Constitutional Court

Judges Robert Carolan and Almiro Rodrigues dissented from the Court’s Judgment in this Presidential election matter, addressing three main issues: (1) the quorum, (2) the number of candidates and (3) the consequences of the judgment.
First, the dissent distinguished between “quorum” and “voting,” and the respect in which the rules applicable to each may differ. Citing Article 69.3 of the Constitution and the Assembly’s Rules of Procedure, the dissent asserted that the legislature meets the quorum requirement when more than 50% of all Assembly Deputies are present, The dissent noted that once established the quorum is maintained during the life of the session, citing Robert’s Rules of Order, regardless of the number of votes necessary to issue a decision, citing Articles 20, 68, 69, 76, 90, 91 and 131 of the Constitution as examples, The dissent contended that according to the Constitution and the Assembly’s Rules of Procedure a successful Presidential candidate must receive a two-thirds vote (80 Deputies) on the first or second ballots, or a one-half vote (61 Deputies) on the third ballot. Here, the dissent argued, the only candidate received 62 votes on the third ballot, more than the minimum votes necessary for election. The dissent emphasized that the drafters of the Constitution clearly understood the difference between a quorum and voting because it allowed a different number of votes on a third Presidential ballot, but never changed the quorum requirement, The dissent admonished that a Constitutional interpretation that requires a two-thirds quorum would allow a small minority of Assembly members (i.e., 41 members) to prevent a majority of Deputies from accomplishing the Assembly’s business, which would be inconsistent with the intentions of the drafters of the Constitution and render Article 86.4 meaningless, Second, the dissent contended that the Judgment’s conclusion that an unopposed candidate could not be elected was based upon a misreading of Article 86.5 of the Constitution, adding that the drafters would have specifically prohibited an election involving only one candidate if that was their intention. The dissent emphasized that Article 86.5 refers to “any” candidate, the plain meaning of which is “one or more,” asserting that a two-thirds vote is more appropriate for a run-off between two or more candidates, whereas a majority vote on a third ballot is appropriate for endorsement of a single candidate, although it is also suitable for a two candidate race. According to the dissent, requiring two or more Presidential candidates could prevent the election of a candidate supported by the majority of Deputies, creating a sham of the electoral process, and undermining political stability. The dissent argued that the Court did not have the authority to order the Assembly to nominate more than one candidate, Third, the dissent noted that the Court could not change the results of the election, emphasizing that Article 86.6 required dissolution of the Assembly and a new election in view of the majority’s holding that the disputed election violated the Constitution. Finally, the dissent argued that the Court did not have authority to order the Assembly to nominate at least two Presidential candidates or to take a fourth vote, For the reasons stated, the dissent asserted that the Judgment was erroneous