Portuguese Constitution Research Articles

Accessibility Technical Considerations Sports Venues And Facilities

In the current context, promoting access to sports places and facilities is a necessary condition for exercising fully the citizenship rights guaranteed in the Portuguese Constitution regarding access to sport. Over the years, we have discovered that successive measures taken in the area of accessibility to sports spaces and facilities have not resulted in significant changes in the existing framework, with a significant percentage of sports spaces and facilities that do not meet the minimum accessibility conditions and that place various limitations on citizens with limited or reduced mobility who legitimately intend to use them. The goal of this study is to direct students of the degree course in sports management at the Autonomous University of Lisbon and professionals in the field of sport to reflect on the theme "Technical considerations of accessibility to sports spaces and facilities" based on sustained practices and a set of variables related to: Accessibility for all; accessibility in relation to sports spaces and facilities; disability in relation to sports spaces and facilities; future interests and difficulties. There was a generalised thinking based on age, gender, household, residence, and nationality, according to the sociodemographic analysis. We employed a quantitative descriptive methodology. The findings revealed that "the promotion of accessibility is an essential condition for the full exercise of citizenship rights" when confronted with "the space, the building, the furniture, the urban equipment, should be able to be experienced by anyone, including people with reduced mobility or disabilities" It had a considerable impact on the perception of the topic under consideration. Keywords: Sport; Accessibility; Sports Spaces and Facilities. JEL Codes: D71, D91, I14, I31, Z2.

POLÍTICAS PÚBLICAS HUMANITÁRIAS PORTUGUESAS: DA VISÃO DAS CONDICIONANTES À BREVE VISÃO DA PRÁTICA ASSOCIADA AOS COSTUMES

This article aims to an integrative literature review of humanitarian public policies in Portugal to understand how these policies are developed and implemented in the country. To this end, we will analyze the European Union and Portugal regulatory legislation, which encompasses the topic from different perspectives, to provide a sufficiently comprehensive view of the subject. Humanitarian public policies have been gaining prominence in the international scenario, especially given the frequency and intensity of natural disasters and humanitarian crises. In Portugal, these policies are influenced by such regulatory documents, from EU legislation to the Portuguese Constitution, encompassing relevant laws and culminating in the implementation of strategies, plans, and government programs with their humanitarian characteristics and approaches to resilience and humanitarian action determinants, permeating the practice of action related to the country's customs. The literature review conducted in this article seeks to contribute to the understanding of humanitarian public policies in Portugal and provide a general overview and support for academic debate on the subject.

The Portuguese customary electoral constitution: the election of representatives to the ancient cortes

ABSTRACT The historic Portuguese Constitution guaranteed the electoral autonomy of the municipalities as part of the prerogatives and freedoms that the monarch swore to respect at the beginning of each reign. Thus, the election of representatives to the old cortes (parliament) was based on traditional, unwritten conventions and practices. The lack of general legislation gave rise to a customary or unwritten electoral constitution, in the true sense of the word. This article deals with the electoral basis that each municipality formed to elect its representatives each time the cortes were convened, based on the king’s letters of convocation and the municipal electoral minutes that have survived to the present day.

The rise of Porto artist collectives and the birth of democratic collaboration over fifteen years of daily art practice

ABSTRACT This article documents and analyses a phenomenon of collectivisation involving approximately forty artist collectives that emerged in Porto, Portugal between the late 1990s and 2013, with a particular focus on how horizontal collectivism led in turn to new models of citizenship and participatory democracy. I present an overview of historical precedents concerning certain aspects of this phenomenon, especially in relation to Portugal’s relatively recent (1974) end to forty-eight years of dictatorial rule. Artists came to play an important role in developing and spreading the democratic values that were subsequently enshrined in the Portuguese constitution of 1976. Recently, the Covid-19 pandemic came to prove that the revolution’s legacy is still alive, and the constitutional principles are still orienting the Portuguese artists. Today’s growing neoliberalisation of democracy raises the question of how the Portuguese constitution remains the main guarantor of the citizen’s most fundamental right to participatory democracy and to be more active citizens.

The Portuguese law on Surrogacy – Promises and Perils

After years of intense debate, on August 22, 2016 the Portuguese Assisted Reproductive Technologies (ART) Law was altered, and altruistic gestational surrogacy was made legal in Portugal. Although the journey has not been easy since then. The Portuguese Constitutional Court was called twice (in 2018 and 2019) to analyse the legal provisions of the surrogacy legal regime. The judges concluded that altruistic surrogacy was not in violation of the Portuguese Constitution, although the legal solution, and later amendment, was, in some of its provisions, unconstitutional. The judges found that the law needed to guarantee the right of the surrogate to regret the arrangement after the child was born. Considering the rulings of the Constitutional Court, surrogacy contracts in Portugal are not enforceable and the surrogate can, after the child is born, revoke her consent and become the legal mother of the child. The Parliament altered the Law accordingly in 2021, although, for the time being, it is still to be regulated.
 Using qualitative methods, including legal, and bioethical analyses and a review of literature, this paper introduces an overview of the Portuguese legal solution on surrogacy and discusses, in particular, the right to regret of the surrogate after the child is born. The conclusion is that the Portuguese law on surrogacy does not yet have a clear and needed position about who are, in fact, the parents or mother(s) of the child in contested surrogacy contracts if the surrogate regrets the arrangement and revokes her consent after the child is born.

Democratic governance and modernity in 21st century co-operatives in Portugal: Frontiers and balances

The legal framework applying to cooperatives is not harmonised in the European Union. Diverging from other legal systems, the Portuguese legal system made the co-operative principles part of the Portuguese Constitution, giving them a mandatory nature, protecting the co-operative identity.As evidenced in the PECOL project, demutualisation, digital transition, diversity, the professionalisation of management, transparency, prevention of conflicts of interest and accountability, investor members and plural voting are the main challenges addressing the principle of democratic member control in the 21st century. The article concludes that these challenges must be addressed in the framework of the principle of democratic management of members. Plural voting can be a response to the heterogeneity of members and that the admission of investor members can contribute both to the professionalisation of co-operative management and co-operatives' sustainability. Portuguese regulation preserves the essential core of the principle of democratic member control.The article's main contribution is to disseminate internationally a legislative experience of hard law regarding the nature of the co-operative principles. It conveys the message that this political-legislative option has not slowed down the adaptation of co-operatives to new challenges.

Promoting Accessibility and Inclusion: Analyzing Good Practices in Accessible Tourism in the Autonomous Region of Madeira

The concept of Accessible Tourism recognises that tourism is for everyone and, therefore, everyone should be able to enjoy tourism products and services. This concept not only translates into benefits for tourists, as it provides an improvement in the quality of life of the local population, who benefits from the creation of improved accessibility conditions. Promoting accessibility is a fundamental condition for the full exercise of citizenship rights enshrined in the Portuguese Constitution. Although there is growing awareness of the need to make spaces more accessible, translated into compliance with European guidelines and legal standards, there are still numerous gaps and examples of exclusion. The measures which are necessary to guarantee the enforcement of rights can be operationalised based on examples of good practices. In this sense, this paper analyses good practices of inclusion implemented in the Autonomous Region of Madeira. Even though these measures promote inclusion, it is still verified that they are insufficient to respond to the needs of citizens with disabilities, limitations or incapacity. Even so, it should be noted that Madeira has been increasingly strengthening its offer as an accessible

Transformation by Decree? A (Brief) Reflection on the ‘Directive Constitution’ (Constituição Dirigente) in Brazil

Coined originally by the great constitutional law scholar José Gomes Canotilho in the aftermath the post-revolutionary Portuguese constitution of 1974, the concept of a constituição dirigente (‘directive constitution’) has found some expression in the Brazilian (re-democratization) constitution of 1988 (CF88), which contains a number of injunctions and mandates aimed at ‘directing’ (primarily) the legislature towards the enactment of a wide-range of economic, administrative, and also civil rights matters. In doing so, the CF88 did not only purport to protect the new democratic system from falling (back) into autocracy but it also entrenched a deeply (social) transformative agenda in the constitutional telos. In the unfolding constitutional reality since the CF88’s entry into force, the courts, and especially the apex court (STF) sought to interpret and concretize these ‘directive’ elements in a continuous ‘dance’ with and around an often recalcitrant legislature and (to a lesser degree) executive. Many elements have been modified or watered down, though some have been upheld and realized, not least on account of a ‘neo-constitutionalist’ turn in Brazilian constitutional doctrine that has led the way for an unprecedented (self-)empowerment of the judiciary vis-à-vis the other branches of government. This has, arguably, transformed the original ‘directive constitution’ into a ‘directive constitutionalism’ led by the courts that has produced ambivalent outcomes.

Liberalismo y derechos humanos en la Constitución de Cádiz de 1812 y en la Constitución portuguesa de 1822. Historia comparada

This article appeals to the convenience of reinforcing the use of comparatism as a methodological tool to better understand the history of early Portuguese and Spanish liberalism and their proven interactions. Based on comparative history and “discourse analysis (DA)”, considering secondary sources and primary legislative and media sources, we enter into the legal and historiographical debate on the impact of the Spanish Constitution of 1812 on the Portuguese Constitution of 1822, of which we are celebrating the bicentenary this year, and reinterprets and qualifies the role played by the introduction of a Declaration of Human Rights – absent in the Cadiz Constitution – in the Portuguese Constitution, minimizing the differential burden that historiography has tended to attribute of this piece of normative discourse on human rights from both the analytical and sociopolitical points of view.

The impact of the EU economic governance in Portugal

This article discusses the main changes introduced to the Portuguese labour market following the adoption of the Memorandum of Understanding of 2011. The intent behind the Memorandum's demands was to reduce the costs related to employment contracts, to expand both internal and external flexibility, and to relaunch collective bargaining under a new and more decentralised framework. However, several measures ended up being at odds not only with the Portuguese Constitution, but also with ILO Conventions and the (Revised) European Social Charter. We address the changes to wage policies, working time, employment protection legislation, and collective bargaining, which gave way to a new ‘flexibility-oriented’ labour relations model, characterised by a global reduction of labour protection levels. We argue that not only were these measures unable to fix the problems of the Portuguese labour market, but they also had crippling effects on social rights in general and, most particularly, on workers’ rights. Moreover, despite the overcoming of the economic crisis, as well as the changes to the political scene, the most significant alterations were maintained. This demonstrates that bailout reforms leave their mark, particularly when they correspond to measures previously under discussion and when their implementation is supported by external pressures.

Seeking the Legitimation of Mainstream Journalism: A Portuguese Case-Study

ABSTRACT This article consists in a case-study of the Portuguese site Notícias Viriato (NV), which has controversially been registered by the Portuguese Regulatory Authority (ERC) as a ‘general information’ site, officially recognised as drawing close to mainstream journalism in a context of accusations of rightwing bias. We will argue that NV’s registration with ERC marks a new phase for the far right in the Portuguese political and journalistic spheres, due to grounding legitimation in the Constitutional right to freedom of expression. By drawing close to officialdom, this news site bypasses the inexistence, in the Portuguese juridical framework, of advocacy journalism. According to the Portuguese Constitution, partisanship excludes journalistic activity, with journalism being of an ‘informative’, and therefore objective, nature. While the dangers of partisanship are recognised, the existence of an advocacy continuum within journalism are ignored. In a digital era in which journalistic objectivity has ceased to be the norm, the labelling of journalism as ‘general information’, defined against ‘partisanship’, is incapable of responding to the challenges posed by alternative media in redefining professional journalism. This demonstrates the need to update both the Portuguese Constitution and prevalent media legislation to accompany changing times.

The Portuguese Road to Neoliberalism (1976–1989)

The Portuguese constitution, passed in April 1976, considered the nationalisations undertaken after the Carnation Revolution to be ‘irreversible’, prescribing a development model based on state planning. Changes made to the constitutional text, in 1989, allowed for a privatisation programme that curtailed government intervention and reinforced market provision. This mirrored a previous shift in the public sphere. Whereas political debate in 1976 was mostly centred on state-led development models, the next decade witnessed the rise of a pro-market approach. Two crises of the balance of payments encouraged a growing number of economists, businessmen, journalists and politicians to argue for the need to revise the constitution, enhancing the role and scope of markets. This article focuses on the rise of a neoliberal intellectual field in Portugal between 1976 and 1989, analysing its efforts to overcome the legacy of the Carnation Revolution and build a competitive market order in a semiperipheral context.

O Princípio da igualdade na Constituição da República Portuguesa de 1976 – a concretização (?) do princípio da igualdade na participação política

This text reproduces the report presented, for the purposes of final evaluation, at the I Post-Graduate Course in Equality Law, organized by the Private Law Research Center of the Faculty of Law of the University of Lisbon. The Portuguese Constitution defines and establishes the principle of equality as the basic principle of our legal system, and its application is reflected throughout the constitutional text, in the most diverse areas. The law of parity seeks – or intends – an implementation of this principle in political participation, and it must be questioned whether and to what extent such implementation takes place.

‘Cut and Paste’ Constitution-Making in Timor-Leste

Abstract When Timor-Leste (re)gained its independence in 2002, it appeared to be a triumph of international state building. In a relatively short period, a massive United Nations (UN)-run mission had purportedly built the institutions of a liberal democratic state. State building took place in a highly globalized context; there was a large UN presence as well as international non-governmental organizations, academics, journalists, and activists. In addition, many exiled Timorese leaders returned to play a role. While constitution making was central to state building, there are questions about the legitimacy, effectiveness, and stability of the Timor-Leste Constitution and the state institutions that it created. This article focuses on three aspects of the interplay between the global and local during the constitution-making process. First, it considers the relationship between the UN and Timorese elites, finding that the UN adopted a hands-off approach that created space for certain elites to dominate and politicize the process. These returning exiles engaged in ‘cut and paste’ constitution making, with much of the Timor-Leste Constitution based on the 1989 version of the Portuguese Constitution (modified to an extent by the 1990 Mozambican Constitution). Second, it analyses whether the constitution-making process was a true exercise of the constituent power of the Timorese people and concludes that the dominance of certain elites contributed to social division. Third, it discusses the significance of public participation, noting that minimal participation has meant that the Constitution does not reflect the views of most Timorese people. This is even though the principle of ‘popular sovereignty’ implies that, at least in states that aspire to be liberal democracies, people should be given the opportunity to participate in making their state’s Constitution. It concludes by arguing that the Timorese people missed the opportunity for their Constitution to define the political bond between them and embed state institutions in the local context.

A extradição de Portugal para o Brasil de cidadãos portugueses naturalizados

Resumo A extradição de nacionais constitui matéria prevista e regulada tanto na Constituição brasileira, como na Constituição portuguesa. Dos comandos constitucionais que a regulam resulta para o Brasil uma proibição absoluta de extradição dos seus cidadãos natos, daí derivando para Portugal, em virtude do princípio constitucional da reciprocidade, uma proibição de extradição para o Brasil de portugueses originários. Fica, por isso, em aberto, apenas a questão da extradição dos cidadãos que tenham obtido a nacionalidade por naturalização. É essa a temática objecto deste estudo, que avalia a possibilidade de o Estado português responder positivamente a pedidos de extradição de portugueses naturalizados que lhe sejam dirigidos pelo Brasil. No tratamento do problema, convoca-se o princípio da reciprocidade, a Convenção de Extradição da CPLP, a Convenção de Viena sobre o Direito dos Tratados e os princípios da igualdade, universalidade e ordem pública, concluindo-se pela impossibilidade de extradição de portugueses naturalizados.

Constitutional Narcissism on the Couch of Psychoanalysis

Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each State’s quantum of constitutional change seems to be quite different. One can wonder how two neighbour States, that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago, opted for such dissimilar constitutional designs. However, appearances are often misleading and an effort should be done to unveil this curious mismatch. Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries? Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars or the judiciary. Therefore, the vexata quaestio remains unanswered: given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialised outside of the constitutional framework)?

The right to social security in the Portuguese constitution

The right to social security in the Portuguese constitution

The 2015 legislative elections in Portugal: A constitutional analysis

Abstract
 The 1976 Portuguese Constitution implemented a hybrid government system known as semi-presidential. This modality combines characteristics from the two more conventional systems: the presidential and the parliamentarian. In this context, the selection of the Prime-Minister does not directly come from the voters. Instead, it results from the Presidential nomination bearing in consideration the results of the legislative elections. Furthermore, it also lacks the majoritarian support from the National Parliament. Hence, the government becomes an organ political accountable before the President and the Parliament. The current Parliament was elected on October 4, 2015. Yet, the electoral results were striking, as they allowed more than one possibility for the formation of the Portuguese government, including post-electoral partisan agreements, which was an unprecedent situation in the country. The present paper aims to describe the electoral process referred to above, through factual analysis and its constitutional framework.
 Keywords: Constitution, elections, government, politics, Portugal.

Parliamentarianism and anti-parliamentarianism in Portugal. The voices of the republicans, 1910–26

SUMMARYIn Portugal the republican regime broke ties with the monarchy, advocating the need to reassume the national principle, as well as the secularization of its foundations and of the state itself. With the establishment of the new parliamentary republic in 1910 and the debate between republic and monarchy, the supporters of parliamentarianism saw a rupture in the composition and relationship between the powers foreseen in the constitutional charter of 1826, which gave more power to the king during the period of the constitutional monarchy. This made republicans grow closer to the constitution of the French Third Republic, the Brazilian constitution of 1891, the 1812 constitution of Cadiz and the 1822 Portuguese constitution, owing to the fact that these were radical liberal constitutions that conferred national sovereignty. The republicans put forward various arguments both to defame and to defend parliamentarianism. Nevertheless, as in the constitution of 1822, the republican constitution of 1911 stipulated that the congress (the Portuguese Parliament) would be, in theory, the only body that could regulate the political guidelines of the republic.

30, 40, 50. 30 Anos de Integração Europeia; 40 da Constituição Portuguesa; 50 Anos dos Pactos Internacionais da ONU. O que fizeram pelos nossos direitos?

Neste texto, apresentamos uma perspectiva breve sobre a interconexão de três grande marcos para os direitos humanos em Portugal: a integração nas Comunidades Europeias, há trinta anos, em 1986; a Constituição Portuguesa, aprovada em abril de 1976; os Pactos Internacionais dos Direitos Civil e Políticos e dos Direitos Económicos, Sociais e Culturais, adotados em 1966.https://doi.org/10.14195/1647-6336_15_5