Portugal 1976 Constitution (reviewed 2005)

Part IV. Guaranteeing and revision of the Constitution

Title I. Review of constitutionality

Article 277. Positive unconstitutionality

1. Rules that contravene any of the provisions of this Constitution or the principles enshrined therein shall be unconstitutional.
2. On condition that the rules laid down by properly ratified international treaties are applied in the legal system of the other party thereto, the unconstitutionality in form or substance of such rules shall not prevent their application in the Portuguese legal system, save if such unconstitutionality results from the breach of a fundamental provision of this Constitution.

Article 278. Prior review of constitutionality

1. The President of the Republic may ask the Constitutional Court to conduct a prior review of the constitutionality of any rule laid down by an international treaty that is submitted to him for ratification, by any decree that is sent to him for enactment as a law or executive law, or by any international agreement, the decree passing which is sent to him for signature.
2. Representatives of the Republic may also ask the Constitutional Court to conduct a prior review of the constitutionality of any rule laid down by a regional legislative decree that is sent to them for signature.
3. Prior reviews of constitutionality shall be requested within eight days of reception of the document in question.
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 conduct a prior review of the constitutionality of any rule laid down by any decree that is sent to the President of the Republic for enactment as an organisational law.
5. On the date on which he sends any decree to the President of the Republic for enactment as an organisational law, 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 review of constitutionality provided for in (4) above shall be requested within eight days of the date provided for in (5) above.
7. Without prejudice to the provisions of (1) above, the President of the Republic shall not enact the decrees referred to in (4) above until eight days have passed after their receipt, or, in the event that the Constitutional Court is asked to intervene, until it has pronounced thereon.
8. The Constitutional Court shall pronounce within a period of twenty-five days, which the President of the Republic may reduce in the case of (1) above for reasons of emergency.

Article 279. Effects of ruling

1. If the Constitutional Court pronounces the unconstitutionality of any rule contained in a decree or international treaty, the President of the Republic or the Representative of the Republic, as appropriate, shall veto the statute or treaty and return it to the body that passed it.
2. In the case provided for in (1) above, such a decree shall not be enacted or signed unless the body that passed it expunges the rule that has been deemed unconstitutional, or, where applicable, the said rule is confirmed 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.
3. If the statute or treaty 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 rules in the new version.
4. If the Constitutional Court pronounces the unconstitutionality of any rule contained in a treaty, the said treaty shall only be ratified if the Assembly of the Republic passes 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. Specific review of constitutionality and legality

1. Appeal may be made to the Constitutional Court against court rulings:
   1. That refuse the application of any rule on the grounds of its unconstitutionality;
   2. That apply any rule, the unconstitutionality of which has been raised during the proceedings in question.
2. Appeal may also be made to the Constitutional Court against court rulings:
   1. That refuse the application of any rule contained in legislation on the grounds that it is illegal because it breaches a law which possesses superior force;
   2. That refuse the application of any rule contained in a regional decree on the grounds that it is illegal because it breaches the autonomous region’s statute;
   3. That refuse the application of any rule contained in a decree issued by a body that exercises sovereign power, on the grounds that it is illegal because it breaches an autonomous region’s statute;
   4. That apply any rule, the illegality of which on any of the grounds referred to in subparagraphs a, b and c above has been raised during the proceedings.
3. In the event that the rule, the application of which has been refused, is contained in an international agreement, legislation or a regulatory order, the Public Prosecutors’ Office shall obligatorily appeal as provided for in (1)a or 2(a) above.
4. The appeals provided for in (1)b and 2(d) above shall only be brought by the party that raised the question of unconstitutionality or illegality. The law shall regulate the rules governing the admission of such appeals.
5. Appeal may also be made to the Constitutional Court, and the Public Prosecutors’ Office shall obligatorily bring such an appeal, against court rulings that apply rules which the Constitutional Court had previously deemed unconstitutional or illegal.
6. Appeals to the Constitutional Court shall be restricted to the question of unconstitutionality or illegality, as appropriate.

Article 281. Abstract review of constitutionality and legality

1. The Constitutional Court shall review, and shall declare with generally binding force:
   1. The unconstitutionality or otherwise of any rule;
   2. The illegality of any rule or rules contained in legislation, on the grounds of the breach of any law with superior force;
   3. The illegality of any rule or rules contained in a regional decree, on the grounds of the breach of the autonomous region’s statute;
   4. The illegality of any rule or rules contained in a statute or decree issued by a body that exercises sovereign power, on the grounds of a breach of one or more of an autonomous region’s rights that are enshrined it its statute.
2. The following may ask the Constitutional Court for a declaration of unconstitutionality or illegality with generally binding force:
   1. The President of the Republic;
   2. The President of the Assembly of the Republic;
   3. The Prime Minister;
   4. The Ombudsman;
   5. The Attorney General;
   6. One tenth of the Members of the Assembly of the Republic;
   7. In the event that the request for a declaration of unconstitutionality is based on the breach of the rights of autonomous regions, or the request for a declaration of illegality is based on the breach of their statutes, Representatives of the Republic, Legislative Assemblies of the autonomous regions, presidents of the 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 shall also review, and with generally binding force shall declare, the unconstitutionality or illegality of any rule that the Constitutional Court has already deemed unconstitutional or illegal in three specific cases.

Article 282. Effects of declaration of unconstitutionality or illegality

1. A declaration of unconstitutionality or illegality with generally binding force shall take effect as of the moment at which the rule declared unconstitutional or illegal came into force, and shall cause the revalidation of such rules as the said rule may have revoked.
2. However, in the case of unconstitutionality or illegality due to breach of a subsequent constitutional or legal rule, such declaration shall only take effect when the latter comes into force.
3. Rulings in cases that have already been tried shall stand, save when the Constitutional Court rules to the contrary in relation to rules that concerned penal or disciplinary matters or administrative offences and their contents were less favourable to the defendant.
4. When required for the purposes of legal certainty, reasons of fairness or an exceptionally important public interest, the grounds for which shall be given, the Constitutional Court may rule that the scope of the effects of the unconstitutionality or illegality shall be more restricted than those provided for in (1) and (2) above.

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 one or more rights of the autonomous regions, presidents of Legislative Assemblies of the autonomous regions, the Constitutional Court shall review and verify any failure to comply with this Constitution by means of the omission of legislative measures needed to make constitutional rules executable.
2. Whenever the Constitutional Court determines that unconstitutionality by omission exists, it shall notify competent legislative body thereof.

Title II. Revision of the Constitution

Article 284. Responsibility 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 four-fifths majority 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. Power to initiate revisions

1. Members shall possess the power to initiate revisions.
2. Once a draft revision of the Constitution has been submitted, any others shall be submitted within thirty days.

Article 286. Passage and enactment

1. Alterations to the Constitution shall require passage by a two-thirds majority of all the Members in full exercise of their office.
2. Such alterations to the Constitution as are passed shall be collected together in a single revision law.
3. The President of the Republic shall not refuse to enact such laws.

Article 287. New text of the Constitution

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

Article 288. Matters in which revision shall be restricted

Constitutional revision laws shall respect:

1. National independence and the unity of the state;
2. The republican form of government;
3. The separation between church and state;
4. Citizens’ rights, freedoms and guarantees;
5. The rights of workers, workers’ committees and trade unions;
6. The coexistence of the public, private and cooperative and social sectors in relation to the ownership of the means of production;
7. The requirement for economic plans, which shall exist within the framework of a mixed economy;
8. The elected appointment of the officeholders of the bodies that exercise sovereign power, of the bodies of the autonomous regions and of local government bodies by universal, direct, secret and periodic suffrage; and the proportional representation system;
9. Plural expression and political organisation, including political parties, and the right to democratic opposition;
10. The separation and interdependence of the bodies that exercise sovereign power;
11. The subjection of legal rules to a review of their positive constitutionality and of their unconstitutionality by omission;
12. The independence of the courts;
13. The autonomy of local authorities;
14. The political and administrative autonomy of the Azores and Madeira archipelagos.

Article 289. Circumstances in which revision shall be restricted

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