Portugal

III - Changes to Constitutional Law

Nature national instruments  
III.1
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

The measures implementing the guidelines of the Memorandum of Understanding assume, in their majority, the shape of ordinary legislation. In what concerns the measures implementing the Six-Pack, however, they have been mostly enshrined in the recently altered framework budget law, hence gaining the statute of law of enhanced value.

Constitutional amendment          
III.2    
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

According to articles 159 and 285 of the Constitution only members of parliament can present amendments.

 

In June 2014, Members of Parliament from PPD/PSD Madeira presented a proposal for Constitutional amendments. In July 2014 Members of Parliament of CDS/PP Madeira presented a proposal too.

 

Proposed amendments include the extinction of the Constitutional Court (turning it into a specialised section of the Supreme Court of Justice), the extinction of the figure of the Portuguese Republic’s Representative, introduced by the constitutional amendment of 2004, the extinction of the National Electoral Commission, as well as the Regulatory Authority for Media and Communications, extension of the mandate of the President of the Republic to ten years (currently 5 years), the independency of the fiscal and financial system, the creation of regional parties and reduction of the number of members of the Parliament, amongst others.

 

Parliament has created a commission to analyse and discuss the proposed amendments in late September 2014. The Commission will work for 90 days. It is composed by 23 Members of Parliament: 11 MP from PPD/PSD, 7 PS, 2 CDS/PP, 1 Communist Party (PC), 1 Left Bloc (BE) and 1 Ecologist Party (PEV).

 

These amendments do not seem to have been proposed as a reaction to the Euro-crisis. Neither PPD/PSD nor CDS/PP have expressed support to neither of the projects. After several failed attempts to create momentum towards a Constitutional revision this particular project will not allow for a deep reform as envisaged by Passos Coelho (see question X.1).

 

According to the Portuguese Constitution the Parliament can amend the Constitution only every five years counting from the date of publication of the last ordinary reform.[1] Before the 5 years term any changes must take place under the auspices of an extraordinary amendment, which requires 4/5 of the MP to vote positively for its approval.

Constitutional context   
III.3
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

Art. 105º/4 of the Portuguese Constitution already enshrines a ‘balanced budget’ rule. It is the most important budgetary rule in terms of substance, both for planning purposes and for purposes of enforcing financial control of the Central Administration. It is nevertheless a substantive – rather than formal – balance budget rule. It means that, in abstract, the planning and implementation of public financial management, the predicted and effective costs must be covered by the predicted and effective revenue provided for in the Budget. This rule was present already in the first version of the Constitution, in 1976.

 

Moreover, article 167º/2 of the Constitution enshrines, for the purposes of budgetary stability and balance, a ‘break-rule’: MPs, parliamentary groups, the Legislative Assemblies of the autonomous regions and groups of voters may not submit legislative proposals which would involve, in the current financial year in question, increased spending or reduced revenues, as opposed to the ones provided in the Budget. This rule was introduced during the fourth constitutional amendment, in 1997.

The Government did push for a constitutional amendment that would enshrine the “golden-rule” in the Constitution rather than an alteration to the LOE. However, PS made it clear that it would never support it. On the implementation of the Fiscal Compact vis-à-vis article Art. 105º/4 of the Portuguese Constitution see question VII.6.

 

Purpose constitutional amendment      
III.4
What is the purpose of the constitutional amendment and what is its position in the constitution?

See question III.2.

Relationship with EU law           
III.5
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

See question III.2.

Organic law      
III.6
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

See question VII.6. Shortly before the agreements on the Six-Pack, Portugal had made a change to the law (LEO) establishing the framework for the budgetary procedure (Law 22/2011, 20th May). There were further changes to the LEO, still in 2011 (Law 52/2011, 13th October, and Law 64-C/2011, 30th December. Due to the intense controversy raised by the ‘golden-rule’, its introduction was postponed until the beginning of 2013. The government’s intention was to inscribe the so-called ‘golden-rule’ directly in the Constitution, so that its amendment would also require a qualified majority; however, it was enshrined instead in the amendment to the law establishing the framework for the budgetary procedure. This Framework law is one of enhanced value, according to article 112º/3 of the Constitution.

Constitutional amendment and ordinary law    
III.7
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

There was no ordinary legislation adopted in conjunction with a constitutional amendment.

Perception source of legal change          
III.8
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

Between 2011-2013, ordinary law instruments discussed and approved were seen, in their great majority, as mere consequences of the obligations resulting from the MoU and therefore “Euro-crisis” law.

Parliamentary debates on ordinary legislation are noticeable about MPs interpretation of the MoU. The elimination of golden shares[2], labour law reviews,[3] cancelling intercity railway investments,[4] these were among the very first measures to be discussed right after elections in 2011. However, hundreds of parliamentary debates on approval and alterations of ordinary legislation followed and they all either invoked – as a legal basis -, or discussed – as if to clarify -, the terms in which the MoU bound Portugal to alter its laws. Discussions were heated. The MoU was often referred to as “pact of aggression” by lef-wing party PCP.[5] PS, the opposition party with biggest representation in the parliament, rarely agreed on austerity measures.

 

The Constitutional Court became, since 2011, the centre of public attention (including of the media) having been awarded “national figure of the year” in 2013 by Newspaper “Expresso”. Its decisions have been broadly discussed by the Prime Minister, members of government, opposition parties, economists and the general public. Open criticism by the government has been labelled as defiant of separation of powers.[6]To its rulings have been attributed macroeconomic effects and fiscal alterations – especially the ones on Budget Law. It has deeply influenced the relations between Portugal and the troika. “Idolized and hated” it created Crisis-Jurisprudence, with its rulings sometimes pointing even to alternative political solutions.[7] It created a movement pro and against the Court and ignited passionate discussions on the Constitution amongst scholars in the public sphere.[8]

 

In terms of public opinion, it is quite clear that the changes in legislation are perceived as direct consequence of the Troika’s “intervention” (on related public demonstrations see question X.7).[9]

 

Miscellaneous
III.9
What other information is relevant with regard to Portugal and to changes to national (constitutional) law?

No other relevant information.

[1] The last reform was in 2005. See: http://www.tribunalconstitucional.pt/tc/crp-revisoes.html

[2] Parliamentary debate 3 August 2011, available at http://debates.parlamento.pt/page.aspx?cid=r3.dar&diary=s1l12sl1n11-0066&type=texto&q=troika&sm=p.

[3] Parliamentary debate 31 August, 2011, available at http://debates.parlamento.pt/page.aspx?cid=r3.dar&diary=s1l12sl1n13-0056&type=texto&q=troika&sm=p

[4] Parliamentary debate 9 September, 2011, available at http://debates.parlamento.pt/page.aspx?cid=r3.dar&diary=s1l12sl1n17-0057&type=texto&q=troika&sm=p.

[5] As an example Parliamentary debate 8 March 2012, available at http://debates.parlamento.pt/page.aspx?cid=r3.dar&diary=s1l12sl1n82-0046&type=texto&q=troika&sm=p.

[6] Jorge Reis Novais, “Em defesa do Tribunal Constitucional, Resposta aos críticos”, Almedina, 2014, page 7-17.

[7] Alexandre Sousa Pinheiro, “Jurisprudência de Crise: Tribunal Constitucional (2011-2013) in Observatório

[8] For a view on the clash over the Constitutional Court rulings “O Tribunal Constitucional e a Crise, Ensaios críticos”, Almedina, 2014 and “Em defesa do Tribunal Constitucional, Resposta aos críticos”, Jorge Reis Novais, Almedina, 2014.

[9] http://debates.parlamento.pt/page.aspx?cid=r3.dar&diary=s1l12sl1n66-0008&type=texto&q=troika&sm=p