Venice Commission - Report on Bicameralism
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1.Has the country ever had a bicameral parliamentary (or congressional) system in the past? If so, in which period? Why was it decided to change into a unicameral system? Is there a public debate about changing to a bicameral system? What are the terms of the debate?
The Portuguese State exists as an independent entity since 1140, in historical continuity that was never interrupted, even during the Personal Union – the same King – with the Spanish Crown (1580-1640).
2.What is the population of the country? What is its size?
According to the last periodic census of the INE (National Institute of Statistics) - data referred to April 19, 2021 - the population resident in Portugal was 10,343,066 inhabitants.
3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed
a) Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people committed to building a free, fair and solidary society. (art. 1 CRP)
4.How many members are in the lower house?
Under constitutional terms, the Assembleia da República shall have a minimum of one hundred and eighty and a maximum of two hundred and thirty Members, as laid down by electoral law (artº 148 CRP). Currently, the Assembly of the Republic is composed of 230 Deputies.
Portugal
In this long time, different political forms followed each other – from traditional monarchies, historically characterized, to the democratic Republic.
There were in Portugal, in the Middle Ages, Assemblies [Cortes], similar to Parliaments or «General States», that integrated the nobility, clergy and representatives of municipalities [organizations and institutions of local power]; the most relevant moments in overcoming serious political crises occurred in 1385 and 1640, when the Cortes elected and acclaimed the King.
In absolutist regimes of the 17th and 18th centuries, the Cortes were no longer summoned.
2.. In 1820, with the first liberal revolution, modern constitutionalism emerged in Portugal. The first political Assembly, in the modern sense, was the Constituent Assembly of 1821-1822 [Cortes Gerais Extraordinárias e Constituintes da Nação Portuguesa] composed by elected deputies.
The Constitution of 1822, which resulted from the work of the Constituent Assembly, created a Parliament with a single Chamber, elected by direct suffrage tending to be universal.
The Constitution of 1822 was short-lived: signed on September 23, 1822, it only lasted until June 4, 1823, as result of the counter-revolutionary movement on May 28, 1823; but on September 10, 1836, the validity of the Constitution of 1822 was re-established, even if in ambiguous terms, until the Constitution of 1838.
3. The Constitutional Charter of 1826 [Carta Constitutional da Monarquia Portuguesa], was a Constitution granted [dada] and decreed by the King on April 29, 1826, and was based on the idea of reconciling the principles of national sovereignty with the monarchical principle, and therefore with broader powers for the King in a compromise between liberal-parliamentary participation and the monarchical principle.
The Constitutional Charter of 1826 attributed legislative power to the Cortes (Parliament), composed by two Chambers, in a bicameral system: the Chamber of Peers [Câmara dos Pares] and the Chamber of Deputies (Câmara dos Deputados]; the attributions are shared between the Cortes Gerais, integrating the two Chambers, and there were specific attributions to the Chamber of Deputies and to the Chamber of Peers (articles 13 to 33; 34 to 38 and 39 to 44).
The Constitutional Charter of 1826 proceeded, with the bicameral distribution, to a share of political power, satisfying sectors of the nobility that had been marginalized in the Constitution of 1822, in a way somehow reactive to directly representative constitutionalism.
The Chamber of Deputies was elective and temporary (article 34); the Chamber of Peers was composed of lifetime and hereditary members [Pares], appointed by the King without a fixed number (art. 39), plus the Peers added by their own right by birth (Art. 40) and Peers in their right due to the position they held (Decree of April 30, 1826).
The justification for the existence of the Chamber of Peers, according to sources at the time, was based on the idea that it should be «an assembly less subject to external influences and passions, more stable, more reserved, less disposed to changes and innovations», which would mitigate « the ardor of the popular chamber when intempestive», and would serve as a counterbalance and corrector of the Chamber of Deputies of popular election; the Chamber of Peers would, at least ideally, provide a counterpoint to partisans and tribune struggles, with a “calming” effect of harmony between the different sensibilities and parties colors.
The choice of deputies to the Cortes Gerais was made through indirect elections (election of Parochial Assemblies by active citizens - provincial voters - which after elect deputies, representatives of the Nation (art. 63)); the criterion for election was censitário (through census: to be a renter, taxpayer, or having a minimum annual revenue as a basis for exercising political rights), in addition to cases of active electoral incapacity (article 64).
In the exercise of legislative power, and in the procedure for approval of laws provided for in the Constitutional Charter of 1826, the two Chambers participated, both in the right of initiative and of proposal, and in the discussion, which was held in each Chamber; the constitutional text regulated in detail the procedure and the way to resolve divergences (art. 51 et seq).
The existence of a broad census criterion for the election of deputies, along with the existence of "Peers in their own right", as well as the heredity of the Peers, raised divergences and criticisms from liberal currents of opinion, giving rise to strong political divisions regarding the nature of, and particularly on the composition and on the use by the King of the powers to appoint Pares do Reino without fixed number.
The Constitutional Charter was therefore subject to some changes; the Additional Act of June 5, 1852 (1st Additional Act) established the direct election of deputies, lowered the census requirements for voters, and later laws extended the scope of suffrage.
The Câmara dos Pares was substantially changed by the Additional Act of July 24, 1885 (2nd Additional Act) and became composed of Life Peers, appointed by the King (100); elective Peers (50), and de jure Peers, admitting heredity on a provisional basis; by the Additional Act of 1895 (3rd Additional Act) the elective Peers were suppressed.
The Constitutional Charter, despite strong criticism, divergences, cleavages and the various political crises that marked the Portuguese XIX century, was the constitutional text in force for the longest time in Portugal (1826-1828), ( 1834-1836) and (1842-1910).
4.. In 1936, following the events that History marks as the «September Revolution» (September 10, 1836), a Constituent Assembly prepared and approved a new Constitution that came into force on April 4, 1838 – the Constitution of 1838.
The Constitution of 1838 was a document of compromise between defenders of national sovereignty and the Constitution of 1822, and supporters of the constitutional monarchy based on the monarchical principle and the Constitutional Charter of 1826.
The Constitution of 1838 emerged as a Constitution agreed upon between the Cortes and the Queen, as revealed by the Queen's "Final Declaration of Acceptance and Oath".
The Constitution attributed legislative power to the Cortes, with the King's Sanction, and the Cortes were integrated by two Chambers: the Chamber of Senators [Senadores] and the Chamber of Deputies, in a bicameral system as it was in the Constitutional Charter of 1826 (art 36).
The deputies and senators were elected by direct suffrage (art. 71), but depite that restrictions on access to active electoral capacity have diminished, the conditioning census of an amount of annual income «from real estate trade, capital, industry or employment», as well as some electoral disabilities («excluded from voting»), many limitations to the right to vote remained (art 72 and 73).
The Chamber of Senators was elective and temporary, and not for life or hereditary; the senators were appointed by the King, and the number of senators would be at least equal to half of the deputies (articles 58 and 59).
The Constitution, however, established for senators stricter eligibility rules (art. 77) regarding age (thirty-five years), census condition (annual income in an amount far higher than that established for deputies), or hold high positions (catholic ecclesiastics, and, to the highest degree, judicial, academic, military and diplomats).
The Constitution of 1838 assigned the legislative power to the Cortes, composed by two Chambers; the attributions were, as in the Constitutional Charter of 1826, shared between the Cortes Gerais (art. 37) integrating the two chambers, and the own competences of each Chamber (art 53 to 57, and 58 to 63).
As in the Constitutional Charter of 1826, in the Constitution of 1838 both Chambers participated in the legislative procedure in parity (arts. 64 to 70), both in right of initiative or proposal, as well as in the discussion which took place in sessions of each chamber; the constitutional text regulated the procedure and the way to overcome disagreements in acceptance or rejection of proposals; the right of each Chambers to proceed, by means of commissions of inquiry, with the examination of any object within its competence was innovative (article 39).
The completely elective composition of the Senate constituted a matter of cleavage between the political forces that sought a constitution of compromise, but the ambiguity remained in two moments of the text itself: the constitutional provision of articles 58 and 59 was weakened by the provision of the « transitory article» at the end of the document, that provided that «the ordinary Cortes that first meet […] will be able to decide whether the Chamber of Senators will continue to be composed by simple popular election, or whether in the future the Senators will be chosen by the King on the basis of triple list proposed by the constituencies».
The Constitution of 1838 was short-lived and, therefore, was not significant on portuguese constitutional history: entered into force on April 4, 1838, it ended with the coup d'état on January 27, 1842, which restored the Constitutional Charter of 1826, keeping this the country's fundamental law until October 5, 1910.
5.. The Constitution of 1911, voted on August 21, 1911 by a National Constituent Assembly, was drawn up following the ruptures determined by the republican revolutionary movement of October 5, 1910, which abolished the Monarchy and proclaimed the Republic.
The Constitution of 1911 can be considered as the exponent of portuguese democratic liberalism, and despite the radical “corpus” of social support base of republicanism, did not reject the jusnaturalist and jusrationalist heritage of the great declarations of rights, in a formula that was already in the Constitution of 1822.
In the structure of political powers, the Constitution of 1911 instituted a bicameral parliamentary body [Congresso], composed by two Chambers: the Chamber of Deputies and the Senate, elected by direct suffrage of the voting citizens (article 8); the Deputies were elected for three years, and the Senators were elected for six years, but every time there were general elections of Deputies, the Senate would be renewed in half of its members. The organization of the electoral colleges to the two Chambers and the election process were the object of a special law (article 8, single par.).
The number of Senators was fixed in the Constitution by reference to the administrative division: three senators for each district and one for each overseas province (territory) (art. 9).
The Congress had, namely, legislative, financial, electoral powers (election of the President of the Republic), powers for political control of the Government, to authorize the declaration of war, and to declare a state of siege, or constitutional revision (art. 25, 1 to 25).
The Chamber of Deputies and the Senate had equal legislative powers; but the Constitution provided for some exclusive competences of each of the Chambers (articles 23 and 25).
The parliamentary issue – single chamber or bicameralism – was the subject of extensive discussion in the Constituent Assembly. The defenders of the solution that adopted the model of two Chambers were close to the argumentation that justified the conservative role of the Chamber of Peers in the past; a second Chamber representing the social aggregates - the intellectual forces of the country, the forces of public wealth, farmers and workers, being the direct and immediate representation of public wealth; one Chamber would represent the direct force of the people, another would represent the direct force of social interests; one would be the expression in the «Vote Nation», another the possible expression of the «Practical Nation».
The deputies who were opposed to the bicameral solution argued on the basis of the usefulness of the second Chamber: if the Chambers were constituted by suffrage and in the same way, one of them would be useless; if the second Chamber were formed in other ways, by wealth, by the splendor of birth, by reputation or by age, it would become an aristocratic body against democratic values and principles.
The Constitution of 1911 was in force until the military movement of May 28, 1926, that started a political period of military dictatorship.
6.. On March 19, 1933, the Political Constitution of the Portuguese Republic (Constitution of 1933) was approved through a Plebiscite, which established the political and legal basis of the Movement of May 28, 1926, institutionalized a political regime («Estado Novo») with strong authoritarian marks; the Constitution enunciated formally several fundamental rights, but political freedoms were scarce or non-existent; the most relevant rights, freedoms and guarantees were submitted to the regime that would be provided for by law, so degrading constitutionality into mere legality, and freedom of political choice had no space given the prohibition of political parties, with the consequent absence of pluralism in parliamentary representation.
In the constitutional system of 1933, the parliamentary body was the Assembleia Nacional (National Assembly), and the only one directly elected after the 1959 constitutional revision, which changed the mode of election of the President of the Republic, from direct election by suffrage to indirect election through restricted college.
The Assembleia Nacional was a unicameral body, elected by direct suffrage of the citizens, with a four-year mandate (article 85); given the political nature of the regime, there was no basis or sense for a bicameral system.
The Constitution instituted a body to function alongside the National Assembly – the Câmara Corporativa (Corporative Chamber), composed by representatives of local authorities and social interests, considered in their fundamental branches of an administrative, moral, cultural, economic order; the way for choosing their members, the composition and the term of office of the members of the Câmara Corporativa were determined by law and not by the Constitution (article 102). The functions of the Câmara Corporativa were merely consultative in nature “on all proposals of law presented to the Assembleia Nacional” (Article 103).
Notwithstanding the extension of the statutory guarantees of deputies to the Assembleia Nacional to members of the Câmara Corporativa (article 89, ex vi article 102, § 3), the function of this Chamber was not that of a second deliberative chamber, but only that of an auxiliary body of the Assembleia Nacional.
The Constitution of 1933 was radically disrupted by the military movement of April 25, 1974; Law nº 1/74, of April 25th, dismissed the political bodies, dissolved the Assembleia Nacional and assigned the respective competences to the Junta de Salvação Nacional (National Salvation Board) emanating from the military movement.
7.. Law nº 3/74, of May 14th defined a provisional constitutional structure for the organization of the provisional political bodies of power, and determined in article 3 that it would be up to the Constituent Assembly to prepare and approve the new Political Constitution.
The Constituent Assembly, elected on April 25, 1975, approved the new Constitution of the Portuguese Republic in a plenary session on April 2, 1976 (Constitution of 1976).
In the Constitution of 1976, the Assembleia da República (Parliament) is a unicameral body, in the tradition of the unicameralism of the Constitution of 1822. The existence of a second chamber, as in Constitutions of 1826, 1838 and 1911, would be unjustified in a unitary, and democratic state of law, the introduction of a second «aristocratic», «corporate» or «federal» Chamber being out of the question; a democratic "high chamber" with the same powers and the same legitimation basis as a "lower chamber" would not make sense, would not have the justification traditionally invoked for a second chamber and it would be useless.
[The description of the evolution of the structure of parliamentary bodies in the Portuguese Constitutions was essentially sourced from JJ Gomes Canotilho, Constitutional Law and Constitutional Theory, 7th ed ., Almedina, p. 128-174; and 630-632]
8.. There is currently no public debate, or even expression that deserves special mention, about the unicameral or bicameral nature of parliament, although sporadically there may be some outcropping of the subject: a few months ago, an opinion text linked to a think tank proposed "the discussion of a bicameral system, through the creation of a Senate, whose mission would be to give a sense of stability to the country's fundamental policies and a long-term vision at the level of the legislature and scrutiny of the Government, fulfilling the objectives of reinforcing the representativeness of the territory in the formulation of policies and ensure a more productive intergenerational dialogue".
There was no salient reaction, and in the constitutional revision process that is currently underway there are no proposal about the matter.
Portugal is a democratic state based on the rule of law, the sovereignty of the people, plural democratic expression and political organization, respect for and the guarantee of the effective implementation of the fundamental rights and freedoms, and the separation and interdependence of powers, with a view to achieving economic, social and cultural democracy and deepening participatory democracy (art. 2 CRP);
The state is a unitary state and the way in which it is organized and function shall respect the autonomous island system of self-government (Madeira and Açores) and the principles of subsidiarity, the autonomy of local authorities and the democratic decentralization of the Public Administration.
The Azores and Madeira archipelagos are autonomous regions with their own political and administrative statutes and self-government institutions (artº 6º CRP).
b) The construction of the portuguese government system has elements of parliamentary and presidential regimes.
The following are features of a parliamentary regime:
- Government autonomy, chaired by a head of government (prime minister), with institutional autonomy and its own powers (articles 110 and 182 CRP: The President of the Republic, the Assembly of the Republic, the Government and the Courts are entities that exercise sovereignty; The Government is the entity that conducts the country's general policy and the senior organ of the Public Administration);
- Ministerial responsibility: political responsibility of the government before the parliament; initiative of the Assembleia da República through a “motion of censure” (art. 195º, f) CRP), or through initiative of the government itself through a “motion of confidence” (arts. 193º and 195º, f), CRP) ;
- Ministerial referenda: the nature of the institute of the referenda (counter-signature) that the President of the Republic and the government share, means a political commitment regarding certain acts, such the Acts that the President of the Republic undertakes under the terms of Articles 133(h), ( j), (l), (m) or (p), 134(b), (d) or (f) or 135(a), (b) or (c), require counter-signature by the Government; the absence of the counter-signature renders the act legally nugatory» (artº 140º CRP).
The system also has traits of a presidential regime:
- Election of the President of the Republic through direct, universal and secret suffrage (artº 121º CRP: The President of the Republic is elected by the universal, direct and secret suffrage of Portuguese citizens who are registered to vote in Portuguese territory and, in accordance with the following paragraph, of Portuguese citizens who reside abroad – nº 1; The law shall regulate the right to vote of Portuguese citizens who reside abroad, to which end it must pay due regard to the existence of ties that effectively link them to the Portuguese community – nº. 2);
- Right of political and legislative veto: although the President of the Republic does not have legislative initiative, he can oppose through a political veto the laws voted by the Assembleia da República (artº 136º CRP: Within a time limit of twenty days counting from the receipt of any decree of the Assembleia da República for enactment as a law, or of the publication of the decision in which the Constitutional Court refrains from pronouncing the unconstitutionality of any norm contained therein, the President of the Republic must enact the decree, or exercise the right of veto and send a message setting out the grounds for doing so and requesting that the legislative act be reconsidered- nº1; If the Assembleia da República confirms its vote by an absolute majority of all the Members in full exercise of their office, the President of the Republic must enact the legislative act within a time limit of eight days counting from its receipt – nº 2).
The Constitution also shows traces of a parliamentary-presidential model:
- Dual responsibility of the Government before the Assembleia da República and before the President of the Republic (article 190º CRP: The Government is accountable to the President of the Republic and to the Assembleia da República; and 191º CRP: The Prime Minister is accountable to the President of the Republic and, within the ambit of the Government's political responsibility, to the Assembleia da República– nº 1; Deputy Prime Ministers and Ministers are accountable to the Prime Minister and, within the ambit of the Government's political responsibility, to the Assembleia da República – nº. 2);
- Right to dissolve the Assembleia da República ; (artº 133º, al.e): In relation to other entities and organs the President of the Republic has the competences: e) Subject to the provisions of Article 172 and after first consulting both the Council of State and the parties with seats in the Assembleia da República, to dissolve [the] Assembly); The presidential dissolution power is not discretionary and there are time limits for its exercise (article 172º CRP: The Assembleia da República cannot be dissolved during the six months following its election, during the last six months of the President of the Republic's term of office , or while a state of siege or a state of emergency is in force – nº 1; Failure to comply with the provisions of the previous paragraph renders the dissolution decree legally nugatory – nº 2).
The constitutional doctrine (eg, JJ Gomes Canotilho, Direito Constitucional , cit., p. 597-610) considers the form enshrined in the Constitution of 1976 as a «mixed presidential parliamentary government», where elements that characterize the parliamentary regime and the dimensions of the presidential regime converge.