Constitution of the Portuguese Republic - Part IV

PART IV

Guaranteeing and revision of the Constitution

TITLE I

Review of constitutionality

Article 277

(Positive unconstitutionality)

  1. Norms that contravene the provisions of the Constitution or the principles enshrined therein are unconstitutional.
  2. On condition that the norms in question are applied in the legal order of the other party, the organic or formal unconstitutionality of properly ratified international treaties does not prevent the application of the norms they contain in the Portuguese legal order, save if that unconstitutionality results from the breach of a fundamental provision of the Constitution.

Article 278

(Prior review of constitutionality)

  1. The President of the Republic may ask the Constitutional Court to undertake the prior consideration of the constitutionality of any norm contained in an international treaty that is submitted to him for ratification, in any decree that is sent to him for enactment as a law or executive law, or in any international agreement, the decree approving which is sent to him for signature.
  2. Representatives of the Republic may also ask the Constitutional Court to undertake the prior consideration of the constitutionality of any norm contained in a regional legislative decree that is sent to them for signature.
  3. The prior consideration of constitutionality must be requested within a time limit of eight days counting from the date on which the legislative act is received.
  4. In addition to the President of the Republic himself, the Prime Minister or one fifth of all the Members of the Assembly of the Republic in full exercise of their office may ask the Constitutional Court to undertake the prior consideration of the constitutionality of any norm contained in any decree that is sent to the President of the Republic for enactment as an organic law.
  5. On the date on which he sends any decree that must be enacted as an organic law to the President of the Republic for enactment, the President of the Assembly of the Republic shall notify the Prime Minister and the parliamentary groups in the Assembly of the Republic thereof.
  6. The prior consideration of constitutionality provided for in paragraph (4) must be requested within a time limit of eight days counting from the date provided for in paragraph (5).
  7. Without prejudice to the provisions of paragraph (1), the President of the Republic may not enact the decrees referred to in paragraph (4) unless eight days have passed since their receipt, or, when the Constitutional Court has been asked to intervene, until it has pronounced itself on them.
  8. The Constitutional Court must pronounce within a time limit of twenty-five days, which the President of the Republic may reduce for urgent reasons in the case provided for in paragraph (1).

Article 279

(Effects of decision)

  1. If the Constitutional Court pronounces the unconstitutionality of a norm contained in any decree or international treaty, the President of the Republic or the Representative of the Republic, as appropriate, must veto the legislative act and return it to the entity or organ that passed it.
  2. In the case provided for in paragraph (1), the decree may not be enacted or signed unless the entity or organ that passed it expunges the norm that has been held unconstitutional, or, where applicable, the entity or organ confirms the norm by a majority that is at least equal to two thirds of all Members who are present and is greater than an absolute majority of all the Members in full exercise of their office.
  3. If the legislative act is reformulated, the President of the Republic or the Representative of the Republic, as appropriate, may request the prior review of the constitutionality of any of the norms in the reformulated text.
  4. If the Constitutional Court pronounces the unconstitutionality of any norm contained in a treaty, the latter may only be ratified if the Assembly of the Republic then approves it by a majority that is at least equal to two thirds of all Members present and greater than an absolute majority of all the Members in full exercise of their office.

Article 280

(Concrete review of constitutionality and legality)

  1. Appeal may be made to the Constitutional Court against court decisions:
    • a) That refuse the application of any norm on the grounds of its unconstitutionality;
    • b) That apply a norm whose unconstitutionality has been raised during the proceedings.
  2. Appeal may also be made to the Constitutional Court against court decisions:
    • a) That refuse the application of a norm contained in a legislative act, on the grounds that it is illegal because it is in breach of a law which possesses superior legal force;
    • b) That refuse the application of a norm contained in a regional legislative act, on the grounds that it is illegal because it is in breach of the autonomous region's statute;
    • c) That refuse the application of a norm contained in a legislative act issued by an entity that exercises sovereignty, on the grounds that it is illegal because it is in breach of an autonomous region's statute;
    • d) That apply any norm whose illegality on any of the grounds referred to in subparagraphs (a), (b) and (c) has been raised during the proceedings.
  3. When the norm whose application has been refused is contained in an international convention, a legislative act or a regulatory decree, the Public Prosecutors' Office shall obligatorily lodge the appeal provided for in paragraph (1)(a) or 2(a).
  4. The appeals provided for in paragraphs (1)(b) and (2)(d) may only be lodged by the party that raised the question of unconstitutionality or illegality, and the law must regulate the regime governing the admission of such appeals.
  5. Appeal may also be made to the Constitutional Court, and the Public Prosecutors' Office shall obligatorily lodge such appeals, against court decisions that apply norms which the Constitutional Court itself has previously held unconstitutional or illegal.
  6. Appeals to the Constitutional Court are restricted to the question of unconstitutionality or illegality, as appropriate.

Article 281

(Abstract review of constitutionality and legality)

  1. The Constitutional Court may consider and declare with generally binding force:
    • a) The unconstitutionality of any norm;
    • b) The illegality of any norms contained in a legislative act, on the grounds of the breach of a law with superior legal force;
    • c) The illegality of any norms contained in a regional legislative act, on the grounds of the breach of the autonomous region's statute;
    • d) The illegality of any norms contained in a legislative act issued by an entity that exercises sovereignty, on the grounds of a breach of those of an autonomous region's rights that are enshrined in its statute.
  2. The following may ask the Constitutional Court for a declaration of unconstitutionality or illegality with generally binding force:
    • a) The President of the Republic;
    • b) The President of the Assembly of the Republic;
    • c) The Prime Minister;
    • d) The Ombudsman;
    • e) The Attorney General;
    • f) One tenth of the Members of the Assembly of the Republic;
    • g) When the grounds for the request for a declaration of unconstitutionality are the breach of the rights of the autonomous regions, or the grounds for the request for a declaration of illegality are the breach of the respective statute, Representatives of the Republic, Legislative Assemblies of the autonomous regions, presidents of Legislative Assemblies of the autonomous regions, presidents of Regional Governments, or one tenth of the members of the respective Legislative Assembly.
  3. The Constitutional Court may also consider and declare with generally binding force the unconstitutionality or illegality of any norm, on condition that it has already held the norm unconstitutional or illegal in three concrete cases.

Article 282

(Effects of declarations of unconstitutionality or illegality)

  1. A declaration of unconstitutionality or illegality with generally binding force has effect as of the moment at which the norm declared unconstitutional or illegal came into force, and causes the revalidation of any norms that the said norm repealed.
  2. However, in the case of unconstitutionality or illegality due to breach of a subsequent constitutional or legal norm, the declaration only has effect as of the moment at which the latter came into force.
  3. Res judicata are excepted, save when the Constitutional Court decides to the contrary in relation to a norm that concerns penal or disciplinary matters or administrative offences and whose contents are less favourable to the accused person.
  4. When required for the purposes of legal security, reasons of fairness or an exceptionally important public interest, the grounds for which must be given, the Constitutional Court may determine a scope for the effects of the unconstitutionality or illegality that is more restricted than that provided for in paragraphs (1) and (2).

Article 283

(Unconstitutionality by omission)

  1. At the request of the President of the Republic, the Ombudsman, or, on the grounds of the breach of rights of the autonomous regions, presidents of the Legislative Assemblies of autonomous regions, the Constitutional Court shall consider and verify whether there is a failure to comply with the Constitution due to the omission of legislative measures needed to make constitutional norms executable.
  2. When the Constitutional Court verifies that an unconstitutionality by omission exists, it shall notify the competent legislative entity thereof.

TITLE II

Revision of the Constitution

Article 284

(Competence and time for revisions)

  1. The Assembly of the Republic may revise the Constitution five years after the date of publication of the last ordinary revision law.
  2. However, by a majority of at least four fifths of all the Members in full exercise of their office, the Assembly of the Republic may take extraordinary revision powers at any time.

Article 285

(Initiating revisions)

  1. The competence to initiate revisions pertains to Members of the Assembly of the Republic.
  2. Once a draft revision of the Constitution has been submitted, any others have to be submitted within a time limit of thirty days.

Article 286

(Passage and enactment)

  1. Amendments to the Constitution require passage by a majority of two thirds of the Members of the Assembly of the Republic in full exercise of their office.
  2. Amendments to the Constitution that are passed shall be combined in a single revision law.
  3. The President of the Republic may not refuse to enact the revision law.

Article 287

(New text of the Constitution)

  1. Amendments to the Constitution shall be inserted in the proper place by means of the necessary replacements, eliminations and additions.
  2. The new text of the Constitution shall be published along with the revision law.

Article 288

(Material limits on revision)

Constitutional revision laws must respect:

  • a) National independence and the unity of the state;
  • b) The republican form of government;
  • c) The separation between church and state;
  • d) Citizens' rights, freedoms and guarantees;
  • e) The rights of workers, workers' committees and trade unions;
  • f) The coexistence of the public, private and cooperative and social sectors of ownership of the means of production;
  • g) The existence of economic plans, within the framework of a mixed economy;
  • h) The appointment of the elected officeholders of the entities that exercise sovereignty, of the organs of the autonomous regions and of local government organs by universal, direct, secret and periodic suffrage; and the proportional representation system;
  • i) Plural expression and political organisation, including political parties, and the right of democratic opposition;
  • j) The separation and interdependence of the entities that exercise sovereignty;
  • l) The subjection of legal norms to review of their positive constitutionality and of their unconstitutionality by omission;
  • m) The independence of the courts;
  • n) The autonomy of local authorities;
  • o) The political and administrative autonomy of the Azores and Madeira archipelagos.

Article 289

(Circumstances in which revision is restricted)

No act involving the revision of the Constitution may be undertaken during a state of siege or a state of emergency.

Final and transitional provisions

Article 290

(Previous law)

  1. Without prejudice to the provisions of the following paragraph, constitutional laws that postdate 25 April 1974 and are not excepted in this chapter are considered ordinary laws.
  2. The ordinary law prior to the entry into force of the Constitution is maintained on condition that it is not contrary to the Constitution or the principles enshrined therein.

Article 291

(Districts)

  1. For as long as the administrative regions are not instituted de facto, the areas that they do not yet cover shall continue to be divided into districts.
  2. In each district there shall be a decision-making assembly composed of representatives from its municipalities, under terms to be laid down by law.
  3. With the assistance of a council, the civil governor has the competence to represent the Government and exercise the powers of oversight in the area of each district.

Article 292

(Criminalisation and trial of PIDE/DGS agents and officials)

  1. Law no. 8/75 of 25 July 1975, as amended by Law no. 16/75 of 23 December 1975 and by Law no. 18/75 of 26 December 1975, remains in force.
  2. The law may specify the types of crime set out in Articles 2(2), 3, 4(b) and 5 of the legislative act referred to in the previous paragraph.
  3. The law may especially regulate the extraordinary extenuating circumstances provided for in Article 7 of the same legislative act.

Article 293

(Reprivatisation of property nationalised after 25 April l974)

  1. A framework law passed by an absolute majority of all the Members of the Assembly of the Republic in full exercise of their office shall regulate reprivatisations of the ownership of, or the right to use, means of production and other property nationalised after 25 April 1974, in compliance with the following fundamental principles:
    • a) As a rule, reprivatisations of the ownership of, or of the right to use, means of production and other property nationalised after 25 April 1974 shall preferentially be conducted by competitive public tender, offer on the stock exchange, or public subscription;
    • b) The revenue obtained from reprivatisations shall be used solely to redeem the public debt and the debts of the state's business sector, to service the debt resulting from nationalisations, or for new capital investment in the productive sector;
    • c) The workers of enterprises that are the object of reprivatisation shall retain all their pre-existing rights and obligations in the process of the reprivatisation of the respective enterprise;
    • d) The workers of enterprises that are the object of reprivatisation shall acquire the right to the preferential subscription of a percentage of the respective share capital;
    • e) The means of production and other property that are to be reprivatised shall be the object of prior valuation by more than one independent entity.
  2. Small and medium-sized enterprises that have been indirectly nationalised and are situated outside the basic sectors of the economy may be reprivatised as laid down by law.

Article 294

(Regime applicable to local authority organs)

Until the law provided for in Article 239(3) enters into force, local authority organs shall be formed and operate in accordance with the legislation that corresponds to the text of the Constitution as revised by Constitutional Law no. 1/92 of 25 November 1992.

Article 295

(Referenda on European treaties)

The provisions of Article 115(3) do not prejudice the possibility of calling and holding referenda on the approval of treaties concerning the construction and deepening of the European Union.

Article 296

(Date and entry into force of the Constitution)

  1. The Constitution of the Portuguese Republic bears the date of its passage by the Constituent Assembly: 2 April 1976.
  2. The Constitution of the Portuguese Republic enters into force on 25 April 1976.

Fonte: www.parlamento.pt