This Friday, the President of the Republic submitted the decree amending the Nationality Law to the Constitutional Court, according to a note on the Presidency's website .
Drawing attention to the fact that the amendment to the Nationality Law, with effects applicable to processes still in progress, could worsen the situation of Israeli hostages in Gaza who have pending applications for the granting of Portuguese nationality, which could be considered contrary to the principles of trust and the dignity of the human person, as well as even, objectively, the right to life, as a Portuguese-Israeli hostage has already been released based on her Portuguese nationality, the President of the Republic submitted that decree of the Assembly of the Republic, solely and specifically because of its article 6.
Your Excellency President
of the Constitutional Court
Excellence,
In accordance with paragraph 1 of article 278 of the Constitution, as well as paragraph 1 of article 51 and paragraph 1 of article 57 of Law no. 28/ 82, of 15 November, I hereby request the Constitutional Court, on the grounds indicated below, to assess the conformity with the same Constitution of the following rules contained in Decree No. 134/XV of the Assembly of the Republic, received and registered at the Presidency of the Republic, on January 18, 2024, to be promulgated as law:
- the norm contained in article 6.
1.º
The Decree under consideration, in its article 6, creates a new special regime applicable to pending requests for granting nationality to descendants of Portuguese Sephardic Jews, introducing additional criteria for such granting.
2.º
With this new special regime, the parliamentary legislator aims to remedy, with retroactive or at least retrospective effectiveness, the unconstitutionality, organic and material, of article 24-A of the nationality regulation, approved by Decree-Law no. 26 /2022, of March 18, as invoked by the Porto Administrative and Fiscal Court, and widely reported in the press, which introduced additional requirements for granting nationality to descendants of Portuguese Sephardic Jews.
3.º
This new regime also appears to violate the principle of protection of trust, inherent to the principle of the Rule of Law, as enshrined in article 2 of the Constitution, as well as, due to retroactive effects, violating the prohibition of retroactivity of rules restricting rights, freedoms and guarantees, contained in paragraph 3 of article 18 of the Constitution.
4.º
In fact, with other cases taking place in the Courts that also invoke the unconstitutionality of the rule in question, it is understandable that the applicants, in particular those for whom this recognition could represent respect for the right to life, wait, with hope and anguish, just as the their families, the outcome of these processes, confident in their arguments, and the only justification for the rule now approved is that the legislator seeks to retroactively remedy this unconstitutionality, intervening, through legislation, in ongoing processes in these Courts.
5.º
In fact, in the current context, the change in question may be reflected in the situation of Israeli hostages and those of other nationalities, held by Hamas, in Gaza, several of whom have pending requests for the granting of Portuguese nationality, as descendants of Portuguese Sephardic Jews. As is known, in these cases, the detention of a nationality other than Israeli has led to their release, as has already happened with a Portuguese-Israeli. The creation of additional obstacles to the granting of Portuguese nationality in these cases can even be considered to violate the principle of human dignity, enshrined in article 1 of the Constitution, as well as even, objectively, the right to life, enshrined in article 24 .º of the Constitution, insofar as the conclusion of the ongoing processes of attribution of Portuguese nationality, under the law still in force, may mean, as it has already meant, the possibility of release by Hamas and survival itself. It is worth remembering that an applicant for Portuguese nationality has already died in captivity under the same law.
In view of the above, it is requested, in accordance with paragraph 1 of article 278 of the Constitution, as well as paragraph 1 of article 51 and paragraph 1 of article 57. 28/82, of 15 November, the preventive inspection of the constitutionality of the rules contained in article 6 of Decree no. 134/XV of the Assembly of the Republic, due to violation of the provisions of articles 1. , 2nd and 18th, no. 3, 2 24th, all of the Constitution of the Portuguese Republic.
I offer Your Excellency my most respectful greetings.
Lisbon, January 22, 2024
The President of the Republic
Marcelo Rebelo de Sousa