Constitutional Law at Portugal
Constitutional Law in Portugal is primarily governed by the Constitution of the Portuguese Republic, which was adopted on April 2, 1976, following the Carnation Revolution of 1974 that overthrew the Estado Novo dictatorship and established a democratic republic. The Constitution lays the foundation for the democratic political system, the rule of law, and guarantees fundamental rights and freedoms for all citizens.
The Constitution has been amended several times to adjust to political changes, including integrating Portugal into the European Union and ensuring compatibility with international standards.
š 1. Structure of the Portuguese Constitution
The Constitution of the Portuguese Republic is a detailed document divided into 8 Parts with 312 Articles. It defines the fundamental principles of governance, rights, and the state's structure.
A. Preamble
The preamble highlights Portugal's historical transition from dictatorship to democracy, emphasizing its commitment to freedom, justice, and democratic governance. It affirms the importance of national unity and solidarity in the construction of a democratic society.
B. Fundamental Principles (Part I)
Sovereignty of the People: Power emanates from the people, exercised through elections and the rule of law.
Republican Form of Government: Portugal is a Republic, rejecting monarchy and affirming a system of democratic governance.
Rule of Law: The Constitution establishes Portugal as a state of law, where all public and private actions must comply with the law.
Social State: It affirms the right to social justice, including health care, education, and social protection.
šļø 2. The Structure of Government
A. Executive Branch
President of the Republic:
The President is the head of state and is directly elected for a five-year term.
Powers include:
Appointing the Prime Minister.
Dissolving the Assembly of the Republic and calling new elections.
Exercising veto power over legislation.
Representing Portugal in foreign relations.
Commanding the armed forces.
Prime Minister and Council of Ministers:
The Prime Minister is the head of government and is appointed by the President, but must enjoy the confidence of the Assembly of the Republic.
The Council of Ministers is responsible for the executive management of the state.
The Prime Minister leads the government, formulates policies, and proposes laws.
B. Legislative Branch
Portugal has a unicameral legislature:
Assembly of the Republic (Assembleia da RepĆŗblica):
Composed of 230 deputies elected for a four-year term.
Powers:
Passing laws.
Approving the budget.
Oversight of the executive through questioning ministers, and investigating public matters.
Approving or rejecting constitutional amendments.
The Assembly uses a proportional representation system, ensuring broad political representation, including smaller parties.
C. Judicial Branch
Independence of the Judiciary is a fundamental principle, ensuring that judges are not subject to interference from the executive or legislative branches.
Supreme Court of Justice: The highest court of general jurisdiction, overseeing the lower courts.
Constitutional Court: This court is responsible for ensuring that laws and state actions are in compliance with the Constitution.
Judicial review allows courts to assess the constitutionality of laws, decrees, and acts of public authorities.
Other Courts:
Administrative and Tax Courts: Handle disputes between individuals and the state.
Courts of First Instance and Courts of Appeal: Deal with civil and criminal matters.
āļø 3. Fundamental Rights and Freedoms
The Portuguese Constitution guarantees a wide range of fundamental rights and freedoms, enshrined in Part II. These include:
A. Civil and Political Rights
Equality before the law and prohibition of discrimination based on race, gender, religion, nationality, or sexual orientation.
Right to life, personal freedom, and protection from torture or inhuman treatment (Article 24).
Freedom of speech, assembly, association, and religion (Articles 37ā41).
Right to vote and run for office (Article 49).
Right to a fair trial and due process (Article 32).
B. Social and Economic Rights
Right to education (Article 74).
Right to healthcare and social security (Articles 64, 63).
Right to work, unions, and strikes (Article 58).
Right to housing and protection of the environment (Article 65).
C. Cultural Rights
Freedom of culture and expression (Article 73).
Cultural diversity is recognized, and the Constitution calls for the protection of the Portuguese language and heritage.
D. Economic Rights
The Constitution enshrines property rights, but also includes provisions for socialization of key sectors like banking and transport, particularly in times of crisis.
š 4. Amendments to the Constitution
The Constitution of Portugal can be amended under a special procedure that requires a two-thirds majority in the Assembly of the Republic.
Referendums are also required for amendments to key areas such as the republican form of government, national sovereignty, and the Constitution's fundamental principles.
Key Amendments
1982 Amendment: Legalized the privatization of state-owned enterprises and a market economy.
2004 Amendment: Adapted the Constitution to Portugalās membership in the European Union.
2005 Amendment: Strengthened the guarantee of human rights and aligned the Constitution with EU law.
2007 Amendment: Changed the procedures for the election of the President and clarified the relationship between the President and Prime Minister.
š 5. Relationship with the European Union and International Law
European Union: As a member state, Portugalās Constitution recognizes the precedence of EU law over national law in areas of shared competence.
International Treaties: Portugal may ratify international agreements, but they must comply with the Constitution. Some treaties, especially those affecting fundamental rights or sovereignty, require ratification by the Assembly of the Republic.
š³ļø 6. Political System and Electoral Framework
Elections in Portugal are held every four years for the Assembly of the Republic and every five years for the President.
The Electoral System is based on proportional representation for parliamentary elections and a two-round system for presidential elections.
The Constitutional Court ensures the legality of elections and resolves any electoral disputes.
š Conclusion
Portugalās Constitution of 1976 established a democratic republic with a parliamentary system, separation of powers, and strong fundamental rights protections. Over the years, it has evolved to reflect Portugalās integration into the European Union, ensuring democratic governance, rule of law, and social justice.
The Constitution provides a framework for the relationship between the state and its citizens, balancing individual freedoms with social rights, while enshrining Portugalās commitment to democracy and human rights.
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