Portuguese courts vs the racist Chega party
The Portuguese judicial system faces a crucial test: will it use laws outlawing racist and fascist organisations to ban the populist Chega party?
Any idea that Portugal is immune to the growth of the far Right witnessed in several other European nations over the last decade is being put to the test by recent events.
The populist radical Right party, Chega, founded in 2019 by André Ventura and other dissidents from the Portuguese Social Democratic Party (PSD), has been making inroads on the political scene. In its first election, that same year, it became the first far-Right party to elect a member to the Portuguese National Assembly since 1974, the year that marked the end of the authoritarian regime of the Estado Novo.
The legality of the party is now being challenged in court on the grounds that it has violated the Portuguese Constitution, which forbids the existence of racist organisations or associations that propagate fascist ideology.
The request to ban the party came in February 2021 from presidential candidate and former MEP Ana Gomes, who requested that the Portuguese Constitutional Court declare Ventura’s party illegal following the national elections held that January.
The case of the Movement of National Action (MAN)
Although rare, requests for the dissolution of political organisations are not unprecedented in Portuguese legal history. In 2004, the Constitutional Court disbanded the socialist organisation Força de Unidade Popular (FUP), which was accused of promoting and perpetrating acts of violence with the goal of destabilising the political order.
Far-Right organisations have also been subject to legal action requesting their dissolution. The best-known example is that of the Movimento de Acção Nacional (MAN). Founded as a cultural association in 1985, it was initially inspired by the imperial narrative of the Estado Novo, which portrayed Portugal as the founder and rightful leader of a multi-continental and multiracial empire. By the end of the decade, however, the movement had embraced white supremacist and anti-immigration ideas that resembled those advocated by its far-Right counterparts in countries like France, the UK and Germany.
Investigations revealed that MAN had expanded significantly in the late 1980s, harnessing support from other extremist organisations, most notably the Portuguese neo-Nazi and ‘bonehead’ (right-wing skinhead) movements.
Given the violent track record of these groups, the revelation that MAN had close ties with them led Portugal’s attorney general to request the dissolution of the party on the grounds that it supported fascist ideology. Plagued by factionalism and facing a potential legal battle in the Constitutional Court, MAN leaders opted to voluntarily disband the party before the case reached court. As a result, judges dismissed the case in 1994, arguing that a decision was no longer required as MAN no longer existed as an organisation.
New case, similar issues
In the case against Chega, the Portuguese Constitutional Court is presented once again with many of the same questions that judges faced in the early 1990s: is Chega an organisation that promotes a ‘fascist ideology’? Does the racist nature of statements and policies proposed by André Ventura suffice to qualify Chega as promoting a fascist ideology? If not, can these statements and policy proposals alone justify the banning of the party?
For the legal experts interviewed by the Portuguese daily Diário de Notícias, the answer to most of these questions seems to be no. According to former judge and MP (now a member of the European parliament) Vital Moreira, Chega’s statutes and policies do not reflect the adoption or promotion of a fascist ideology. On the question of whether the constitutional prohibition on racist organisations gives sufficient grounds for banning Chega, Moreira is sceptical, doubting that racist statements made by André Ventura would be sufficient to justify a ban. Likewise, Paulo Otero, professor of constitutional law at Lisbon University, argues that while racism alone could suffice for the Constitutional Court to declare an organisation illegal, the racism “must be intense”.
However, determining what qualifies as “intense racism” is proving to be a challenge for the Portuguese authorities. Due to controversial remarks, often aimed at Portugal’s Roma population, Ventura has twice been fined by the Portuguese Commission for Equality and Against Discrimination (CICDR), a body that includes members of parliament, government and civil society organisations. But the Lisbon courts appear to have a different opinion regarding his statements. Ruling on an appeal from Ventura, the Lisbon’s criminal court acquitted the leader of Chega and overruled the decision of the CICDR that fined Ventura for statements made on Facebook associating – without evidence – Portugal’s Roma minorities with the assailant of a nurse in the city of Beja.
So far, Ventura is closely following the far-Right playbook
While statements like these are well-known means used by far-right actors to stigmatize minorities and mobilize their supporters, the judges in Lisbon argued that Ventura’s post “do not reveal a value judgement of any person or group of people, nor discrimination in any form against any person or group, based on their ethnicity.”
A crucial moment for Portuguese democracy
The decision by the Lisbon court reveals that words are unlikely to suffice in the legal battle against Chega. Instead, Portuguese legal experts seem to agree that the proscription of a party should only occur when there is a grave risk to the political order, which often means the use violence as means to achieve a political goal. That understanding was at the heart of the cases against FUP and MAN and is a crucial part of the definition of fascism under Portuguese law.
However, violence is no longer the preferred means by which far-right parties like Chega subvert the democratic order. In recent years, figures like Jair Bolsonaro, Viktor Orban and Donald Trump have learned, with an ever-greater degree of effectiveness, that they can use democratic freedoms and institutions to undermine democracy from within. Initially, they erode social cohesion at the expense of a group associated with their political opponents, often exploiting existing grievances within society.
Minorities are often a target, but it is not uncommon for groups like intellectual elites, or broad categories like ‘the Left’ to be used as vehicles for mobilising their followers. Once in power, they erode democratic institutions by meddling in government agencies and courts, sometimes with the assent of parliaments.
So far, Ventura is closely following the far-Right playbook. His remarks targeting the Roma minorities and his attacks on the credibility of the press very closely resemble the tools employed by Bolsonaro, Orban and Trump to divide society into ‘us’ and ‘them’. Under the guise of free speech, he foments racism and incites his supporters against the Roma and black Portuguese minorities, profiting from existing divides to pave the way into power for his party.
If he succeeds, there is little doubt he would continue to follow in the footsteps of his far-Right counterparts abroad. Regardless of the outcome, the case against Chega will mark a defining moment for Portuguese democracy. Should the attorney general proceed with the case, it will be up to the Constitutional Court to provide a valuable precedent in the fight against the far Right. If it fails to do so it will legitimise racism and risk endangering Portuguese democracy.
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