Safeguards and Revision of the Constitution

Section I  Supervision of the Constitutionality
 
Article 277  Active Unconstitutionality
(1) Provisions of law that infringe a provision of the Constitution or the principles laid down therein are unconstitutional.

(2) The organic or formal unconstitutionality of international treaties that have been regularly ratified do not prevent the application of their provisions in Portuguese law as long as the provisions are applied in the law of the other party, except if the said unconstitutionality results from the violation of a fundamental principle.
 
Article 278  Preventive Scrutiny of Constitutionality
(1) The President of the Republic may request the Constitutional Court to judge preventively the constattionality of any provision of any international treaty that has been submitted to him for ratification, an act sent to him for promulgation as a law or decree-law or an international agreement the act of approval of which has been sent to him for signature.

(2) The Ministers of the Republic may also request the Constitutional Court to judge preventively the constattionality of any provision of a regional legislative decree or a decree implementing general law of the Republic that has been sent to them for signature.

(3) Preventive assessment of constitutionality has to be requested not later than eight days after the date in which the text was received.

(4) The President of the Republic, the Prime Minister, as well as one-fifth of the Members of the Assembly of the Republic in active duty are entitled to request the Constitutional Court to assess preventively the conformity with the Constitution, of any provision of any decree submitted to the former for the purpose of being promulgated as an organic law.

(5) When submitting to the President of the Republic a decree that should be promulgated as an organic law, the President of the Assembly of the Republic must, on the same day, inform the Prime Minister and the parliamentary groups of the Assembly of the Republic.

(6) Preventive assessment of the constitutionality as provided for in Paragraph (4) has to be requested within eight days from the date mentioned in the preceding paragraph.

(7) Without prejudice to the provisions of Paragraph (1), the President of the Republic may not promulgate the decrees mentioned in Paragraph (4) either before eight days having elapsed since the date of their reception or before the Constitutional Court, if requested, has ruled.

(8) The Constitutional Court hands down its ruling within twenty-five days: this time limit may be shortened by the President of the Republic for urgent reasons, where Paragraph (1) applies
 
Article 279  Effects of Decisions
(1) If the Constitutional Court rules that a provision of any act or international agreement is unconstitutional, the instrument is vetoed by the President of the Republic or the Minister of the Republic, depending on the case, and sent back to the organ that approved it.

(2) Under the circumstances provided for in the preceding paragraph, the decree may not be signed nor promulgated unless the organ that approved it has expurgated the provision judged unconstitutional or, where appropriate, has confirmed it by a two-thirds majority of the Members of the Assembly of the Republic present, where that majority is larger than the absolute majority of the Members entitled to vote.

(3) If the instrument is reformulated, the President of the Republic or the Minister of the Republic, depending on the case, may request the preventive judgement of the constitutionality of any of its provisions.

(4) Where the Constitutional Court rules to the effect that a provision of a treaty is unconstitutional, that treaty is ratified only if the Assembly of the Republic approves it by a two-thirds majority of the Members present, where that majority is larger than the absolute majority of the Members entitled to vote.
 
Article 280  Supervision In Concreto of the Constitutionality and Legality
(1) The Constitutional Court has jurisdiction to hear appeals brought against any of the following court decisions:
a) Decisions to the effect of rejecting the application of any provision on grounds of unconstitutionality;
b) Decisions to the effect of confirming the application of any provision, the constitutionality of which was questioned before that court.

(2) The Constitutional Court has jurisdiction to hear appeals brought against any of the following court decisions:
  1. Decisions to the effect of rejecting the application of any provisions of a legislative act on grounds of violation of a higher ranking law;
  2. Decisions to the effect of rejecting the application of any provision of a regional legislative text on grounds of violation of the statute of an autonomous region or a general law of the Republic;
  3. Decisions to the effect of rejecting the application of any provisions of a text adopted by an organ of supreme authority on grounds of violation of the statute of an autonomous region;
  4. Decisions to the effect of giving application to a provision, the legality of which was questioned before that court on any of the grounds mentioned in Sub-Paragraphs (a), (b) and (c).
(3) Where the application of a provision of an international convention, a legislative act or a regulatory decree has been rejected by a court, the Public Prosecution ex officio appeals under the provisions of Paragraphs (1)(a) and (2)(a).

(4) The appeals provided for in Paragraphs (1)(b) and (2)(d) are available only to the party that raised the question of the violation of the Constitution or the law; the law lays down rules on the requirements and procedure with respect to the admissibility of such appeals.

(5) The Constitutional Court also has jurisdiction to hear appeals brought against court decisions where the latter rule to the effect of giving application to provisions that the former previously ruled to be unconstitutional or illegal; under such circumstances, the Public Prosecution appeals ex officio.

(6) Appeals to the Constitutional Court are restricted to the question of unconstitutionality or illegality, as the case may be.
 
Article 281  Supervision in abstracto of the Constitutionality and Legality
(1) The Constitutional Court has jurisdiction to rule on the following; the corresponding rulings being fully binding on every person and every authority:
  1. The unconstitutionality of any provision;
  2. The illegality of any provision of a legislative act on grounds of violation of a higher ranking law;
  3. The illegality of any provision of a regional legislative text on grounds of violation of the statute of a region or a general law of the Republic;
  4. The illegality of any provision of a text adopted by an organ of supreme authority on grounds of violation of the rights of a region as set forth in the statute of the latter.
(2) The following are entitled to request the Constitutional Court to pass fully and generally binding rulings on the unconstitutionality or illegality of a provision:
  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. Where the grounds for the request with reference to unconstitutionality are the violation of the rights of an autonomous region, or the grounds for the request with reference to the illegality are the violation of the statute of the region concerned or a general law of the Republic, the Ministers for the Republic, the regional legislative assemblies, the presidents of the latter, the presidents of the regionalgovernments, or one-tenth of the members of a regional legislative assembly.
(3) The Constitutional Court also has jurisdiction to rule on the unconstitutionality or illegality of any provision where it has so ruled with respect to the application of that provision in three concrete cases; the corresponding rulings are fully binding on every person and every authority.
 
Article 282  Effects of a Ruling of Unconstitutionality or Illegality
(1) A generally binding ruling of unconstitutionality or illegality produces its effects as from the entry into force of the provision ruled unconstitutional or illegal and determines the restoration, with retroactive effects, of the provisions that it may have revoked.

(2) In the case of unconstitutionality or illegality due to infringement of a later constitutional or legal provision, the ruling produces its effects only as from the entry into force of the latter.

(3) Cases already judged are safeguarded, except if the Constitutional Court decides otherwise when the provision concerns penal or disciplinary matters or illegal acts in violation of mere social rules and is less favorable to the accused.

(4) When required by legal security, reasons of equity or public interest of exceptional importance, which have to be justified, the Constitutional Court may fix the effects of unconstitutionality or illegality in a more restrictive way than is provided for in Paragraphs (1) and (2).
 
Article 283  Unconstitutionality by Omission
(1) At the request of the President of the Republic, the Ombudsman or, on the grounds that the rights of the autonomous regions have been violated, the presidents of the regional assemblies, the Constitutional Court judges and verifies failure to comply with the Constitution by omission on the part of the legislative acts necessary to implement the provisions of the Constitution.

(2) When the Constitutional Court verifies the existence of unconstitutionality by omission, it communicates the fact to the competent legislative organ.
 
Section II  Revision of the Constitution
 
Article 284  Competence and Time of Revision
(1) The Assembly of the Republic may revise the Constitution once five years have elapsed after publication of any revision law.

(2) The Assembly of the Republic may, however, by a majority of four-fifths of its members entitled to vote, assume powers of constitutional reform at any time after revision provided for in the foregoing article.
 
Article 285  Power to Initiate Constitutional Reform
(1) Members of the Assembly are competent to initiate constitutional reform.

(2) Once a plan for constitutional reform has been tabled, any further such plans must be tabled within 30 days.
 
Article 286  Approval and Promulgation
(1) Amendments to the Constitution are approved by a two-thirds majority of the members of the Assembly entitled to vote.

(2) Changes in the Constitution which are approved are incorporated in a single revision law.

(3) The President of the Republic may not refuse to promulgate the revision law.
 
Article 287  New text of the Constitution
(1) Amendments to the Constitution are inserted in their proper place with the necessary substitutions, deletions, and additions.

(2) The new text of the Constitution is published together with the revision law.
 
Article 288  Limits to the Revision on the Substance
The laws revising the Constitution safeguard:

a) National independence and the unity of the State;
b) The republican form of government;
c) The separation of the Churches from the State;
d) The rights, freedoms, and safeguards of the citizens;
e) The rights of the workers, workers' committees, and trade unions;
f) The co-existence of the public, the private, and the cooperative and social sectors, with respect to the property of the means of production;
g) The existence of economic plans within the framework of a mixed economy;
h) Universal, direct, secret, and periodical suffrage for the appointment of the elected members of the organs of supreme authority, the autonomous regions, and the organs of local government, as well as the system of proportional representation;
i) Plurality of expression and political organization, including political parties and the right to a democratic opposition;
j) Separation and interdependence of the organs of supreme authority;
l) The scrutiny of legal provisions for active unconstitutionality and unconstitutionality by omission;
m) The independence of the courts;
n) The autonomy of local authorities;
o) The political and administrative autonomy of the archipelagos of the Azores and Madeira.
 
Article 289  Circumstantial Limits to Revision
No act may be undertaken to revise the Constitution while a state of siege or emergency is in force..