SILESIAN JOURNAL OF LEGAL STUDIES
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SILESIAN JOURNAL OF LEGAL STUDIES
CONTENTS VOL. 7
Foreword by Barbara Mikołajczyk
Wydawnictwo Uniwersytetu Śląskiego Katowice 2015
Editor of the “Law Series”
Andrzej Matan
Reviewers
Andrzej BISZTYGA, Adam CZARNOTA, Michael HEIN,
Ireneusz C. KAMIŃSKI, Michał KOWALSKI, Monika NAMYSŁOWSKA, Łukasz PISARCZYK, Jerzy PISULIŃSKI, Jerzy SUPERNAT,
Krzysztof WÓJTOWICZ, Mieczysława ZDANOWICZ
Ia. Scientific Board:
Marek BOJARSKI (University of Wroclaw), Paulo Ferreira da CUNHA (Universidade do Porto, Portugal), Adam CZARNOTA (Oñati International Institute
for the Sociology of Law, Spain, Universidad del País Vasco, San Sebastian, Spain, University of Bialystok), Javier LETE (University in Santiago de Compostella, Spain),
Cornelius G. van der MERWE (Stellenbosch University,
Republic of South Africa), Cezary MIK (Cardinal Stefan Wyszynski University), Andrea OLSOVSKA (University in Trnava, Slovakia),
Ryszard PIOTROWICZ (University of Aberystwyth, Wales),
Naděžda ROZEHNALOVÁ (Masaryk University Brno, the Czech Republic), Leon CHEŁMICKI-TYSZKIEWICZ (Higher School of Labour Safety Management
in Katowice), Maria ZABŁOCKA (University of Warsaw)
Ib. Members from University of Silesia:
Bogdan DOLNICKI, Anna ŁABNO, Wojciech POPIOŁEK, Zygmunt TOBOR, Tadeusz WIDŁA, Marek ZDEBEL
IIa. Editorial committee:
Barbara MIKOŁAJCZYK (Editor-in-chief), Rafał BLICHARZ (Deputy editor-in-chief),
Nick FAULKNER (Linguistic editor), Joanna NOWAKOWSKA-MAŁUSECKA (Secretary)
IIb. Members:
Magdalena HABDAS, Katarzyna POKRYSZKA, Joanna JAGODA, Ilona TOPA
III. The first level review committee:
Piotr GAŁA, Jadwiga GLUMIŃSKA-PAWLIC, Grzegorz ŁASZCZYCA, Ryszard MIKOSZ, Robert NETCZUK, Piotr PINIOR, Ewa ROTT-PIETRZYK,
Anna STAWARSKA-RIPPEL, Urszula TORBUS, Piotr ZAWIEJSKI
The publication is available at:
Central and Eastern European Online Library www.ceeol.com
Śląska Biblioteka Cyfrowa www.sbc.org.pl
TABLE OF CONTENTS
Editorial (B a r b a r a M i k o ł a j c z y k) . . . 7
ARTICLES
J o s é J o ã o A b r a n t e s
Labour Law, Constitution and Crisis – the Portuguese Experience . . . 11 P a u l o F e r r e i r a d a C u n h a
Portuguese Constitutional History. From the Old Iberian Liberties to the
Carnation Revolution . . . 18 J a k u b D o h n a l
Selected Changes in Consumer Credit After the Re-codification of Private Law in the Czech Republic . . . 29
OTHER MATERIALS
STUDY:
I z a b e l l a M a j c h e r
Human Rights Violations During EU Border Surveillance and Return
Operations: Frontex’s Shared Responsibility or Complicity? . . . 45
REPORTS:
The Silesian Conference on Medicine and Law (The conference report, Katowice, Poland) – Report by Agnieszka Bielska-Brodziak, Wojciech Maczuch . . . 81 Law of International Organisations and the Challenges of the Contemporary
World (The conference report, Kroczyce, Poland) – Report by Ilona Topa . . . 84 The Bilateral German-Polish Harmonisation of Private Law in the Integration
of the European Union. Addition or Opposition? (The conference report, Katowice, Poland) – Report by Małgorzata Lubelska-Sazanów, Bartłomiej
Panfil, Małgorzata Pohl, Anita Strzebińczyk . . . 86 The Programme in European Private Law for Postgraduates – PEPP
(The programme report, Katowice, Poland) – Report by Małgorzata
Lubelska-Sazanów, Bartłomiej Panfil, Małgorzata Pohl, Anita Strzebińczyk . . . . 90
* * *
List of selected books published by the researchers of the Faculty of Law and
Administration of the University of Silesia in 2014 . . . 93 List of conferences organised at the Faculty of Law and Administration of the
University of Silesia in 2014 . . . 95
EDITORIAL
Welcome already to the seventh issue of the Silesian Journal of Legal Studies (SJLS).
In this volume we continue our legal discourse over geographical and legal borders.
We present texts submitted by authors from Switzerland, the Czech Republic and – as usual – from Portugal.
The texts of the Portuguese professors, José João Abrantes and Paulo Ferreira da Cunha, are dedicated to issues balancing labour law and constitutional law and histo- ry. José João Abrantes from Universidade Nova de Lisboa has written an article refer- ring to the contemporary and sensitive problem of the economic crisis in Europe that has resulted in great changes in Portuguese legislative policy, providing “flexibi lity” in labour law. Paulo Ferreira da Cunha from Porto University analyses the Portuguese road to democracy.
We also present an interesting text dedicated to consumer credit contracts after the re-codification of private law in the Czech legal order. Its author, Jakub Dohnal, repre- senting the Faculty of Law of Palacký University in Olomouc, explores this issue, which seems to be very useful for anyone involved in the practical implementation of the idea of the free movement of goods, capital and persons across borders.
Finally, I would like to recommend a comprehensive study on Frontex’s responsi- bility for human rights violations. This profound essay has been drawn up by Izabella Majcher from the Graduate Institute of International and Development Studies, Gene- va Global Detention Project.
This issue also contains reports on selected conferences and seminars that were or- ganised at our Faculty. Taking into account the main idea of our Journal – the legal dis- course over borders – the report on the Programme in European Private Law for Post- graduates (PEPP) should draw the reader’s attention. In 2014/2015, PEPP is celebrating its fifth edition. The Programme is a scholarship programme for doctorate students and consists of four intense weeks of lectures and workshops, spread out over one year and held in various universities and institutes. Its fourth edition embraced the University of Münster (the coordinator), the Bucerius Law School in Hamburg, the Max Planck Institute for Comparative and International Private Law (MPI) in Hamburg, the Uni- versity of Silesia in Katowice, the University of Wroclaw, the University of Cambridge, the University of Leuven, the University of Valencia, and the University of Genoa.
As in previous issues, in this issue of SJLS we continue to present a list of selected monographs published in 2014 by the researchers from our Faculty of Law and Ad- ministration, as well as a list of conferences organised or co-organised by the Facul- ty and our foundation Facultas Iuridica. It should be stressed that our legal discourse over borders is possible, as in previous years, thanks to Facultas Iuridica, which covers most of the publishing costs of the journal.
* * *
The texts contained in SJLS No. 7 tackle various constitutional, international and civil issues. They may be useful not only for researchers but also for practitioners, students as well as for NGOs. We believe that we will also cater to this broad spectrum of rea- ders in subsequent issues. Therefore, we invite you to read our journal and we warm- ly welcome researchers from Polish and foreign universities to submit their contribu- tions (find us at: www.sjls.us.edu.pl).
Barbara Mikołajczyk
ARTICLES
J o s é J o ã o A b r a n t e s
Faculty of Law of Universidade Nova de Lisboa (Lisbon, Portugal)
LABOUR LAW, CONSTITUTION AND CRISIS – THE PORTUGUESE EXPERIENCE
11. In recent decades, Portugal and many other countries have experienced great chan- ges in legislative policy, in what has been referred to as the “flexibility” of labour legisla- tion. This has led to a situation where concern should no longer be about employment security, but rather about employment itself. The changes are essentially aimed at en- suring the flexibility and reduction of labour costs – if necessary at the expense of the stability of employment relationships and workers’ rights.
These assumptions, giving expression to the general idea of converting this branch of law into a mere formalisation of the laws of the market, have today become a temp- tation of employment policies and have influenced institutions such as the European Commission, the OECD and the World Bank.2
What is sustained is a model of flexibility identified with the compression of labour costs and of workers’ rights – with employees consequently being forced into preca- rious contracts, increased working hours, greater adaptability, etc.
Obviously these ideas, invoking the rigidity of labour legislation that would hinder the adaptation of enterprises to economic cycles and would create unnecessary obsta- cles to business and social innovation and so to economic growth,3 fail to take into ac- count various serious and rigorous studies, some of which were even produced within those organisations themselves, which demonstrate that there is no direct link between labour flexibility and the promotion of employment.
2. As an example of the great changes in legislative policies regarding labour in re- cent years, we can see what happened in Portugal.
The very difficult economic and financial atmosphere that Portugal has been expe- riencing in recent years has brought structural amendments to the Portuguese labour framework. The response that has been given to the economic crisis has favoured the adoption of measures towards labour-market flexibility and the reduction of labour costs.
Such measures increasingly reveal its neo-liberal character, relying on the assumption that the concept of employment with rights is an enemy of economic growth, leaving the country unable to overcome the present economic crisis.
1 Text presented by the author on 24 May 2013 in the NOVA New University of Lisbon Faculty of Law in a Meeting with Public Law Professors of the University of Silesia (Katowice), Faculty of Law and Ad- ministration.
2 Further developments on these flexibility tendencies can be found in M. Rosário Palma Ramalho, Da Autonomia Dogmática do Direito do Trabalho, Coimbra, 2001, 590 ff. and 605 ff., and also Tratado de Di- reito do Trabalho, Coimbra, 2012, I, 70 ff.
3 The evaluation of labour legislation regularly published by certain organisations characterising the Portuguese labour legislation as formally very rigid forget the records of precarious contracts of our coun- try. In fact, there is no such rigidity because, quite simply, the legislation is not enforced.
A further crucial assumption is that, when facing labour legislation and the labour market, the State must be an increasingly neutral player, adrift on the currents of mar- ket laws and as a result no longer playing its role of a defender of justice and mate rial equality.
The obligations assumed within the Memorandum of Understanding concluded in May 2011 between Portugal, the European Commission, the European Central Bank and the International Monetary Fund,4 as well as those undertaken in the Commitment for Employment, Growth and Competitiveness,5 signed in January 2012 between the Govern ment and the majority of the Social Partners with seats on the Economic and Social Council (one of the two trade union confederations and the employers’ associa- tions), represent the beginning of a major set of legal amendments that put those ideas into force, being considered as a stab in the roots of Portuguese labour law.6
In the background of the labour law reform introduced by Law No 23/2012, of 25 June 2012,7 we can find, for example, the ease of hiring and firing mechanisms, and in general the logic of reducing labour costs at the expense of employee rights.8
The major amendments introduced have affected key areas of employment law: the organisation of working time, the supervision of working conditions, the termination of employment contracts on objective grounds and collective labour regulation instru- ments, merely serving to confirm this logic.
For example, concerning the organisation of working times, it is now possible to ne- gotiate the “bank of hours” system directly with the employee (avoiding the former need to negotiate it in the framework of collective bargaining), also making it possible, un- der certain conditions, to impose such a scheme against the employee’s will.9 Anoth- er obvious downgrading of working conditions is clear if one considers that overtime payments were reduced by half, four public holidays were suppressed10 and the up to three days extra annual leave based on attendance criteria was removed from the labour framework.11 In terms of terminating labour contracts based on objective just cause, the
4 The initial version (and the reviews) of the MoU are available at: http://www.portugal.gov.pt/pt/os- ministerios/primeiro-ministro/secretarios-de-estado/secretario-de-estado-adjunto-do-primeiro-minis- tro/documentos-oficiais/memorandos.aspx
5 At: http://www.ces.pt/download/1022/Compromisso_Assinaturas_versao_final_18Jan2012.pdf
6 See, for example, M. Rosário Palma Ramalho, Portuguese labour law and industrial relations during the crisis, Working Paper No 54, ILO (2013), pp. 1–6, available at: http://www.ilo.org/wcmsp5/groups/public/- --ed_dialogue/---dialogue/documents/publication/wcms_232798.pdf.
7 The Portuguese Labour Code was approved by Law No 7/2009 of 12 February, amended by Law No 105/2009 of 14 September, 53/2011 of 14 October, 23/2012 of 25 June, and 47/2012 of 29 August. See www.
dre.pt
8 The explanatory memorandum of this law alone, would justify our attention. In addition to other as- pects, it contains reference to flexicurity, while the law has nothing to do with this concept. The proper operation of this model is based on certain assumptions not applicable to Portugal, with large structural differences for what happens, for example, in Denmark or in the Netherlands.
9 This solution is, in my opinion, of dubious constitutionality in the face of the Portuguese Constitu- tion.
10 The justification for this was that our country has more holidays than most European countries, which is to be demonstrated (note, for example, that Ascension Thursday, Easter Monday, Boxing Day and other holidays are public holidays in some countries and not in Portugal).
11 Which is indeed curious, when, in 2003, this possibility was pointed out as one of the measures to save the productivity and competitiveness of the enterprises.
amendments have led to cheaper and easier dismissals, especially those carried out by the elimination of the work position, where it relieved the need for enterprises to fol- low a specific order of dismissal (the criteria of seniority being replaced by the vague and subjective “relevant and non-discriminatory criteria” to be chosen by the emplo- yer). Accordingly, the enterprises now have greater freedom to choose the employees who will be made redundant.12 Last but by no means least, the recent amendments have weakened the enforceability and strength of collective bargaining agreements.
A whole further set of examples13 could have been given.
The labour reform revealed that, with the alleged aim of fighting the economic cri- sis, the Government has pursued a certain model of flexibility of the labour market that compresses employees’ rights in order to reduce labour costs. Considering this branch of law as a mere management power, the individual and collective rights of employees have been weakened and the employers’ powers reinforced, leading to easier dismis sals, precarious jobs,14 variable working hours, easier mobility of employees, etc.
The concept of flexibility adopted by the Portuguese Government has brought with it a deterioration of the rights achieved by the employees over the past decades and, consequently, a weakening of their powers with the correspondent strengthening of the powers of employers.15
It is only according to a very particular concept of flexibility that one may sustain that the labour rules, due to their protective nature, are responsible for the weakness of the economy. Only according to such a view is it possible to claim a “new” Labour Law that, in accordance with the liberal perspective, should reinforce the value of the indi- vidual contract and ensure more effectiveness for business management, greater flexi- bility and lower labour costs – even with a decrease in employee guarantees, which are assumed as part of the causes of the current economic crisis, or at least of the difficul- ties in overcoming it.
The truth is that the labour legislation is not responsible for the deficient functio- ning of the economy.
The answer is not in these neo-liberal ideas. The most effective remedy for unem- ployment is economic growth, which requires better education and vocational training, better management of enterprises as well as active employment policies and social pro- tection. It is impossible to have productivity without adequate organisation and mana- gement of the enterprises, without technological progress, training and professional development, not disregarding the importance of the human factor – e.g. the workers’
There is a lot of hypocrisy – and even lies – to justify the introduction of such measures. This is also applicable to the determination of the relevant EU average regarding severance payments (see infra), or when referring that there are countries in Europe in which the 13th and 14th months are not paid, poin- ting as an example the UK, where the wages are paid by week, and not month, etc.
12 Also removed was the obligation to transfer the affected employee to another work position in dis- missals based on the elimination of the work position, as well in those based on unsuitability (dismissals by objective grounds).
As said in the text, the dismissals are also cheaper, above all by the reduction of compensation (seve- rance payments).
13 E.g. the reduction of unemployment benefits.
14 When Portugal already has one of the highest rates of precarious jobs in the EU.
15 In my opinion, the Government is also trying to take advantage of the crisis as an opportunity to com- press social rights and the achievements of workers conquered over the past few decades.
motivation and the respect for their rights, which are essential for the well-being and the dynamism of the enterprises. These are the truly decisive factors for productivity.
3. Labour Law was created to protect the weaker party, assuming an asymmetric re- lation or, in other words, a relationship of power-subjection between the employer and the employee. In fact, based on his economic and social power, the employer is typical- ly in a better position to unilaterally determine the conditions of work. On the other hand, the employee sells his own work and abilities in exchange for a salary, which is normally his only income to support his needs.
The neo-liberal answers in favour of contractual freedom forget the labour law as being this regulatory tool for a relationship where the rights of one party – the emplo- yee – are often threatened by the powers granted to the counterparty – the employer.
The reasoning that led to the appearance of labour law, as well as its social function, is still valid.
In addition, and contrary to what is frequently assumed, labour law can not be held responsible for the current weak financial and economic situation. Labour protectio- nism cannot be pointed out as the major driver for the current weakness of the Portu- guese economy.
The high unemployment rate must be challenged through economic growth, and not with neo-liberal policies that sacrifice and reduce the minimum labour standards for the protection of the employee. Economic growth, in turn, must be pursued along a route marked out by higher levels of both educational and professional training, technologi- cal development and innovation, active employment and wage policies, and, most of all, through the efficient management of companies without disregarding the rights of employees, whose dignity as individuals is expressly recognised in the Constitution.16
4. On the other hand, the economic and financial adjustment programme has not brought any improvements: on the contrary, the unemployment rate and the recession have reached historical levels never before achieved, and the disparity between the richer and the poorer is increasingly accentuated. Two years after the signing the Memoran- dum of Understanding, we are in a worse situation than before, with an economic and social situation that is deteriorating each time more, and unfortunately without a light at the end of the tunnel. The public account deficit is steadily rising, unemployment is also at its highest level and we are witnessing a massive transfer of incomes and power from the have-nots to those who already have a lot, because those who are poorer are supporting the costs of the crisis. The Government is taking the country down this path, even if this violates the Constitution, as is the case in my opinion, considering some of the changes introduced in the Labour Code.
16 See Articles 1 (the dignity of the human person as its basic principle), 9 – d) (fundamental tasks of the State), 53–57, etc.
The Portuguese Constitution («Constituição da República Portuguesa») approved on 2 April 1976 was amended by Constitutional Laws No 1/82 of 30 September, 1/89 of 8 July, 1/92 of 25 November, 1/97 of 20 September, 1/2001 of 12 December, 1/2004 of 24 July, and 1/2005 of 12 August. See www.dre.pt
The evidence that many of the reforms implemented violate the Constitution17 has led to continued efforts by some legal experts to justify the legality of certain amend- ments introduced in the Portuguese Labour Code and even some constitutionalists state that the present situation justifies an adaptation of the constitutional rules by limi ting its protective scope.
The struggle against the deficit in the public accounts is not a legitimate condition to allow a return to non-law, and to disregard the fundamental principles of a democra- tic State of Law and the Fundamental Law, which imposes the reconciliation between the economic and the social, between the freedom of enterprise and the recognition of workers’ rights. Any strategy or response to be given within the present economic cri- sis must necessarily safeguard the respect for the freedom of economic initiative with- out sacrificing the employees’ rights and achievements, duly recognised as a result of their dignity.
The fundamental task of the State in promoting well-being, quality of life and the material equality of citizens, along with the effectiveness of their economic, social and cultural rights [Article 9 – d) of the Constitution] is not compatible with amendments to the labour law that subvert its fundamental principles and values, along with its so- cial function.
Naturally, this does not imply a total refusal of labour reforms, which may be deemed required to challenge legal schemes that are unjustifiably rigid, and which must be en- couraged in order to strengthen the competitiveness of companies. However, the an- swer must not be neo-liberal policies.
5. The crisis currently being experienced in Europe is not only an economic crisis, but also a social one, which clearly places the need for the old continent to design con- crete policies that prevent the impoverishment and correct social inequalities.
The answer to this crisis cannot be marked by a vision that treats work as merchan- dise and understands labour law as a pure management instrument that must be restored to traditional dogmas of private contract law. The answer has to be a different one. It is necessary to change a trend that says that, ultimately, it would be best to have no la- bour law at all, or at least to reduce it to a mere instrument of management; that is an ideology that perceives work as a cost, and which views it only as mere merchandising.
The great challenge to labour law is modernisation, and this implies firstly the repu- diation of the legislative policy of a neo-liberal nature, which, based on the deregula- tion and subversion of the traditional labour relations system, is characterised general- ly by sacrifice, if necessary, of the values that previously guaranteed minimum working conditions.
Faithful solely to the market, neo-liberalism advocates the weakening of the State in their size and purposes, driving labour relations to the abandonment of protectionism and to the return to full autonomy of will and contractual freedom. Such a concept of the human person, of society and of the State ignores the fact that collective freedoms and worker protection status are an integral part of modern democracy, and that the
17 See, for example, A. Monteiro Fernandes, A “reforma laboral” de 2012. Observações em torno da Lei 23/2012, ROA, ano 72, 2012, II/III, p. 555, and J. Gomes, Algumas reflexões sobre as alterações introduzi- das no Código do Trabalho pela Lei n.º 23/2012 de 15 de junho, ROA, ano 72, 2012, II/III, p. 617.
absence of rules on the market always maximises the injustices and the gap between the strongest and the less fortunate.
The truth is that we are faced with a branch of law that still remains true to the assump- tions that were in its genesis, material equality and protection of weaker contractor.18
An efficient response to the present challenges should assume the major goals of im- plementing policies of economic growth, promoting better business management ef- ficiency, better modernisation and technology evolution, and the respect of employee rights. It should not be forgotten that this respect is the way to keep employees motiva- ted, and these mean more efficient work. This is indeed the key word for development.
The protectionist character of this branch of law is still justified because, even today, labour relations are relations in which the liberty of one of the parts can be endangered by the stronger economic and social power of the other. The different po wers of emplo- yer and employee form the basis of traditional labour law, a branch of law that appeared because equality between employer and employee was merely a fiction. As said before, the legal intervention was justified in the field of labour relations given the real possi- bility of employers abusing the powers given by the contractual framework. The impo- sition of limits to the employer’s power led to job security, limitations of working hours, weekly rest and holidays, the guarantee of trade union activity, the right to strike, the right to collective bargaining, social protection, the minimum wage, etc.
On the contrary, the logic of the neo-liberal vision is based on the primacy of the economy over the social. That is why the influence of this thought within the legisla- tive policy is able to bring constitutional offenses on a large scale; in fact, with the neo- liberal orientation, the labour legislation follows a direction that goes in many aspects against the constitutional demands – and also against the proper role of labour law, which is in fact based on the recognition of the economic and social inequality of the parties and on the consistent need to protect the weaker party and intends to counter- act this status, seeking as much as possible a fair balance between the powers granted to the parties. The increasing of contractual freedom and of the autonomy of will gene- rally contradict the natural commitment of labour law.
On the other hand, the way proposed by the neoliberal ideas – sustaining a policy based on social costs compression – is not able to produce good results and will never lead to the greater competitiveness of the economy. The most effective remedy for unem- ployment is economic growth and the decisive factors for that are others, as said before.
To counteract the management needs of enterprises to labour legislation is a false problem. The enterprises cannot think that the lack of competitiveness is due to labour legislation and to workers’ rights. It is a false question to think only in terms of com- petitiveness and productivity, forgetting that there is an ethical dimension in economy that cannot be forgotten, and is, in fact, something absolutely essential and the main factor to be taken into account in the management of enterprises.
The path to the modernisation of labour legislation demands linking social progress to economic growth, by making the conciliation between the rights of the workers and the adaptability of enterprises to the requirements imposed for an ever greater com-
18 Assumptions that more than a century ago were translated so well in the aphorism of Lacordaire “be- tween the weak and the strong is the law that liberates and freedom that oppresses” (H. Lacordaire, Confé- rences de Notre-Dame de Paris, Tome III, 1846, p. 494).
petitiveness. The big challenge facing labour law today is to rediscover what has always been its key question, the social justice.
There are values whose pursuit cannot be entrusted to the market, and the first among these values, the basic principle of any society, is human dignity. This is what, today, as always, should be the focus of labour law: full self-determination of the worker as a per- son and as a citizen. So it continues to make sense today – I would even say that, to- day (at a time when the economic imperatives are questioning many aspects of the tra- ditional labour regime and productivity is often converted into the single criterion to assess the work and its social value) more than ever. As it continues to make sense the fight for a “freer, more just and more fraternal” world, as set out in the preamble to the Portuguese Constitution,19 a fight that has an elective space in the labour area – in line with the protection of the weakest as one of the most relevant functions of the demo- cratic State and with the humanist ideals that proclaim the need for each of us to per- form the solidarity that we owe to other human beings, particularly those who have no voice and who have hunger and thirst for justice.
19 In a certain way, the “Kampf ums Recht”, of Rudolf von Ihering (Frankfurt am Main, 1872).
P a u l o F e r r e i r a d a C u n h a
University of Porto (Portugal) Autonomous Faculty of Law (FADISP), São Paulo (Brazil)
PORTUGUESE CONSTITUTIONAL HISTORY FROM THE OLD IBERIAN LIBERTIES
TO THE CARNATION REVOLUTION
I. CONSTITUTIONALISM BEFORE AND AFTER MONARCHIC LIBERALISM (1143–1910)
Constitutionalism did not begin with the English, the American or the French Revo- lutions.1 If we believe in Lassale’s ideas (which became classical), as exposed in his con- ference on Constitution – Ueber Verfassungswesen2 – every time and place are a stage for the “passionate history of mankind” (as Baumlin qualifies constitutional history).
Constitutionalism, in a broad sense, and Constitution proprio sensu are always near us.
No matter how far the land and how distant the time, a constitution is a must of politics.
It is the juridical statute of politics, so it must always exist, “by nature” or “by definition”…
Being one of the most ancient countries in Europe (with one of the oldest definitions of continental frontiers, at the extreme west of the continent), Portugal has, accor ding to the “historic-universal concept of constitution”, a very long and complex constitu- tional history, from its independence from the kingdom of Leon (not from Spain as some people think, as that country did not even exist at the time), in 1143 (more pre- cisely, 5 October 1143, the date of Zamora’s treaty). Indeed, some historians take the view that Portugal existed even before 5 October 1143, if not as a State then at least as a recognised political community.
It is not easy to cast a glimpse at so many centuries of constitutional texts and con- stitutional realities. Maybe the best way to catch the spirit of the Constitution is to un- derstand the borders of its rationality. And one of the ways to do that would be to see the curious stories that any constitution may create in practice. Not law in the books, but law in action – we might say.
The Portuguese Constitutional History is full of delightful episodes and picturesque adventures. Even without speaking about the seven informal constitutions of the mo- narchy before the liberalism of the 19th century (as Diogo Freitas do Amaral interprets
1 K. Loewenstein, Verfassunslehre, 4th ed., Tuebingen, Mohr Siebeck, 2000, p. 132 et seq.; B. Constant, De la Liberté chez les Modernes, antolog. org. par M. Gauchet, Hachette, Paris 1980; Ch.H. Mc Ilwain, Con- stitutionalism – ancient and modern, revised ed., Ithaca, Cornell Univ. Press, New York 1974. See also our book La Constitution naturelle, Buenos Books International, Paris 2014.
2 F. Lassalle, Über Verfassungswesen : <Http://Www.Gewaltenteilung.De/Lassalle.Htm>
the natural or historical constitution in Portugal3), only this classical liberal constitu- tionalism would be a matter for an entire book in itself.
Let us just give a small introduction, beginning with three examples.
A “judge of the people” (juiz do povo), in a moment of constitutional crisis at the be- ginning of the nineteenth century, came to a balcony and before the mob acclaimed the “Cortes” (the traditional assembly, such as the French États Généraux) of the town of Lamego, which would have occurred in the XII century. However, those Cortes rea- lly never existed. He was evoking an old myth that, centuries before, had been impor- tant to preserve independence, and was created with that purpose in mind. This story shows how old constitutional lies carry on, creating deep roots on people’s souls, and go on making their way.
In the XVIII century, Mello Freire, a scholar from Coimbra’s University, answered to the invitation of Queen D. Maria I for the revision of old law compilations (the Orde- nações) with a constitutional project4 that imposed, among other originalities, a mar- riage licence: the couple of fiancés should pass an examination before teachers of gram- mar, who should interrogate them about religion, morality and criminal law. Sometimes Constitutional Law wants to regulate everything, which does not seem to be a good idea.
The last example is about the liberal Constitutional Chart, written in a hurry by the Brazilian Emperor D. Pedro I (in Portugal, King D. Pedro IV) and his secretary over the Brazilian one, and brought to Portugal by the British ambassador, Stuart. Criticised in its time because it would have been made on a banana leaf, it took its revenge, how- ever, and remains the most lasting: from 1926 to 1911, with a small break, in 1838.5 It is not always the most elaborate and well thought out constitutions that last. Some- times, the key to constitutional longevity is political balance, not constitutional “per- fection” or “purity” itself.
We cannot resist giving a last example, further to the three promised ones: the pre- liminary report of the 1933 constitution imposed by the dictator António de Oliveira Salazar, which was approved by a plebiscite where abstentions counted as “yes” votes, which seems to be an example of the liberal and democratic DNA of the Constitutio- nal literary genre.6 Because the Constitution may be seen like that: not a fairy tale, but certainly a utopia, written in articles.7
3 D. Freitas do Amaral, As Sete Constituições Informais da Monarquia Portuguesa antes do Liberalismo, estudos em homenagem ao Prof. Doutor Martim de Albuquerque, Coimbra editora, Coimbra 2010.
4 See our book Constitution et Mythe, Les Presses de l’Université Laval, Quebec 2014, max.p. 32 et seq.;
A. Ribeiro dos Santos, Notas ao Plano do Novo Codigo de Direito Publico de Portugal, do D.or Paschoal José de Mello, feitas e apresentadas na junta da censura e revisão pelo D.or António Ribeiro em 1789, na Impren- sa da Universidade, Coimbra 1884; V.A. Duarte Faveiro, Melo Freire e a Formação do Direito Público Na- cional, “Ciência e Técnica Fiscal”, Boletim da Direcção-Geral das Contribuições e Impostos, Ministério das Finanças, No 109, Lisbon 1968, p. 73 et seq.; B. Bravo Lira, Melo Freire y la Ilustración Catolica y Na- cional en el Mundo de Habla Castellana y Portuguesa, “Revista de Derecho de la Universidad Catolica de Valparaiso”, Publicaciones de la Escuela de Derecho, vol. VIII, Valparaiso 1984, pp. 93 et seq.
5 See our book Constitution et Mythe, cit., p. 305 et seq.; E.V. Jaffeux, Eugene, Les Deux Chartes portugai- ses, Gustave Barbo, Lib., Paris 1837; F.P. de Almeida Langhans, Constituição de 1838, in Dicionário de História de Portugal, Dir. J. Serrão, Iniciativas Editoriais, vol. I, Lisboa 1963, pp. 677–678.
6 See, for example, G.A. Doerdelein, Schwartz, A Constituição, a Literatura e o Direito, Livraria do Ad- vogado Editora, Porto Alegre 2006.
7 See our book Constituição, Direito e Utopia. Do Jurídico-Constitucional nas Utopias Políticas, “Studia Iuridica”, Boletim da Faculdade de Direito, Universidade de Coimbra / Coimbra Editora, Coimbra 1996.
Although the constitution, according to the “New State” (Estado Novo) ideology, should be anti-democratic, anti-liberal and anti-parliamentary,8 it would not escape, on its facade, to some democratic, liberal and parliamentary real presences: such as elections, fundamental rights, and even the existence of a parliament – although not a single representative was seated there without the consent of the government. That was a kind of a semantic or eventually nominal Constitution9… though it still had the style of a modern one.
And no more picturesque aspects for now.
With more or less rights and freedoms, pre-liberal constitutions (in the XII, XIII, XIV, XVI, XIV, XVI, XVII, XVII–XVIII, and XIX centuries – before 1822) are monarchical constitutions ranging from a more centralised and absolutist monarchy and a monarchy of the King primus inter pares,10 with more freedoms and municipal autonomy, which strictly speaking should convene the Cortes (the old Parliament) each year.11 However, sometimes it took too long to assemble, exactly as it happened with the French États Généraux and for the same reasons.
The most salient constitutional aspects during this long pre-liberal period (until 1820, the year of the liberal revolution) are actually some aspects of freedom, perhaps common to the Spanish territory today, normally called the “old Iberian freedoms”.12 Unfortunately, these are a very unknown form of protecting the people, but they made their way through the Iberian Peninsula and were also exported to the former colonial possessions of both Portugal and Spain.13 The rights of prisoners, of consumers, of sol- diers, pilgrims, and women (in later times), along with the protection of the inviolabi- lity of private mail, namely very specific freedoms and guarantees, become even more amazing if we realise that some of them date from the VII century, not from modern constitutional revolutions, and are in certain cases prior to the Magna Charta itself…
The liberal times14 desired to recover precisely these old freedoms (both in Portugal and, for example, in France and Spain). Mingled in the first liberal revolutions was the longing to return to a traditional order, even with republican aspirations. Thus, the re-
8 Q. Avelino de Jesus, Nacionalismo Português, Emprêsa Industrial Gráfica Do Pôrto, Porto 1932.
9 K. Loewenstein, Verfassunslehre, cit., p. 151 et seq.
10 A. Botelho, Monarquia, Poder Conjugado, “Nomos. Revista Portuguesa de Filosofia do Direito e do Estado”, n.º 2, Lisbon 1986, p. 38 et seq.; F.P. de Almeida Langhans, Fundamentos Jurídicos da Monarquia Portuguesa, “Estudos de Direito”, Acta Universitatis Conimbrigensis, Coimbra 1957, p. 225–355; H. Bar- rilaro Ruas, A Liberdade e o Rei, s.e., Lisbon 1971.
11 A. Sardinha, A Teoria das Cortes Gerais, 2.nd ed., qp, Lisbon 1975; A. de Sousa, As Cortes Medievais Portuguesas (1385–1490), INIC, Centro de História da Universidade do Porto, Porto 1990.
12 J. Cortesão, Os Factores Democráticos na Formação de Portugal, 4th ed., Livros Horizonte, Lisbon 1984;
J.G. de Barros e Cunha, História da Liberdade em Portugal, Typographia Universal, Lisbon 1869; F. Elias de Tejada, A Tradição Portuguesa. Os Orígenes (1140–1521), Actas, Madrid 1999; Also see (specially the sec- ond part of) P. Ferreira da Cunha, J. Aguiar e Silva, A. Lemos Soares, História do Direito. Do Direito Ro- mano à Constituição Europeia, Almedina, Coimbra 2005.
13 For example, see M.A. Figueroa Quinteros, Apuntes sobre el Origen de las Garantías a los Derecho Hu- manos en la Legislation Hispano-chilena, [in:] Estudios de Historia de las Instituciones Políticas y Sociales, 2, Santiago 1967. See also M. Herrero de Miñon, Idea de los Derechos Históricos, Espasa-Calpe, Madrid 1991.
14 For the first period of liberal times, v.g., F. de Castro Brandão, O Liberalismo e a Reacção. 1820–1836.
Uma Cronologia, Heuris, Europress, Odivelas 1990. Sources for all the liberal period: A.M. Hespanha, C. Nogueira da Silva, Fontes para a História Constitucional Portuguesa (c. 1800–1910), Faculdade de Di- reito da Universidade Nova de Lisboa, Lisboa 2004, cd rom.
volution of 1820 and the constitution of 1822 almost established a crowned republic, with the first, normal liberal rights. Those were called the first generation rights, and now are first dimension rights: political ones.
The absolutist reaction would lead to a civil war, and when the new liberalism trium- phed again, its constitution, granted, as we have seen, by the emperor of Brazil (now king of Portugal) D. Pedro, would be more moderate. And the liberal constitution – another curious aspect, or a wise political wisdom after a civil war? – was solemnly sworn by the three estates of the kingdom according to the old absolutist rules. We can see in Portugal a certain legalism in constitutional transitions: the constituent assem- bly in 1911 also felt the need to abolish the monarchy and proclaim it from the pala- ce balcony; at the carnation revolution, the deposed ruler, the President of the Cabinet (“Conselho de Ministros”) Marcelo Caetano, “gave” power to the leader of the insur- gents, General António de Spínola, adding that he did so in order to ensure that the power did not fall on the street.
There would be new adventures, but in general liberal constitutions are primarily po- litical constitutions that eventually set up a rotating democracy in Portugal, with two main parties or groups replacing one another in power, one after the other. It is not very different to what happened after the constitutional institutionalisation of the car- nation revolution: we have two main parties that, alone or, in the case of the right wing party, with the help of others, alternated in power, controlled by a parliament where, in addition to these three political forces, there is still a Communist Party along more or less classic lines as well as a party that comes from the revolutionary left. This one never knew the chairs of government, and the communists were only there at the first national unity coalitions, along with right wing moderates and democratic socialists, immediately after the 25 April revolution in 1974. Will the present terrible crisis chan- ge the Portuguese political spectrum, as it did in Greece recently (2015)? Only the fu- ture can tell… In the meantime, some new parties are preparing to replace the tradi- tional forces in the chairs of power.
In Portugal (not only, but very clearly there), written constitutions, either derived from the will of princes or from representative elected assemblies, are real legitimising discourses institutionalising a constitutional order previously established by more or less revolutionary means.
The Constitution of 1822 came to legitimise the liberal revolution of 1820; the Cons- titutional Charter of 1826 institutionally consumes the victory of the supporters of the liberal D. Pedro over the absolutist D. Miguel. The Constitution of 1938 is a result of the revolution of September, yawing “left”; the restoration of the text of 1826 is a retreat to the “right”, and after that the 1911 Constitution legalised the establishment of the Re- public of the last year. The 1933 text is no exception, representing the legal stability of the revolution of 1926. And after the Estado Novo was overthrown in 1974, the 1976 Constitution is the legal status of the political output of the 1974 carnation revolution.15
We will concentrate mainly on the last three constitutions. The one of 1911, which was Republican and still “liberal” in the old sense, the one of 1933 – authoritarian and social, and the present one, approved in 1976, which is democratic and social, explicitly
15 M. Caetano, História Breve das Constituições Portuguesas, 3rd ed., Verbo, Lisbon 1971. See our books Raízes da República. Introdução Histórica ao Direito Constitucional, Almedina, Coimbra 2006 and Direito Constitucional Geral, 2nd edition, Quid Juris 2013.
creating the “Social State”, with rule of law, and democracy at all levels. At least, that is
“law in the books”, whereas “law in action” is quite another thing, special in these mo- ments of severe crisis, and submissive to “international markets” and the like.
II. THE REPUBLICAN CONSTITUTION (1910–1926)
A popular uprising in 1910, led, of course, by republican militants, toppled the weake- ned King D. Manuel II, not long after two snipers shot dead his father, the reigning D. Carlos, and his brother, Crown Prince, D. Louis Philippe. That year, 1910, saw the beginning of the Republic of Portugal.16
Very rich legal and constitutional debate was held in the sessions of the National Constituent Assembly of 1911. If here and there saw the almost inevitable parliamen- tary verbalism, much was offset and outweighed by the high quality of many debates, in general no longer garnished with vain oratorical fireworks, but grounded in docu- mentation, doctrine and thought. As stated by Mário Soares (lawyer and historian, and twice president of the Portuguese Republic) in his detailed study of this Constitution,
“The discussions preceding the adoption of the Constitution were […] very broad, fo- cusing primarily on the problem of the presidential regime, which was rejected, and on the question of whether to create one or two chambers.”17
The Constituent Assembly worked very quickly: from 19 June to 21 August 1911.
Started, with impeccable legal rigor, by the sanction of the Republican revolution to abolish the monarchy de jure, and also to deploy the Republic de jure. The Constituent Assembly took this effort to legitimise so much to heart that in the first session mem- bers heard a decree on the abolition of the monarchy and the banishment of the dynas- ty of Braganza, and voted unanimously and by acclamation. However, they did more:
after that, the President interrupted the session and went to the main balcony of the Parliament to announce that “the Portuguese Republic was proclaimed by the Natio- nal Constituent Assembly.” After all, performing the ritualised procedures, gave legiti- macy to the proceedings18.
More than a dozen draft constitutions emerged. The Commission’s draft, whose rap- porteur was Sebastião de Magalhães Lima, would soon be presented to the Assembly:
on 3 July. In the synthesis of Jorge Miranda, “The Congress of the Republic would have two sections or chambers – The National Council, directly elected, and the Board muni- cipalities, elected by the councillors of municipal councils. The two Boards jointly elect the President of the Republic and could remove him by two-thirds majority. The Pre- sident would appoint and dismiss ministers freely, who would not be accountable to Congress. There would be a High Court of the Republic, for the trial of crimes of res- ponsibility. The text also contains some interesting and innovative provisions in the field of fundamental rights.” 19
16 For this period, in general, F. Catroga, O Republicanismo em Portugal. Da formação ao 5 de outubro de 1910, 2 vols., Coimbra 1991; C. Oliveira, O Operariado e a República Democrática, 1910–1914, Afron- tamento, Porto 1972.
17 See, for more details, M. Soares, Constituição de 1911, in Dicionário de História de Portugal, Dicionário de História de Portugal, Dir. J. Serrão, Iniciativas Editoriais, vol. I, Lisboa 1963, p. 679 ss.
18 N. Luhmann, Legitimation durch Verfaheren. 2nd ed., Neuwid 1975.
19 See, for more details, Manual de Direito Constitucional, I, Coimbra Editora, Coimbra 1981.
In truth, the main discussion concerned presidentialism. Many arguments of many hues were brandished. The first Commission spokesman, Francisco Correa de Lemos, presented himself to his colleagues as just “a poor judge from the countryside.”20
Given the “nays” immediately raised, he amended, “If you want to be gracious to me, tell [the Assembly] that I am a man of good will, and you will not deceive.” Thus star- ted the parliamentary debate.
Lemos declared the objective of the proposed constitutional design as reconciling a strong government with the Republic. A terrific myth of “weak governments” was al- ready present at that time. However, some historic research seems to allow us to con- clude that the only governments that do not fall sometimes (and that alone may be not a sign of weakness) were the monarchical absolutist ones. Even some dictators very of- ten dismiss their ministers… as Salazar did, by a simple handwritten note on a card, thanking the minister and saying “good bye”.
The politicians at that time wanted a strong government, but a republican one. How- ever, now the speaker seemed to contradict himself, and this contradiction can be seen as the key to all the contradictions of the system (and more widely):
On the one hand, he begins by stating: “But to form a strong government is not gi- ving the preponderance either this or to that, or to any other power.”
To simply say, surprisingly, less than a dozen lines below: “Organise the power as you wish. There must be always someone who has hegemony.”
And then he admits that the tendency of the ruling power is to make unique power.
Immediately afterwards, the aforementioned draft was criticised by Alexandre Bra- ga: because it would minimise the figure of the president, besides not remunerating the height of his dignity. However, it was also defended for its cost containment by the voice of another committee member, José de Castro. It was evidently the spectrum of the advances to the Royal House and the myth of the Swiss president, marrying a solu- tion called “puritan”. This problem was still the surface of the issue.
The Assembly discussed everything: the “parliamentary bullfights” of ministers in Assembly (and whether or not they should attend the parliamentary sessions), federa- lism, the power of the President to dissolve the Assembly or not, etc…
The draft was classified in various ways (as being both presidential and unpresiden- tial): it was said, not without adjustment, that presidentialism was a typical American regime, less appropriate to Western European countries. Curiously, in Brazil there is an academic thesis underlining almost that perspective. In fact, political regimes some- times work here and sometimes they do not.
At the end of everything, a system of pure parliamentarism was approved, with no safety valves. And that absence of balances would be the institutional reason for the collapse of the regime 16 years later. Although the main reason was, most probably, the fratricide wars among the various groups of republicans, and the loss of republican ethics, values and virtues.
Having been working on a presidential draft, not everything would eventually be corrected in the radical change of concept that occurred. Namely, the absence of the power to dissolve Parliament by the president. That was immediately criticised, even
20 All the quotations of the debates are from Actas da Assembleia Nacional Constituinte de 1911 (de 15 de junho a 25 de agosto), Assembleia da República, Lisboa 1986.
with fears of creating a weakening power (Alexandre Braga), and defended with fears of abuse by the head of state (Jose de Castro). The president was, at that time, almost purely a figurehead. This limitation of presidential powers would be corrected in the revision of 1919: but after already paying a high price…
This Constitution is thus parliamentarian.
The powers in the Constitution of 1911 are “independent and harmonic between them “(Art. 6). However, the Assembly even brought into question the existence of any president at all.
The Constitution aligns the thesis of national sovereignty (Art. 5), follows the prin- ciple of the separation of powers (Art. 6), establishes a regime of representative democ- racy (Arts 7 and 15) founded on universal suffrage, though the electoral laws exclu- ded women and the illiterate, among others. The justification for this by Afonso Costa, a real symbol of the regime, is at least interesting: with an enormous level of illitera- cy and the suffocating influence of fathers, husbands and brothers, and, of course, the Church, how could women or the illiterate consciously vote (or be allowed to vote)?
Of course, a republican woman, Carolina Ângelo, was allowed by the court to vote, be- cause nothing in the law initially forbade it, though the law would soon be changed.
This prejudice or extreme caution is still now one of the most popular monarchist ar- guments against the republic and republicans.
You can say that the rights, freedoms and guarantees of the Constitution of 1911 are still liberal: freedom, understood as a guarantee against illegal measures (“No one may be compelled to do or prevented from doing something except by virtue of the Law”), equality before the law, the defence of property, and the right of resistance. The aboli- tion of the death penalty crowned a process that began in the Additional Act from 1892.
We must register some constitutional innovations, such as the control of constitutiona- lity (Art. 63) and the recognition of material fundamental rights, beyond the formal, explicit in the text of Constitution (Art. 4). From Brazilian sources, we must remem- ber habeas corpus, hitherto unknown among us, probably because of the large French influence on our modern constitutionalism, being averse to this institution.
A hallmark of the republic would, of course, be the abolition of the monarchy, and with it, the related titles and privileges.
The Republican ideology of secularism (initially exaggerated in anti-clericalism) would naturally lead to the consecration of religious freedom in terms far more gene- rous than the constitutional monarchy, and consequently to the idea of strict separa- tion between church and state (Art. 3, 5).
A certain decentralising romanticism coexisted, with the prevalence of the thesis of the unitary state (Art. 1). However, as finances were centralised, the “autarchic” con- stitutional autonomy (art. 66) would be almost vain words.
It was interesting to note the importance given to the enforcement of minorities’ rep- resentation in local government. However, republicanism was colonialist, along with its historical “circumstance”, in a direction that would relate, in general, to indepen dence at the proper time of preparing the populations. However, the regime insisted on the decentralisation of “ overseas provinces”, “with special laws appropriate to the state of civilisation of each of them.”
The social dimension of the republic was scarce, despite several attempts by Afonso Costa, Magalhães Lima and others. There were once a minister of labour issues called
the “Portuguese Lenin” for his ideas, but it seems he was not very consistent in prac- tice and did not, after all, last long in office.
For example, this old republic (república velha) did not recognise constitutional dig- nity to the right to strike, although legally recognised already by an ordinary Decree:
from 6 December 1910.
There was a sincere educational concern, with compulsory basic or “primary” edu- cation (Art. 3, No. 11). Very few healthcare provisions were implemented, along with some about death. However, we must remember that budgets at the time were small, and republican leaders wished to have strong and safe financial results. And they suc- ceeded at this sometimes, even reaching a surplus, which is not a small achievement, even given the context.
The Constitution of 1911 was in force from 21 August 1911 to 9 June 1926 (a revolu- tion was made in 28 May of this year). Then, a dictatorial decree officially dissolved the Republican Parliament. The white and black photos of the time show more the tired- ness of the deposed members of the Parliament than real faces of revolt. It seems the Republic gave up. In fact, some authors see, in the extinction of the idealistic flames, the main reason for the end of the regime. They are probably right.
There was a textual constitutional hiatus between 9 June 1926 and 11 April 1933, when the “New State” ratified its new constitution.
Even from 1911 to 1926 there were constitutional problems. In May 1915, the dic- tatorship of Pimenta de Castro suspended the Constitution of 1911, though in 1917 it would suffer a more severe blow, but not definitive.
Sidónio Pais (professor of Coimbra and the military), the only truly presidential Por- tuguese president, having ascended to power in a military coup (5 of December 1917), by decree No 3997, of 30 March 1918, formally consummated the modification of the Constitution of the country. Populist, he introduced a mitigated form of universal suf- frage and the direct election of the President. Good looking and always in his military uniform, some say that he counted with the women’s vote. Although naturally not re- specting the requirements for approval of a Constitution in the modern sense, some even call this decree the “Constitution of 1918”. Only cum grano salis it could be so.
It was the Constitution of a dictator.
The autocrat was shot dead in the Rossio station on 14 December 1918. congress quick- ly hastened to restore the interrupted constitutional order: two days later, by Law No. 833.
What has become known as the North Monarchy was also a partial rupture of the constitutional order of 1911. There is a certain connection between the North Monar- chy and the Sidónio Pais movement: firstly, the Manifesto of military junta of North Monarchy claimed the legacy of the President-King killed a year earlier.
The uprising was short-lived: on 19 January the monarchy was restored (symboli- cally) in Oporto. Five days later, the movement, strangled at birth in the south, was confined to the territory dominated by the junta of Paiva Couceiro (always loyal to his king), in the Oporto, bastion defended with severe repression.
Less than a month later, however, the Republicans again placed the green-red flag in the north capital (13 February). The blue-white flag of the monarchists would remain only the proud colours of a football club, though in a short time it would lose any po- litical connotation.
Of the four major constitutional revisions of the Constitution of 1911, the most rele- vant, though without the desired effect, would undoubtedly be Law No. 891 of 22 Sep-
tember 1919, recognising the error that was not providing the President of the Repub- lic with powers to dissolve the Congress in the constitution from the beginning. Even so, the President would have to listen to the opinion of a Parliamentary Council before deciding. This advice is certainly the first formal constitutionalisation of the role of po- litical parties. Law No 1154 of 27 April 1921 comes in the wake of that change, and de- termines the vital and remaining powers of various organs (President, Congress and the Government) during the dissolution of Congress.
III. THE CONSTITUTION OF THE “NEW STATE” (1933–1974)
The most notable features of the Constitution of 1933, at an ideological level, are na- tionalism and corporatism (though this last aspect was very weak and rootless, which led to its classification as mere “state corporatism”), which, by interpreting their form of the Catholic Church’s social doctrine, insisted on “class collaboration”, but actually such talk merely serves to legitimise a situation of profound inequality, with some pro- tests from Catholic priests, and even the Bishop of Oporto, D. António Ferreira Go- mes,21 was obliged to go into exile.
At the institutional level, an almost all-powerful presidentialism looms above all with time and praxis (in which jutted the very strong figure of Salazar as President of the Council of Ministers), and the constitutional amendment was enacted after a threat in the form of the candidacy of General Humberto Delgado, later murdered by the poli- tical police, was transformed into the “presidentialism of the prime minister”.
The constitutional report condemns both monarchical liberalism and the period of the first republic. It defines the constitution as essentially nationalist – avoiding the contemporary “extremely aggressive” states (p. 7), while “substantially” retaining indi- vidual guarantees for citizens already contained in the 1911 Constitution, and all sub- ject to a “fair harmony of the whole society” (ibid.).
The “New State” looked to put this doctrine into a “middle position” between indi- vidualism and liberal parliamentary democracies, on the one hand, and the “worshi- pers of the State”, identifying the “confining doctrines of socialism and statism” (the lat- ter perhaps designating Nazism and fascism: to demarcate the regime itself, not always succeeding in practice) (p.10) on the other.
The institutionalised form of presidentialism is so vast that we sometimes wonder whether Salazar did not want an absolute monarchy (liberal would never be): “The Head of State is the President directly elected by heads of family.” It is the first organ of sove- reignty. The president exercises his functions independently of the votes of the Natio- nal Assembly. He appoints and dismisses governments, he responds directly and exclu- sively “before the Nation” and his political personality is inviolable. Its independence and solemnity of assignments give it a unique position among all organs of sovereign- ty. The Constitution sets out the true functions of a Head of State, and not simply the executive power. It is the quintessential element of the harmony of the state.
Using the classification of constitutions conceived by Karl Loewenstein,22 Adriano Moreira (a former minister and president of the Academy of Sciences) qualifies the
21 D.A. Ferreira Gomes, Carta a Salazar, new ed., Edições do Tâmega, Amarante 1993.
22 K. Loewenstein, op. loc. cit.
1933 Constitution as “semantics”, and draws this picture significantly, as shown in the quote: “The 1933 Constitution was a document more concerned with image than with the reality of the political system. […]”23
There are abundant examples of how, after the conspiracy of 1961, there were attempts not to return to the letter and spirit of the constitutional text, but rather to openly try to restore the de facto regime: “For both sought to deploy one charismatic leadership, the abuse of the media; proceeded to the concentration of power at the head of the govern- ment, changing up the legislative process, while the stated purpose to liberalize exter- nal image; constant popular manifestations, accompanied the proclamation of modes- ty in governance, confessed surprised with that […], the announcement of the end of censorship, was accompanied by the purchase of newspapers or bodies under the State or by groups that supported the government, and the establishment of the preliminary examination that nobody distinguished from censorship; the assertion of strict legali- ty, was compatible with the publication of the retroactive law to safeguard interests of private banking; disobedience to judgments of the Supreme Administrative Court did not cause hesitation, the enactment of legislation for intimacy, accompanied by inten- sive exercise of wiretapping that newspapers will disseminate, and violation of the cor- respondence, the state arbitration rule of private interests, fought with the imposition of friends administrations and companies with the persecution of the disaffected. […] All of this is the political process of a semantical constitution, i.e. a collection of words in- tended to compose an image, but with little connection to reality.”
The text of the 1933 Constitution, the facade of an order that was not a rule of law, remains an example of a contrast with constitutional reality, a divergence between the norm and life, between theory and practice, between the mask and the face.
One aspect that is immediately striking today to anyone who reads the 1933 Consti- tution is its style: not entirely of its time, still sharing something with a previous time.
The symbol of political representation and fundamental rights in the Portuguese Constitution of 1933 is apparently just an article: the sole paragraph of Art. 7, about the reciprocal treatment of foreign nationals between Portugal and other countries. How- ever, about Portuguese people it says nothing less than “Portuguese subjects.” “Súbdi- to”, in Portuguese language is more or less a servant. So, the Portuguese people were conceived as little more than a people of vassals.
In terms of representation, everything initially depended on the president. The Cons- titution expressly cautioned that the fate of government initiatives in the National As- sembly would determine nothing in the maintenance of the Government or its down- fall, noting that it only depended on the president. It is symptomatic that there is an article expressly stating this (Art. 111). After General Delgado frightened (and some say that he really defeated) the regime candidate, Admiral Tomás, in general elections, the constitution changed and the president was no longer elected by the people.
The practice also deepens the illusory nature of constitutional rights.
Article 8 is a parade of numerous rights, freedoms and guarantees that we used to see in the literary genre “constitution”, from the classical liberal constitutions. How- ever, curiously from No 6 there start to be restrictions in the text. Thus, the inviolabili- ty of the home and the secrecy of correspondence suffer a modulation by what the law may determine (6), the same occurring with the freedom to choose a profession (7).
23 A. Moreira, O Novíssimo Príncipe. Análise da Revolução, Intervenção, Braga–Lisboa 1977.
