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Portugal's Legal Structure

General Introduction:

     This site is designed to familiarize individuals with the structure of the Portuguese State.  Specifically, this website seeks to educate its readers on the four branches of the Portuguese government.  The four branches discussed are: the Presidency, the Prime Minister and Council of Ministers (Government), the Assembly of the Republic (Parliament), and the Judiciary.  However, before delving into the branches of government, a brief historical synopsis is needed. 

I.                       History

7000 B.C.              Hunting and fishing tribes populate the valley of the Tagus River in the Iberian Peninsula.

2000 B.C.              Different cultures in various regions of the Iberian Peninsula emerge among the Stone Age inhabitants.

1500 –

1000 B.C.              During this time, various groups such as the Ligures and the Iberos colonize the Iberian Peninsula.

1100 B.C.              The Phoenicians arrive on the west coast of the Iberian Peninsula in search of metals and found trading posts.

700 –

500 B.C.                Successive waves of Celtic peoples from central Europe invade the western part of the peninsula.

600 B.C.                The Greeks arrive and found several colonies.

400 B.C.                The Carthaginians replace the Phoenicians and close the Straits of Gibraltar to the Greeks.

200 B.C.                The Carthaginian occupation lasts until the defeat of Carthage by the Romans.

406 A.D.                Germanic peoples consisting of Vandals, Swabians, and Alans, a non-Germanic people of Iranian heritage, invade the Iberian Peninsula.  Lusitania, the Roman administration, disappears.

415 A.D.                With a majority of the peninsula outside their control, the Romans hire the Visigoths, to restore Rome's power.

700 A.D.                The Iberian Peninsula falls under Muslim domination.

1000 A.D.              The Golden Age of Muslim domination ends when local nobles, begin to carve up the Muslim territory into independent regional city-states; Christian re-conquest begins.

1000 –

1127 A.D.              Lusitania (the part of the Iberian Peninsula today referred to as Portugal) was divided into several regions, and the feudal system established.

1128 A.D.              Afonso Henriques gains control of the area known as Portucalense, or Portugal, as it is referred to today.

      The information for this timeline was obtained from the following source:        

                              http://lcweb2.loc.gov/frd/cs/pttoc.html#pt0013. 

      Once you arrive at the link listed above click on the following:      

      ORIGINS OF PORTUGAL:  Early Inhabitants,  Phoenicians, Greeks, and Carthaginians,      

      Romanization,  Germanic Invasions,  Muslim Domination,  Christian Reconquest.

      FORMATION OF THE MONARCHY: Afonso Henriques Becomes King.

II.         The Nation State

In the 12^th century, after the defeat of the Muslims, Portugal emerged as a nation state under the rule of King Dom Afonso Henriques.  King Dom Afonso Henriques had control over three quarters of the present day Portugal.  Later, King Afonso III expanded the Kingdom of Portugal southward and established its present day boundaries with the acquisition of Algarve.  During the 13^th century, Portuguese sailors began to explore the African coast and the Atlantic.  However, it was the 15^th century that came to be called the Age of Exploration and Discovery.

The Age of Discovery began with the discovery of Madeira Islands.  This archipelago is situated approximately 550 miles southwest of Lisbon, the capital of Portugal.  Madeira Island consists of these four islands: Madeira, Porto Santo, Selvagens, and Desertas.  The next significant discovery made by the Portuguese was Azores.  The Azores is another group of islands located in the middle of the Atlantic Ocean.  Those islands are: Sao Miguel, Santa Maria, Terceira, Graciosa, Sao Jorge, Pico, Faial, Flores and Corvo.  The current Republic of Portugal encompasses mainland Portugal, Azores and Madeira.  Yet, 15^th century discoveries were not limited to Azores and Madeira.  Portugal’s zeal for exploration led them to Cape Bojador and Cape Verde.  Soon after, by rounding the Cape of Good Hope, Portuguese explorers reached Africa.  Rounding the Cape of Good Hope was crucial for the Portuguese; it gave them their own route to India and the very important spices.  The age of Discovery also paved the way for Pedro Cabral’s discovery and colonization of Brazil.

     In the late 15^th century, Portuguese navigational expertise and the multitude of gold that Portuguese sailors acquired during their voyages greatly improved the Portuguese economy, and for a brief moment Portugal became the world’s richest empire.  This period of wealth did not last long.  Portugal’s economy began to decline in the mid 16^th century. By the end of the 16^th century, Portugal was in a state of flux.   Spain took advantage of this opportunity by invading and conquering Portugal.  However, Spanish rule was short-lived.  Between the years of 1640 and 1668, Portugal successfully gained its independence.  In the 17^th and 18^th centuries, with a majority of its empire lost, Portugal turned its attention to Brazil.  Kings found it difficult to rule during this era because French Revolution ideals were being spread throughout Europe.  Three invasions by the French in 1807, 1808, and 1810 caused Portugal’s royal family to flee to Brazil.  While the royal family was still ruling Portugal from overseas, a group of liberals organized an uprising in Portugal in 1820.  The government was set in the hands of a temporary committee whose task was to organize the first elections and draft a constitution. 

Despite the existence of a temporary committee, the royal family came back from Brazil.  A compromise was struck between the committee and the royal family, and a constitutional monarchy was formed.  It is interesting to note that while a constitutional monarchy was being born in mainland Portugal, Brazil simultaneously obtained its independence.  Yet, the creation of the constitutional monarchy did not dispel the dislike and distrust of the monarchy by Portuguese commoners.  Revolutionary movements spread throughout Portugal, and on October 5, 1910, Portugal proclaimed to be a republic.

The first Constitution of the Portuguese Republic came into effect in 1911.  A period of instability plagued Portugal between the years of 1910 and 1926.  During this period, Portugal had 8 presidents and 45 congresses.  Due to a military coup, a military dictatorship was declared in 1926.  The military dictatorship became an absolutist regime with fascist tendencies.  The military dictatorship was further strengthened by Salazar, a powerful dictator, and the new constitution of 1933.  During the 1960s and 70s, resentful of the military dictatorship and disheartened by the poor conditions in Portugal, thousands of Portuguese emigrated to countries such as France, Germany, and the US.  Those individuals who remained in Portugal continued to be discontented with the social, economic, and political conditions.  Dissatisfaction with the government, and desire for freedom, led to the overthrow of the dictatorship on April 25, 1974 and the birth of the Second Portuguese Republic.  After nearly half a century of dictatorship, democracy was restored. 

The information for this section was obtained from the following sources:

http://www.en.eun.org/vs/history/portugal/pt_history.html,

http://www.geocities.com/Paris/4118/history.htm,

http://lcweb2.loc.gov/frd/cs/pttoc.html#pt0013. 

  Once you arrive at http://lcweb2.loc.gov/frd/cs/pttoc.html#pt0013 click on the following:  

              FORMATION OF THE MONARCHY:  Afonso Henriques Becomes King,  Territorial Enlargement,

               Settlement and Cultivation,  Political and Social Organization,  Control of the Royal Patrimony

                Development of the Realm.

               THE HOUSE OF AVIS:  Wars with Castile,  Anglo-Portuguese Alliance,  Social Revolution,

               Intradynastic Struggle,  Assertion of Royal Supremacy.

               MARITIME EXPANSION:  Early Voyages,  Sea Route to India,  Empire in Asia, 

              Colonization of  Brazil,  Counter-Reformation and Overseas Evangelization.

               IMPERIAL DECLINE:  Dynastic Crisis,  Iberian Union,  Restoration, 

              Development of Brazil, Absolutism,  Peninsular Wars.

              CONSTITUTIONALISM:  Revolution of 1820,  War of the Two Brothers,

               Moderate vs. Radical Liberals,  Rotativismo,  Portuguese Africa.

               REPUBLICANISM:  The First Republic,  Military Dictatorship,  The New State,  The Social State.

III.       An Overview of the Structure of the Portuguese State

Following the 1974 military coup, Portugal became a parliamentary democracy with a legal system based upon civil law.  In 1976, a new constitution codifying the ideals of the parliamentary democracy was ratified.  The new constitution, which has been amended several times since 1974, established four main branches of government.  It also created certain duties for each of the respective branches.  The branches of government are: the Presidency, the Prime Minister and Council of Ministers commonly referred to as “the government”, the Assembly of the Republic also known as “the Parliament”, and the Judiciary. 

The information for this paragraph was obtained from the following sources:

http://www.bartleby.com/151/197.html,

http://globaledge.msu.edu/ibrd/CountryGovt.asp?CountryID=69&RegionID=2,

http://www.presidenciarepublica.pt/en/republica/constituicao/.

      A.                  The Presidency

The President is elected by direct popular vote for a term of 5 years.  In order to vote, an individual must be 18 years of age.  Like the United States, the Portuguese President may be elected no more than two consecutive terms.  The current President of the Republic is Jorge Sampaio.  He is in the middle of second term, which will come to an end in the year 2006.    

The President’s duties are set forth in articles 133 through 140 of the Portuguese Constitution.  The President serves as representative of the Portuguese Republic in both national and international relations.  The President is also the guarantor of national independence for the Portuguese people.  Another important function of the President is serving as Commander in Chief of the Armed Forces.  In addition, article 172 of the Constitution lists certain circumstances permitting the President to dissolve Parliament.  Other presidential functions include the nomination of the Prime Minister, the dismissal of the government in accordance with article 195, the declaration of state of emergency, the declaration of war and peace, and the pardoning of high crimes.  After analyzing the President’s powers, it is apparent that they are very similar to those of the French President.  

The President must sign laws, decree-laws, and regulatory decrees prior to enactment.  The refusal to endorse or sign any piece of legislation is subject to the time limits and conditions outlined in article 136 and articles 278 and 279.  Articles 134 and 135 of the Constitution provide that it is the responsibility of the President to ratify international treaties. 

The information on the Presidency was obtained from the following sources:

http://globaledge.msu.edu/ibrd/CountryGovt.asp?CountryID=69&RegionID=2,

http://www.presidenciarepublica.pt/en/republica/constituicao/,

http://www.1upinfo.com/country-guide-study/portugal/portugal125.html,

http://presidenciarepublica.pt/en/main.html (Click on the President and then click Biography and 

Constitutional Powers; under Constitutional Powers click on Constitutional Powers and Status.).

     B.                  The Prime Minister and Council of Ministers

The Portuguese government is composed of the Prime Minister and the Council

of Ministers.  The government’s duties are set forth in articles 197 through 201 of the Portuguese Constitution.  As noted in section A, the President of the Republic appoints the Prime Minister.  Once legislative elections are complete, the President appoints the leader of the majority party as Prime Minister.  The maximum length of the Prime Minister’s term is four years.  Yet, in certain situations, a Prime Minister may be overthrown.  For example, the Prime Minister himself may ask for early elections, a change in leadership in the Prime Minister’s political party may bring an end to the Prime Minister’s rule, and, in some limited instances, the President may also request the formation of a new government.                  

      The Prime Minister’s main task is to serve as Portugal’s head of government and manage the day-to-day affairs of the nation.  Once appointed, the Prime Minister must choose and or approve cabinet ministers.  The Prime Minister has other functions as well.  For example, the Prime Minister must delegate various tasks to each of the cabinet members.   Because the Prime Minister and the cabinet ministers are jointly responsible for any and all cabinet actions, the Prime Minister must ensure that each cabinet member does his job.  It is the duty of the Prime Minister alone to keep the President informed of the conduct of both internal and external policies of the country.  The current Prime Minister is Jose Barroso. 

      The Prime Minister and President appoint approximately fifteen to twenty cabinet ministers known as the Council of Ministers.  Below you will find a table that lists the current cabinet ministers.  Traditionally, most ministers are selected from members of Parliament.  If he or she is a Member of Parliament, the position in Parliament must be temporarily relinquished prior to assuming the responsibilities of a cabinet member.  The Council of Ministers has both legislative and administrative powers.  Article 200 of the Portuguese Constitution enumerates the powers of the Council of Ministers.  Some of the powers listed are: “to determine the general lines of governmental policy and its implementation, to decide whether to seek a vote of confidence in the Assembly of the Republic, to approve bills and draft resolutions, and to approve decree-laws and international agreements that are not submitted to before the Assembly of the Republic.”  (Article 200 of the Constitution)  Quite noticeably, the legislative powers bestowed upon the cabinet members are far-reaching.  Portugal’s cabinet has the power to pass decree-laws within certain designated areas for which it is responsible, and the Assembly of the Republic may expand those areas of responsibility to encompass those reserved to Parliament.

          The information on the Prime Minister and Council of Ministers was obtained from the following 

          sources:

          http://www.presidenciarepublica.pt/en/republica/constituicao/,

          http://www.portugal.gov.pt/en/Political+System/Constitution/constitution_p22,

          http://www.portugal.gov.pt/pt/Governo/Composicao/?membro=Jos%E9+Manuel+Dur%E3o+Barroso,

          http://www.1upinfo.com/country-guide-study/portugal/portugal127.html,

          http://www.1upinfo.com/country-guide-study/portugal/portugal128.html.

Table 1.  The Heads of Government 

          The information for the table was obtained from the following sources:

          http://www.workmall.com/wfb2001/portugal/portugal_chiefs.html,

          http://www.portugal.gov.pt/en/Government/Composition.

     C.             The Assembly of the Republic/ Parliament

The Assembly of the Republic is the representative assembly of all Portuguese

citizens.  Members of the Assembly of the Republic are elected by popular vote, to serve a four-year term according to a system of proportional representation.  Between 180 and 230 seats are filled each term; these seats compose the unicameral body recognized as the Assembly of the Republic or Parliament.  After the elections of March 2002, the Social Democratic Party obtained 105 seats, the Socialist Party obtained 96 seats, the Popular Party 14 seats, the Portuguese Communist Party 10 seats, the Left Block Party 3 seats, and the Green Ecological Party 2 seats.  (http://www.cia.gov/cia/publications/factbook/geos/po.html.) 

Parliament has political, legislative, and supervisory powers.  In addition, it also has powers relating to other organs. Parliament’s key powers include the power(s): to dismiss a government through a vote of no confidence, to change the country’s laws, to amend the constitution, and to impeach the president.  Other fundamental legislative powers, which the Assembly holds, are the power to legislate over elections, the State Budget, and the basic structure of education and national defense.  Among the important and interesting powers relating to other organs are that the President of the Republic may not leave the country without the consent of the Assembly except for private vacations that may not exceed 5 days, and Parliament must be involved in the appointment of positions such as judges of the Constitutional Court and the Superior Council of the Bench.

The information on the Parliament was obtained from the following sources:

http://www.presidenciarepublica.pt/en/republica/constituicao/,

http://www.1upinfo.com/country-guide-study/portugal/portugal129.html,

http://www.parlamento.pt/ingles/about_parl/powers.html,

http://www.cia.gov/cia/publications/factbook/geos/po.html.

D.                  The Judiciary

Both Roman civil law and the French Legal System have greatly influenced

Portugal’s legal structure.  Thus, like France, initially a judge’s role was to apply the appropriate law from the code to the case at hand.  There was little room for precedent from prior cases.  However, again like France, this is beginning to change.

The judicial system in Portugal consists of a Constitutional Court, a Supreme

Court of Justice, and judicial courts of first and second instance.  In addition, the Constitution provides for the Supreme Administrative Court with subordinate courts dispersed throughout the country, and a few specialty courts such as the audit court.  Articles 209 through 214 describe the organization of the courts. 

      The Constitutional Court was created by the 1982 constitutional reforms.  The court serves as the guarantor of the Constitution; specifically, it judges whether legislative acts are constitutional.  In addition, the Constitutional Court also determines whether the President has fulfilled his duty in examining international agreements for their constitutionality.  There are thirteen judges on the Constitutional Court; these judges all sit for a 6-year term. 

      The title “the Supreme Court of Justice” dates back to 1833.  It was in1833 that Jose da Silva Carvalho, the then Minister of Justice, established in Lisbon “the Supreme Court of Justice.”  However the functions designated to the Supreme Court of Justice in 1833 differ considerably than those, which it holds today.  Today, the Supreme Court of Justice is the highest court of law in Portugal notwithstanding the Constitutional Court.  The Supreme Court of Justice only hears and determines cases on matter of Law.  The Supreme Court has jurisdiction over both civil and criminal cases.  In some instances, the Supreme Court may act as the court of first instance, but usually it serves as the court of last appeal.  There are a plethora of first instance courts and a few second instance courts.  It is the courts of first and second instance that try a majority of the civil and criminal cases.  Those justices chosen to serve on the Supreme Court of Justice are elected for a life term. 

            As its title suggests, the Supreme Administrative Court oversees the administrative actions of the various government institutions.  One of its most important functions is to ensure that the nations funds are appropriately expended.  Under the Supreme Administrative Court, there are three courts of first instance. 

          The information on the Judiciary was obtained from the following sources:

          http://www.presidenciarepublica.pt/en/republica/constituicao/,

          http://www.polisci.com/almanac/nations/nation/PO.htm,

          http://jurist.law.pitt.edu/world/portugal.htm,

          http://www.1upinfo.com/country-guide-study/portugal/portugal130.html,

          http://www.stj.pt/eng/apr_files_eng/apr02_eng.html.                              

IV.                      Conclusion

Portugal has had a tumultuous history.  It has endured the rule of both monarchs

and dictators.  Yet, in 1974, despite the years of tyranny, the Portuguese people finally triumphed.  The formation of Portuguese Republic symbolizes the people’s sacrifices and ideals.  It will be interesting to see how this young Republic develops in the years to come.    

Website created by: Debby Ribeiro for Comparative Law Assignment; Spring 2003.  If you have any questions or concerns, contact http://faculty.cua.edu/fischer/.