.
Paula Martins is a fully qualified journalist, who finds writing a means of self-expression. She studied Journalism and Communication at University of Coimbra and recently Law in the Algarve. Press card: 8252