Constitution of Portugal

The present Constitution of Portugal was adopted in 1976 after the Carnation Revolution.^[1] It was preceded by a number of constitutions including ones created in 1822 (following the Liberal Revolution of 1820),^[2] 1838 (after the Liberal Wars),^[3] 1911 (following the 5 October 1910 revolution),^[4] and 1933 (after the 28 May 1926 coup d'état).^[5]

Former Portuguese Constitutions

Constitution of 1933

The Portuguese Constitution of 1933 was introduced by Prime Minister António de Oliveira Salazar in 1933, establishing the basis of the authoritarian Estado Novo regime, following the 28 May 1926 coup d'état. It is credited as the first constitution of any recognized country embracing corporatist principles (though predated significantly by the Charter of Carnaro), espousing a bicameral parliament, including a western-styled National Assembly, elected directly every four years, and the Corporative Chamber, representing different "corporations", schools, universities, colonies and local municipalities, in effect appointed by the National Assembly after its inaugural. The role of the Corporative Chamber was limited to that of an advisory body, while all legislation was handled by the Assembly under the direction of its only party or "movement", the National Union, an ideology-lacking beacon completely subordinate to the Salazar administration. The Constitution also stipulated for a strong President of Portugal, naming the Prime Minister on his own accord with no deference to the opinions of the Assembly required to be taken into consideration, such President to be elected every five years through direct elections with no term limits. Óscar Carmona served as President, although outmaneuvered politically by Salazar, until his death in 1951. The two following presidents, Craveiro Lopes and Américo Tomás, were more or less puppets of an aging Salazar, although the latter did not hesitate to use his wide-ranging powers to prevent Salazar's successor, Marcelo Caetano from performing changes aimed at reforming Portugal's authoritarian government. The direct consequence was the coup d'état of 1974.

Constitution of 1976

The constitution of 1976 was preliminary drafted and largely completed in 1975, then finished and officially promulgated in early 1976. At the time the constitution was being drafted, a democratic outcome was still uncertain in the midst of the revolution. Even after a leftist coup had been put down in November 1975, it was not known if the armed forces would respect the assembly and allow work on the constitution to go forward. The Movimento das Forças Armadas (MFA, English: Armed Forces Movement) and leftist groups pressured and cajoled the assembly, and there was much discussion of establishing a revolutionary and socialist system of government. Moreover, not all of the assembly's members were committed to parliamentary democracy. The membership was intensely partisan, with some 60 percent of the seats occupied by the left.

After great struggle, the Constituent Assembly eventually adopted a constitution that provided for a democratic, parliamentary system with political parties, elections, a parliament, and a prime minister. The document also established an independent judiciary and listed a number of human rights. Although relatively few of these provisions are exceptional, some of the constitution's features are noteworthy; including its ideological content, its provision for the role of the military, and its dual presidential-parliamentary system.

Until the constitutional revisions of 1982 and 1989, the constitution was a highly charged ideological document with numerous references to socialism, the rights of workers, and the desirability of a socialist economy. It severely restricted private investment and business activity. Many of these articles were advanced by Portuguese Communist Party (PCP) representatives in the Constituent Assembly, but they were also advocated by members of the Socialist Party (PS), who at that time, for electoral reasons, were seeking to be as revolutionary as the other left groups. The resulting document proclaimed that the object of the republic was "to ensure the transition to socialism." The constitution also urged the state to "socialize the means of production and abolish the exploitation of man by man," phrases that echoed Karl Marx's Communist Manifesto. Workers' Committees were given the right to supervise the management of enterprises and to have their representatives elected to the boards of state-owned firms. The government, among many admonitions in the same vein, was to "direct its work toward the socialization of medicine and the medicopharmaceutical sectors."

Next, the military was given great political power through the role given by the constitution to the MFA-controlled Revolution Council that, in effect, made the MFA a separate and almost co-equal branch of government. The council was to be an advisory body to the president (who was at first likely to come from the military itself), and would function as a sort of constitutional court to ensure that the laws passed by parliament were in accord with the MFA's desires and did not undermine the achievements of the revolution. The council was also to serve as a high-level decision-making body for the armed forces themselves. The council was a concession to the MFA for allowing the Constituent Assembly to sit and promulgate a new "basic law." Some of the Portuguese Left, especially the PCP, supported the idea.

The final innovative feature of the constitution was that it provided for a system of government that was both presidential and parliamentarian. The Constituent Assembly favored two centers of power in order to avoid both the dangers of an excessively strong executive, as was the case during the Salazar period, and the weaknesses of parliamentary instability, as was the case in the First Republic.

The constitution was controversial from the start. It was widely seen in political circles as a compromise document in that all participants in its drafting had been able to incorporate in it provisions they found vital. The constitution's parliamentary sections had the support of PS, the Social Democratic Party (PSD), and the Democratic and Social Centre (CDS); its socialistic content had the support of the PCP and its allies and the PS.

Even before the constitution became law, politicians had agreed to change some provisions after the five-year period in which changes were prohibited (although some circles of the PS and PSD wanted to change it even before that threshold). Objections to the document centered on its ideological content, its economic restrictions, and its recognition of a military role in the governance of the country. The CDS, the party furthest to the right among those which had participated in the document's drafting, refused to ratify it. However, the party agreed to abide by it in the interim.

1st review (1982)

By the early 1980s, the political climate was ripe for constitutional reform. The centre-right coalition Democratic Alliance, formed by the PSD, the CDS, and the People's Monarchist Party, the PPM, was in power; the PS had been voted out of office, and the PCP was politically isolated. The first amendments, enacted in 1982, dealt with the constitution's political arrangements. Although many of the economic provisions of the constitution had been not been implemented and were, in effect, ignored, there were not yet enough votes to reach the required two-thirds majority needed for their amendment.

The 1982 amendments were enacted through the ample votes of the AD and the PS. This combination of centre-right and centre-left political forces managed to end the military's control of Portuguese politics. It abolished the Council of the Revolution, controlled by the military, and replaced it with two consultative bodies. One of these, the Higher Council of National Defense, was limited to commenting on military matters. The other, the Council of State, is composed by the President himself, plus former presidents, plus other prominent elected and non-elected figures of the Portuguese state, and it does not have the power to prevent government and parliamentary actions by declaring them unconstitutional. Another amendment created a Constitutional Court to review the constitutionality of legislation. Ten of its thirteen judges were chosen by the Assembly of the Republic. Another important change reduced the president's power by restricting presidential ability to dismiss the government, timeline to dissolve parliament, or veto legislation.

2nd review (1989)

Despite the 1982 amendments, centrists and conservatives continued to criticize the constitution as too ideological and economically restrictive. Hence, the constitution was amended again in 1989. Many economic restrictions were removed and much ideological language eliminated, while governmental structures remained unchanged. The most important change enabled the state to privatize much of the property and many of the enterprises nationalized after 1974 revolution.

Provisions

The Portuguese Constitution includes the Preamble and 296 articles. The articles are organized in the Fundamental Principles, four parts plus the Final Dispositions. The parts are subdivided in titles and some of the titles are subdivided in chapters.

Preamble

The preamble to the Constitution consists of the enacting formula:

On the 25 April, 1974, the Armed Forces Movement, crowning the long resistance of the Portuguese people and interpreting their deep feelings, overthrew the fascist regime.

Freeing Portugal from the dictatorship, the oppression and the colonialism represented a revolutionary change and the start of a historic turning point in the Portuguese society.

The Revolution restored the Portuguese rights and fundamental freedoms. In the exercise of these rights and freedoms, the legitimate representatives of the people meet to draw up a Constitution that meets the aspirations of the country.

The Constituent Assembly affirms the decision of the Portuguese people to defend the national independence, to guarantee the fundamental rights of citizens, to establish the basic principles of democracy, to ensure the rule of democratic law and make way for a socialist society, in respect the will of the Portuguese people, with a view to building a freer, more just and more fraternal country.

The Constituent Assembly, meeting in plenary session of the 2 April, 1976, approves and decrees the following Constitution of the Portuguese Republic:

Fundamental principles

The fundamental principles cover the first eleven articles (1st to 11th) of the Constitution.

This part covers the general Constitutional principles, stating the status of Portugal as sovereign republic (Article 1st), the status of the Portuguese Republic as a state based on the democratic rule of law (Article 2nd), the sovereignty residing in the people and the legality being subordinate to the Constitution (Article 3rd), the Portuguese citizenship (Article 4th), the territory of Portugal (Article 5th), the status of the State as being unitary (Article 6th), the governance of Portugal in the international relations (Article 7th), the incorporation of the international law in the Portuguese law (Article 8th), the definition of the main tasks of the State (Article 9th), the universal suffrage and political parties (Article 10th) and the national symbols and official language (Article 11th).

Part I - Fundamental rights and duties

The Part I of the Constitution defines the fundamental rights and duties. It includes 68 articles (12th to 79th), subdivided in three titles.

Title I states the general principles of the fundamental rights and duties.

Title II refers the rights, liberties and guaranties, namely the personal ones (Chapter I), the political participation ones (Chapter II) and the workers ones (Chapter III).

Title III refers the economical, social and cultural rights and duties, these being covered respectively by the chapters I, II and III.

Part II - Economical organization

The Part II defines the economical organization and includes 28 articles (80th to 107th), subdivided in four titles.

Title I states the general principles of the economical organization.

Title II refers to the plans.

Title III refers to the agricultural, commercial and industrial policies.

Title IV refers to the financial and tax system.

Part III - Organization of the political power

The Part III defines the political organization and includes 169 articles (108th to 276th), subdivided in ten titles.

Title I states the general principles of the organization of the political power.

Title II refers to the President of the Republic, stating his/her status and election (Chapter I), his/her competency (Chapter II) and the Council of State (Chapter III).

Title III refers to the Assembly of the Republic, stating its status and election (Chapter I), its competencies (Chapter II) and its organization and functioning (Chapter III).

Title IV refers to the Government, stating its function and structure (Chapter I), its formation and responsibility (Chapter II) and its competencies (Chapter III).

Title V refers to the Courts, stating their general principles (Chapter I), their organization (Chapter II), the status of the judges (Chapter III) and the Public Ministry (Chapter IV).

Title VI refers to the Constitutional Court.

Title VII refers to the autonomous regions.

Title VIII refers to the local power, stating its general principles (Chapter I) and specifying the freguesia (Chapter II), the municipality (Chapter III), the administrative region (Chapter IV) and the organization of dwellers (Chapter V).

Title IX refers to the public administration.

Title X refers to the national defense.

Part IV - Guarantee and revision of the Constitution

The Part IV defines the guarantee and revision of the Constitution, including 13 articles (277th to 289th), subdivided in two titles.

Title I refers to the review of constitutionally.

Title II refers to the constitutional revision.

Final and transitory dispositions

The last part of the Constitution, covering seven articles (290th to 296th), defines the final and transitory dispositions.

It refers to the status of the previous law, to the transitory existence of the districts, to the criminalization and judgement of the former officers of the PIDE/DGS, to the re-privatization of the goods nationalized after the 25 April 1974, to the transitory regime applicable to bodies of local government, to the referendum about the European Treaty and to the date and entry in force of the Constitution.

References

1. "The Constitutional Monarchy". Assembly of the Republic of Portugal. Retrieved 12 December 2013. |section= ignored (help)
2. "The Constitutional Monarchy". Assembly of the Republic of Portugal. Retrieved 12 December 2013. |section= ignored (help)
3. "The Constitutional Monarchy". Assembly of the Republic of Portugal. Retrieved 12 December 2013. |section= ignored (help)
4. "The Constitutional Monarchy". Assembly of the Republic of Portugal. Retrieved 12 December 2013. |section= ignored (help)
5. "The Constitutional Monarchy". Assembly of the Republic of Portugal. Retrieved 12 December 2013. |section= ignored (help)

External links

• Official website
• Text of the Portuguese Constitution with seven revisions