The plenary of advisory judges of the TC in its judgment no. 664/2021, recently made public and that Lusa had access, affirm that the Constitutional "is legally incompetent" to judge the referred appeal referring it to the TS.
"Thus, the Civil and Administrative Chamber of the Supreme Court should judge and decide, within its powers and within the time limits defined by law, the issues raised in the process, and the claimants may be able to appeal this decision to the competent court", read if in the judgment.
Irene Mateus António Tucala, Tatiana do Nascimento Jaime António, Ufánia Clementina Pinto Vieira and Agostinho António Santos lodged this appeal to the TC due to the "omission of judgment" of a case sent to the TS on alleged "irregularities" in the election of the CNE president .
The applicants filed on January 23, 2020 a measure of popular action against the decision of the Superior Council for the Judiciary (CSMJ) that designated the candidate Manuel Pereira da Silva "Manico" as the winner of the curricular competition to the position of president of the CNE.
They claim that after more than 180 days, "despite successive complaints" filed on April 28, 2020 and May 19, 2020, the TS "deliberately refuses" to judge the process, "violating" the legal provisions of the parents.
The admission, "out of the twenty-day period, of the PhD defense minutes, instead of the certificate, of the candidate Manuel Pereira da Silva" Manico ", the" deliberate non-introduction ", in paragraph 5 of the competition rules , the requirements that would prevent candidates "Manico" and Sebastião Diogo Bessa from submitting applications for the competition are pointed out, by the applicants, as irregularities practiced by the CSMJ.
The CSMJ "violated the competition rules by assigning the maximum score of 20 points to candidate Manuel Pereira da Silva, instead of 15 points, since, from the date of the opening of the competition until the end of the application deadline, it only boasted the academic degree of master ", he pointed out.
"The five points awarded by the PhD should be declared null", they underline, describing other "irregularities" and at the same time claim that the candidate Agostinho António Santos is declared as fair, legitimate and worthy "winner of the contest.
Judge Manuel Pereira da Silva was sworn in by parliament as CNE president on February 19, 2020, amidst many protests from the opposition and civil society that accuse him of "lack of moral and legal standing" for the post.
For the TS, since the Supreme Court was raised at first instance and there has not yet been an appeal to the plenary of that court, the highest body of common jurisdiction, the Constitutional Court "is incompetent to judge the present appeal".
In plenary, nine Constitutional judges agreed to declare that instance incompetent in judging the case, while Judge Maria da Conceição de Almeida Sango voted against the decision of her colleagues and had a losing vote with a declaration.
According to Judge Mara da Conceição de Almeida Sango, in her explanation of vote, the TS, as the ultimate guardian of the constitutionality of laws and the action of public authorities, "should not be silent, nor should it cover the patent and ostentatious denial of justice. and in the face of fraud to the law, operated by the Supreme Court ".
In the case under analysis, the judge argues, we are not facing a mere delay in the trial or the normal delays in the process, "but rather an obstacle or objective refusal to judge popular action".
The Constitutional Court "is not a court of mere proclamation or instance that acts through appeals, it is a true instance of constitutional justice, to whom the Constitution, reserves an important and crucial role of protecting the Constitution, in the last resort, the interested because they were already stripped of an alternative to obtain justice that they claim ", also observes judge.