PSD project for automatic notification of policy with risks of unconstitutionality

Constitutionalist Tiago Fidalgo de Freitas warned this Tuesday, in the Assembly of the Republic, that the PSD project already approved in general terms on automatic notification of holders of political positions may violate the Constitution.

This position was expressed by the university professor at the Faculty of Law of Lisbon within the scope of the conference on the status of holders of political positions, which is taking place in the Senate Room, when he participated in the debate on “Registration of interests and other declaratory obligations”.

Last week, Parliament approved in general terms a PSD bill that provides that political office holders will be automatically notified about who wants to access their income tax return — a bill that received favorable votes from PSD and IL, abstention from PS, Livre and BE and votes against from Chega, PCP and PAN .

In this project, it is foreseen that the Entity for Transparency (EpT) must ensure that, “whenever any consultation occurs” of a declaration by a holder of political office, he/she is notified and knows “the identification of the respective applicant”.

This Tuesday, at this conference, constitutionalist Tiago Fidalgo de Freitas left several warnings, starting by arguing that, in the PSD diploma, the problem does not lie in the issue of identification, “but, rather, the problem lies in making the data subject aware of who requested access to it ”.

“What is the constitutional right at stake here? Does a member of parliament need to know the identity of the journalist , the private individual, the member of the opposition, the opposition party who requests access to his statement?” he asked.

For Tiago Freitas, “a member of an opposition party can also request, in order to exercise their political opposition activity, which is constitutionally protected, access to this data”.

“Therefore, I cannot see any relevant constitutional right that justifies it . In a logic of deepening transparency, there are more sophisticated and more evolved legal regimes than ours, in terms of access to information, which even allow anonymous requests”, he added.

The university professor also spoke about the issue of greater exposure of political office holders, which, according to some schools of opinion, puts them in a more fragile position. Tiago Fidalgo de Freitas contradicted this thesis.

“I don’t think that can be said, because it completely distorts all logic. The holder of a political power body is subject to greater scrutiny by virtue of the functions he exercises, the democratic principle, and is therefore subject to obligations of transparency ,” he stressed.

Also in this debate, which was moderated by PAN deputy Inês Sousa Real, the president of the Entity for Transparency (EpT), Ana Raquel Moniz, spoke mainly from a philosophical point of view about the nature of the current regime of reporting obligations, highlighted the progress towards the existence of a data platform and the more flexible nature of access by the majority of citizens.

He then made a point of emphasizing that the entity he presides over “is not a criminal police body”, but rather administrative and independent ”.

“It does not have the power to apply sanctions, nor to investigate with a view to applying sanctions,” he added.

In the following debate, Margarida Mano, a former minister and former PSD deputy, left several warnings about the effective powers of the EpT, which Ana Raquel Moniz had previously classified as an administrative entity.

“Whoever validates the information contained in a politician’s statement must cross-check all the information. The information must be validated based on the other information held by the State,” he argued.

According to Margarida Mano, “an administrative review that does not take care of the integrity of the information makes no sense”. This position, however, was contested by the vice-president of the socialist party, Pedro Delgado Alves, who rejected the existence of “yet another entity” with powers to monitor political office holders.