Portuguese Constitution of 1976

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Portugal is governed under the constitution of 1976 whose preliminary drafting was largely completed in 1975, then finished and officially promulgated in early 1976. At the time the constitution was being drafted, a democratic outcome was still uncertain in the midst of the revolution. Even after a leftist coup had been put down in November 1975, it was not known if the armed forces would respect the assembly and allow work on the constitution to go forward. The MFA and leftist groups pressured and cajoled the assembly, and there was much discussion of establishing a revolutionary and socialist system of government. Moreover, not all of the assembly's members were committed to parliamentary democracy. The membership was intensely partisan, with some 60 percent of the seats occupied by the left.

After great struggle, the Constituent Assembly eventually adopted a constitution that provided for a democratic, parliamentary system with political parties, elections, a parliament, and a prime minister. The document also established an independent judiciary and listed a number of human rights. Although relatively few of these provisions are exceptional, some of the constitution's features are noteworthy; including its ideological content, its provision for the role of the military, and its dual presidential-parliamentary system.

Until the constitutional revisions of 1982 and 1989, the constitution was a highly charged ideological document with numerous references to socialism, the rights of workers, and the desirability of a socialist economy. It severely restricted private investment and business activity. Many of these articles were advanced by Portuguese Communist Party (PCP) representatives in the Constituent Assembly, but they were also advocated by members of the Socialist Party (PS), who at that time, for electoral reasons, were seeking to be as revolutionary as the far left. The resulting document proclaimed that the object of the republic was "to ensure the transition to socialism." The constitution also urged the state to "socialize the means of production and abolish the exploitation of man by man," phrases that echoed Karl Marx's Communist Manifesto. Workers' Committees were given the right to supervise the management of enterprises and to have their representatives elected to the boards of state-owned firms. The government, among many admonitions along the same vein, was to "direct its work toward the socialization of medicine and the medicopharmaceutical sectors."

Next, the military was given great political power through the role given by the constitution to the MFA-controlled Council of the Revolution that, in effect, made the MFA a separate and almost co-equal branch of government. The council was to be an advisory body to the president (who was at first likely to come from the military itself), and would function as a sort of constitutional court to ensure that the laws passed by parliament were in accord with the MFA's desires and did not undermine the achievements of the revolution. The council was also to serve as a high-level decision-making body for the armed forces themselves. The council was a concession to the MFA for allowing the Constituent Assembly to sit and promulgate a new "basic law." Some of the Portuguese Left, especially the PCP, supported the idea in the hope that it would continue to enjoy MFA support even if it lost ground with the electorate.

The final innovative feature of the constitution was that it provided for a system of government that was both presidential and parliamentarian. The Constituent Assembly favored two centers of power in order to avoid both the dangers of an excessively strong executive, as was the case during the Salazar period, and the weaknesses of parliamentary instability, as was the case in the First Republic.

The constitution was controversial from the start. It was widely seen in political circles as a compromise document in that all participants in its drafting had been able to incorporate in it provisions they found vital. The constitution's parliamentary sections had the support of the PS, the PSD, and the Centro Democrático Social (CDS); its socialistic content had the support of the PCP and its allies and the PS.

Even before the constitution became law, politicians had agreed to change some provisions after the five-year period in which changes were prohibited. Objections to the document centered on its ideological content, its economic restrictions, and its recognition of a military role in the governance of the country. The CDS, the party furthest to the right among those which had participated in the document's drafting, refused to ratify it. However, the party agreed to abide by it in the interim.

By the early 1980s, the political climate was ripe for constitutional reform. The center-right coalition AD, formed by the PSD, the CDS, and the monarchist party, the PPM, was in power; the PS had been voted out of office, and the PCP was politically isolated. The first amendments, enacted in 1982, dealt with the constitution's political arrangements. Although many of the economic provisions of the constitution had been not been implemented and were, in effect, ignored, there were not yet enough votes to reach the required two-thirds majority needed for their amendment.

The 1982 amendments were enacted through the combined votes of the AD and the PS. This combination of center-right and center-left political forces managed to end the military's control of Portuguese politics. It abolished the Council of the Revolution, controlled by the military, and replaced it with two consultative bodies. One of these, the Higher Council of National Defense, was limited to commenting on military matters. The other, the Council of State, was broadly representative of the entire country and did not have the power to prevent government and parliamentary actions by declaring them unconstitutional. Another amendment created a Constitutional Court to review the constitutionality of legislation. Because ten of its thirteen judges were chosen by the Assembly of the Republic, it was under parliamentary control. Another important change reduced the president's power by restricting presidential ability to dismiss the government, dissolve parliament, or veto legislation.

Despite these amendments, centrists and conservatives continued to criticize the constitution as too ideological and economically restrictive. Hence, the constitution was amended again in 1989. Many economic restrictions were removed and much ideological language eliminated, while governmental structures remained unchanged. The most important change enabled the state to privatize much of the property and many of the enterprises nationalized during the mid-1970s.

Further amendments were to become possible in 1994. Political scientists speculated that the electoral system might be amended so that Portuguese living abroad could vote in presidential elections, a change that had long been sought. Another change could be the introduction of the concept of the "constructive vote of no confidence" used in Germany to help shore up minority governments. This parliamentary provision would permit a government to remain in place despite a vote of no confidence if the parliament could not form an alternative government and would prevent purely negative majorities from destroying a government. As of the early 1990s, a Portuguese government that received a vote of no confidence had to resign.

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