TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 214/11

29 of April of 2011

Headnotes:

Parliament revoked regulatory legislation passed under the terms of legislation that itself remains in force. This continued force implies the maintenance of the legal parameters in accordance with which the government must undertake both its derivative normative activities and its administrative work, both of which are necessary to the fulfilment of those parameters. As such, Parliament deprived the government of the instruments with which the Constitution equips the latter in order to pursue the tasks that are constitutionally entrusted to it. This has disrupted the rationale of the system under which there is a separation between and interdependence of the entities that exercise sovereignty, and entails an unconstitutional breach of the principle of separation and interdependence.

By passing a norm that requires the government, by the end of the current academic year, to begin the process of negotiating with the trade unions with a view to achieving approval of the legal and regulatory framework that will embody a new teacher performance appraisal model, in such a way as to produce effects as of the start of the next academic year, the Parliament imposed a political option. This is illegitimate, even within the spaces in which the Parliament and the government’s normative competences come together to produce an emerging regulatory power. This violation of the government’s specific sphere of autonomy occurs whether the guilty norm belongs to the same hierarchical category as the governmental act (Law – Executive Law), or to one that is on a different level (legislative act – regulatory act).

The government is an organ that possesses its own constitutional legitimacy and competences, the status of which is not in the hands of the ordinary legislator. Within the limits imposed by the Constitution and the law, the government is autonomous in the exercise of both its governmental and its administrative functions. In the areas in which there is a confluence between acts of political governance on the one hand and administrative acts for which the government is responsible on the other, the positive dimension of the principle of the separation and interdependence of entities that exercise sovereignty imposes a functional limit on the use of the Assembly of the Republic’s universal legislative competence (universal, because no legislative competence is reserved exclusively to the government), such that the Assembly cannot use its universal competence in legislative matters to obliquely exercise review competences. The Assembly can reject the government’s proposals, can deny it instruments of governance, can criticise it and can cause it to resign. It can adopt laws that are contrary to the government’s programme, thereby altering the primary options of the legal regime in a given domain. But, in the domain of the administrative competences which the Constitution entrusts to the government, the Parliament cannot order the government to engage in given political acts or to adopt given guidelines, without first changing the legal parameters from which those acts derive.

By seeking to use instructions or commands to bind the government in the exercise of its regulatory power, without first changing the legal parameters on whose basis that power is exercised, the Parliament violated the constitutional principle of the separation of powers.

Summary:

The President of the Republic requested a prior review of the constitutionality of all the norms contained in a Decree of the Assembly of the Republic that had been sent to him for enactment as a Law. The Decree in question suspended the current teacher performance appraisal model. For analytical purposes, the Decree essentially comprised three articles: Article 1 required the government to begin the process of negotiating with the trade unions in such a way as to lead to approval of the legal and framework that would subsequently embody a new teacher performance appraisal model; Article 2 established the norms that were to apply during the transitional period until the new appraisal model entered into force, in the form of the revalidation of the model that had been in force prior to the current one; and Article 3 revoked the current Regulatory Decree. There was also an Article 4, whose constitutionality was also to be the object of review. It concerned the entry into force of the Law into which the Decree of the Assembly of the Republic would turn if the legislative process were to be concluded.

The request for a review of the constitutionality of the norms was based on the possible existence of a violation of the principle of the separation and interdependence of the powers of the entities that exercise sovereignty, a violation of the Administration’s sphere of intervention, and a violation of the principle of the protection of trust that is inherent in a state based on the rule of law.

The Constitutional Court began by emphasising that, as a rule, in considering such a request it ought to individually address each of the norms submitted to it for review. However, when faced with a request in which all the norms were challenged on essentially the same grounds and in which they – and particularly the norm that resulted in a command to the government to begin the procedures that were likely to lead to a new teacher appraisal model, and the norm that revoked the current Regulatory Decree – formed a block designed to respond to the problem of the operation of state schools and the management of their teaching staff (the problem which, in the view of the legislature, justified this legislative initiative), there was no reason why the norms should not be jointly compared to the parameters for constitutionality that applied to all of them.

The principle of the separation and interdependence of powers finds its place in the Constitution in the first of the articles that determine the substance of a state based on the rule of law (a substance whose supporting pillars include precisely that separation and interdependence), as well as in a norm that is systematically included in the part of the Constitution that deals with the organisation of political power, in which its scope is more specific inasmuch as it concretely refers to the relations between entities that exercise sovereignty.

The principle of the separation of powers is thus simultaneously a fundamental principle of the organisational structure laid down in the Constitution, and one of the principles that define the political community and the state.

The Court recalled that nowadays this principle of the separation of powers performs not only the traditional role of organically and functionally dividing up the powers of the state in such a way as to protect citizens’ fundamental freedoms and rights, but also a multiplicity of constitutional functions, such as the function of delimiting the separation of powers, the function of rationalising their exercise, the control function, and the protection function.

In a constitutional justice system like the Portuguese one, the most important operative dimension of the principle in terms of the latter’s justiciability is the one regarding its dimension as an element that helps to interpret and functionally delimit the constitutional norms governing competence with a view to rationalising the exercise of the state’s functions. In this positive dimension of the principle, what is at stake is the ordering of the state’s functions and thus the schema for the relationships between the competences, tasks, functions and responsibilities of the entities that exercise sovereignty under the Constitution.

The Court felt it obvious that an act of a legislative nature can revoke an act of a regulatory nature, in accordance with the hierarchy of normative sources. In the space that is left free by legislative acts, the government has the competence to decide what the content of the regulatory act required to ensure the proper execution of the law should be. This is a specific administrative competence that pertains to the government. Where this regulatory administrative competence is concerned, the Assembly of the Republic can exercise its oversight competences, but must respect the separation between entities that exercise sovereignty, and cannot usurp the functions that pertain to the government – namely those involving directing the state’s direct administration.

The instrument with which the Constitution enables the Assembly of the Republic to ensure the primacy of its legislative competence and exercise its powers of oversight and control is the ‘institute’ of the parliamentary consideration of legislative acts for the purpose of determining whether they should be amended or cease to be in force, which must be exercised under the circumstances in terms of time and form and with the effects that are provided for in the Constitution.

The Court did not pronounce itself on the question of the violation of other constitutional principles, particularly that of trust inherent in the principle of a democratic state based on the rule of law, which was allegedly breached in the present case. The Court said that once the conclusion had been reached that both the norms which required the government to approve a new teacher performance appraisal model, and the norm which revoked the current Regulatory Decree, violated the principle of the separation and interdependence of powers, it was unnecessary to analyse any other grounds advanced in the request, inasmuch as the unconstitutionality of the remaining norms contained in the Decree was consequential.

Supplementary information:

Albeit the Court was unanimous with regard to the norm that required the government to implement a new teacher performance appraisal model, the Ruling was the object of partial dissent on the part of four Justices. In addition to the dissenting opinions of the latter, there are two others whose authors were of the view that in addition to considering the grounds that formed the basis for the Ruling, the Court should have considered the question of whether a law can do anything and everything – i.e. whether Parliament can do anything it wants, under any circumstances. The Justices opined that a violation of the separation of powers occurs because there is an essential core of the power that pertains to the executive branch, in its role as the power to govern, which cannot be invaded, thereby making the executive power incapable of answering for a policy it did not choose. As such, the problem posed by the parliamentary act under review in the present case was not a problem of the hierarchy of norms, nor one of delimiting the legislative function with regard to the administrative function – if for no other reason than the fact that the Justices were of the view that there is no reserved administrative power. They felt that the question of substance was instead how far the parliament can go in relation to the government.

Cross-references:

Rulings nos. 461/87 (16-12-1987), 1/97 (8-01-1997), 24/98 (22-01-1998).