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Direito Constitucional

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Marta Vicente

on 30 August 2013

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Transcript of Direito Constitucional

System of government
Portuguese Constitutional Law
Content
Direito Constitucional Português
Main features

Basic principles

Fundamental rights
Power to enact laws

Portugal is:

A sovereign republic
A state grounded on human dignity
An unitary state, which respects local and regional autonomy
A democratic state based on the rule of law
A state engaged in deepening european identity
The portuguese constitution
("Constituição da República Portuguesa") - 1976

Who has the power to enact legislative acts?

The portuguese parliament ("Assembleia da República") - Law ("lei")
The portuguese government ("Governo") - decree-law ("decreto-lei")
The regional parliaments (Açores/Madeira) - regional decree-law ("decretos legislativos regionais")
Article 112.º/1
About what matters?
Parliament's exclusive competence
Concurrent competence
Government's exclusive competence
Exclusive legislative competence (article 164.º) "Reserva absoluta"
Partially exclusive legislative competence (article 165.º) - "Reserva relativa"
Self-organization (article 198.º/3)
Regional parliaments
They can enact laws on the subjects listed on their politic statutes - article 227.º/1/a
Law that grants authorisation ("lei de autorização") - Parliament
Authorized decree-law ("decreto-lei autorizado") - Government
Portugal has two autonomous regions ("regiões autónomas"):
Açores and Madeira
Each region has its own political statute.
The political statute works as a regional constitution (article 228.º)
It is a law presented by the regional parliaments and approved by the portuguese parliament (articles 226º, 227.º).
It prevails over any other law.
According to the Constitution, both regions have normative and legislative powers.

Note


Since 1976, regional autonomy has been growing, although Açores and Madeira remain highly dependent on national budget.

There are several differences between portuguese autonomous regions and Macao Special Administrative Region.
Principle of local government autonomy (article 6.º)
("Princípio da autonomia local")
Principle of regional autonomy (article 6.º)
("Princípio da autonomia regional")
The rule of law ("princípio do Estado de direito")
Democratic principle ("princípio democrático")
Principle of social justice ("princípio da socialidade")



The rule of law
Principle of constitutionality
Principle of equality (article 13.º)
Principle of security and legal certainty
Principle of proportionality
The constitution is the paramount law of the state
Article 3.º: "The validity of laws and other acts of the state, the autonomous regions, local government and any other public entities

is dependent on their conformity with the Constitution
."
This is similar to article 11.º of the Basic law of Macau, which states that: "No law, decree, administrative regulations and normative acts of the Macao Special Administrative Region
shall contravene this Law
."
What does this mean?
It means that Portugal is a state under the law and the constitution, a statement which historically requires three basic ideas:

Administrative legality

(articles 112.º, 266.º/2): the executive power/administration is subject to the law (1), and all administrative activity (norms, acts or agreements) must be authorized by law (2).
Separation of powers
(article 111.º)
Independence of judicial power

(article 203.º)
State activity must be
predictable.
Normative acts shall not have
retroactive effects.
The portuguese constitution
explicitly prevents

retroactive norms in three matters: limitation of civil and political rights (article 18.º/3), criminal law (article 29.º/1) and tax law (article 103.º/3).
The basic law of Macao also prevents retroactive norms in criminal law (article 29.º)
Partially exclusive reserve - for example, taxes, rights/freedoms/ guarantees and crimes
According to the portuguese constitutional court, a distinction must be drawn between:

Authentic retroactive norms
Inauthentic retroactive norms

Only the first type is explicitly prevented in the portuguese constitution.

In general (apart from these three fields), the portuguese constitution does not prevent retroactive norms. However, these will be unconstitutional if:

They harm citizen' s legitimate expectations;
and
The public interest behind the norm does not justify the harm caused to those expectations.
State activity must be
reasonable.
A state measure will be proportional provided it observes three dimensions: adequacy, necessity and proportionality in the strict sense.
These three dimensions work as three successively more demanding tests.
Portuguese Constitution recognizes two types of fundamental rights: rights, freedoms and guarantees (1) and social rights (2).
Fundamental rights ("direitos fundamentais")

Rights, freedoms and guarantees ("direitos, liberdades e garantias") - articles 24.º to 57.º

Social rights ("direitos económicos, sociais e culturais") - articles 58.º to 79.º

Hybrid system of government (both
parliamentary
and
presidential
)

Four sovereign organs ("órgãos de soberania"):
the President
(Presidente da República),
the portuguese Parliament
(Assembleia da República),the
government
(Governo),
and the courts
(tribunais).
Adequacy ("princípio da adequação")
Necessity ("princípio da necessidade")
Proportionality in the strict sense ("princípio da proporcionalidade em sentido estrito")
The constitution recognizes that there are more fundamental rights than those explicitly mentioned in the constitution (article 16.º).
Article 16.º/1

The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal
rules.
What is the
local government
?

There are three types of local entities (
"autarquias locais"
) enshrined in the Constitution (article 235.º): parishes ("freguesias"), municipalities (
"municípios"
) and administrative regions (
"regiões administrativas"
).

The local entities are territorial legal persons that benefit from both
self-organization
and
self-government.

They have
normative
and
financial
autonomy (articles 238.º, 241.º)


Equality of opportunities
State must take measures in order to promote social justice and to correct inequalities.
For example, to grant scholarships to economically disfavored students
No discrimination principle
(article 13.º/2)

No one may be privileged, favored, prejudiced, deprived of any right or exempted from any duty for
reasons of
ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs,
education, economic situation, social circumstances or sexual orientation
.
No arbitrary treatment principle
Differences of treatment are allowed provided that:
There is an objective difference between the situations.
The differences of treatment have a serious justification.
The differences of treatment have a legitimate intent.
The portuguese constitutional court, in its decision n.º 509/02, has recognized "a (fundamental) right to a decent minimum income".
Before 2002, there was a instrument called "minimum income", an amount of money payed by the state to which all people with very low income were entitled since the age of 18. Then, in 2002, the legislator decided to rename this instrument ("social integration income") and stated that only people older than 25 years could benefit from it.
The Portuguese Constitutional Court has found the norm to be unconstitutional, on the grounds that it violated the right to a decent minimum income inherent in the
principle of respect for human dignity.
Questions:

Is the portuguese government entitled to create a new tax or a new type of crime?
What matters can be labeled of "concurrent competence"?
Exercises:

Can the portuguese legislator, in 2013, increase the rate of 2012 income tax?

Can the portuguese legislator, in 2013, increase the rate of 2013 income tax?

Until 2012, the students-workers who wanted to go to college didn't have to do all final exams. They just had to do the exam required by the college they wanted to attend. Then, in February 2012, when the school year had already begun, the legislator stated that, in order to go to college, students-workers must do the same exams as non-working students. Do you think this norm violates the principle of legal certainty?

Exercises:

Imagine that the portuguese parliament enacts a law stating that no muslim burqas are allowed in sport classes of public schools, although other religious symbols (crucifixes, veils) are not prevented.

Imagine that the portuguese parliament enacts a law stating that the mandatory retirement age for women would be 65 years and for men 60 years. The reason for this difference of treatment is grounded on the average life expectancy, which is actually lower for men.

Analyze these laws regarding the principle of equality.
Estado de direito
Federal
Autonomia Local
Vida digna
Necessidade
Constituição
Proibição do Arbítrio
Retroactividade
Crime
Igualdade de oportunidades
razoável
Regiões autónomas
direitos fundamentais
República
Governo
tribunais
autonomia regional
poder legislativo
freguesias
1976
Socialidade
discriminação
órgão de soberania
razoável
unitário
forma de governo
autarquias locais
independência
impostos
democracia
regra da maioria
municípios
Parlamento
Parlamento regional
decretos-leis
decretos-leis autorizados
Tribunal Constitucional
Constitucionalidade
Administração
Lei de autorização
direitos/liberdades/garantias

Full transcript