Reform of the Portuguese Constitutional Court

For the Independence of the Constitutional Court and for an Effective Separation of Powers

8/21/20267 min read

To all those who believe in democracy and defend the principle of separation of powers

Statement of Reasons

The Constitution of the Portuguese Republic establishes, in Article 2, that Portugal is a democratic state based on the rule of law and, among other fundamental principles, on the separation and interdependence of powers.

Article 111 likewise establishes that the organs of sovereignty must effectively apply the separation and interdependence of powers established by the Constitution.

The Constitutional Court occupies a central position in this architecture. Under Article 221 of the Constitution, it is the court responsible for administering justice in matters of a constitutional and legal nature. Its functions include reviewing the constitutionality of legislation, assessing the constitutionality and legality of referendums, and overseeing the regularity and validity of electoral acts.

Separation of powers does not merely consist of assigning different powers to different institutions.

It also requires the constitution, composition and functioning of those institutions to be designed in such a way as to prevent excessive concentrations of power and structural dependencies between those who exercise power and those whose function is to oversee it.

However, in its current form, the system for composing the Constitutional Court creates a concentration of appointment power in the legislative body that the Court itself is responsible for reviewing.

The Current Composition

Article 222 of the Constitution establishes that the Constitutional Court consists of 13 judges:

10 are elected by the Assembly of the Republic by a two-thirds majority of the Members present, provided that this is higher than an absolute majority of Members in full exercise of their office;
the remaining 3 are co-opted by the 10 judges previously elected by the Assembly of the Republic;
at least 6 of the 13 judges must be chosen from among judges of the other courts;
the remaining judges are chosen from among legal scholars;
the term of office is 9 years and is non-renewable.

Law No. 28/82 of 15 November — the Law on the Organisation, Functioning and Procedure of the Constitutional Court — implements this model, namely through its provisions concerning the submission of candidacies, parliamentary election and subsequent co-option.

Thus, although the final three judges are formally co-opted, the origin of the process for constituting all 13 members remains concentrated in parliamentary selection.

The qualified two-thirds majority constitutes an important safeguard against the imposition of a simple party majority. However, political consensus is not synonymous with separation of powers.

Although there is a qualified parliamentary majority and a formal co-option mechanism, the Assembly of the Republic retains a decisive role in the formation of the Constitutional Court.

This creates a structural contradiction with the constitutional principle of separation of powers itself. The fundamental question is therefore:

An institution whose function is to review the constitutionality of the exercise of political power should not have its structural composition dependent upon that same political power.

A Genuine Separation of Powers

This petition proposes constitutional and legal reform designed to ensure the effective institutional independence of the Constitutional Court. The aim is not simply to transfer the current power of appointment from the Assembly of the Republic to another institution. Rather, the aim is to distribute that power among different sources of legitimacy, creating genuine mechanisms of checks and balances.

The following measures are proposed:

1. Pluralisation of the Appointment of Judges

The composition of the Court should derive from different sources of institutional legitimacy, including, in a balanced manner, judicial bodies, organs of sovereignty, and independent institutions from the legal and academic communities.

None of these sources should, on its own, be able to constitute a majority of the Court.

2. Effective Participation of the Judiciary

The supreme bodies of the judiciary should play a substantive role in appointing constitutional judges, so that the composition of the Court is no longer predominantly dependent on Parliament.

3. Maintaining Parliamentary Participation, but Without Parliamentary Dominance

The Assembly of the Republic may continue to participate in the appointment of part of the judges, preserving a component of direct democratic legitimacy, but it should not be able to determine a majority of the Court.

4. Participation of Independent Legal Institutions

The distribution of appointment powers among institutions representing the judiciary, the legal profession, legal academia and other constitutionally independent bodies should be further examined.

The final composition should result from a system of cross-checks and balances rather than from the predominance of any single institution.

5. Long, Non-Renewable and Staggered Terms

The principle of non-renewable terms should be maintained, but terms should be organised on a staggered basis.

The progressive renewal of seats would prevent a single change in the parliamentary or presidential majority from producing a concentrated transformation of the Court's composition.

6. Transparency in the Appointment Process

The selection of judges should be preceded by a public and transparent procedure, including:

public identification of candidates;
curricula vitae and qualifications;
declarations of interests;
identification of incompatibilities;
public hearings, where applicable;
disclosure of selection criteria;
reasons for the choices made.

7. Strengthening Incompatibility Rules

Appropriate periods of incompatibility should be established in relation to the recent exercise of governmental, parliamentary, party-political or other positions of high political responsibility.

The objective is to prevent the Constitutional Court from becoming an extension or continuation of political-party careers.

8. Administrative and Financial Independence

The Constitutional Court should have sufficient guarantees of administrative, financial and budgetary autonomy to prevent its activities from being conditioned by other organs of sovereignty.

Guiding Principle of the Reform

Separation of powers does not mean that the different powers of the State must be completely isolated from one another.

It means that no power should possess sufficient capacity to dominate the mechanisms designed to oversee it.

The Assembly of the Republic should legislate.

The Government should govern.

The courts should adjudicate.

And the Constitutional Court should review the conformity of the exercise of these powers with the Constitution.

For this review to be institutionally independent, the composition of the Constitutional Court cannot depend predominantly on one of the powers that it is itself responsible for overseeing.

The democratic legitimacy of the Court does not diminish when its composition ceases to be concentrated in a single institution. On the contrary, it is strengthened when it derives from different sources of legitimacy, independent from one another and subject to mechanisms of checks and balances.

A New Architecture for the Constitutional Court

This petition proposes the revision of Article 222 of the Constitution in order to establish a Constitutional Court composed of 17 judges, whose appointment would derive from different institutional sources.

1. Four Judges Elected by the Assembly of the Republic

The Assembly of the Republic would continue to participate in the composition of the Constitutional Court, preserving the direct democratic legitimacy of the representative body.

However, its representation would be limited to four of the 17 judges, preventing the legislative power from determining a majority of the Court.

The election should continue to require a qualified majority, ensuring a choice based on broad political consensus.

2. Four Judges Appointed by the Superior Courts

Four judges would be appointed by the superior courts.

This component ensures that a significant part of the Court's composition originates directly from the judicial system and judicial experience rather than from political power.

3. Four Judges Appointed by the Supreme Councils of the Judiciary and Public Prosecution

Four judges would be appointed by the supreme governing bodies of the judiciary and the Public Prosecution Service.

This component introduces a second source of legitimacy originating from the justice system, distinct both from the legislative power and from political administration.

4. Five Judges Selected by an Independent College for Constitutional Guarantees

The remaining five judges would be selected by an Independent College for Constitutional Guarantees, composed of representatives of universities, professional associations, legal research centres and other scientific and technical institutions relevant to the rule of law.

This mechanism introduces a dimension of legal, scientific and institutional legitimacy that is autonomous from the organs of sovereignty.

The College should be organised into different sections corresponding to the institutional categories represented within it, with each section participating in the appointment of a specified number of judges, as defined by law.

In this way, no individual institution would be able to capture the selection process.

Necessary Constitutional Amendments

To implement these principles, it is proposed that Articles 2, 110, 111, 221, 222 and 223 of the Constitution of the Portuguese Republic be revised, insofar as necessary to establish a new architecture of institutional independence for the Constitutional Court.

In particular, Article 222 should cease to establish a composition based predominantly on parliamentary appointment and instead enshrine:

plurality of appointment sources;
institutional independence;
absence of domination by any institution or political majority;
non-renewable and staggered terms;
guarantees of transparency and impartiality in the constitution of the Court.

Law No. 28/82 of 15 November should likewise be revised, particularly its provisions concerning:

the composition of the Court;
the submission of candidacies;
parliamentary election;
co-option;
the appointment and taking of office of judges;
the duration and renewal of terms;
incompatibilities;
impediments and challenges;
guarantees of judicial independence.

The reform should ensure that ordinary legislation cannot reintroduce, through procedural means, the concentration of power that the constitutional revision seeks to eliminate.

Petition

The undersigned therefore petition the Assembly of the Republic to:

Recognise the need to strengthen the institutional independence of the Constitutional Court as a necessary condition for an effective separation of powers;
Promote the revision of Article 222 of the Constitution, replacing the current composition model with a plural appointment system;
Establish a Constitutional Court composed of 17 judges, distributed among different sources of institutional legitimacy;
Provide for four judges to be elected by the Assembly of the Republic by qualified majority;
Provide for four judges to be appointed by the superior courts;
Provide for four judges to be appointed by the Supreme Councils of the Judiciary and Public Prosecution;
Provide for five judges to be selected by an Independent College for Constitutional Guarantees, representing universities, professional associations, legal research centres and other scientific and technical institutions relevant to the rule of law;
Ensure that no organ of sovereignty or political majority can directly or indirectly determine a majority of the composition of the Constitutional Court;
Maintain and strengthen long, non-renewable terms, guarantees of independence and incompatibility rules for judges;
Establish staggered terms of office in order to protect the continuity and institutional independence of the Court;
Ensure that the process for selecting and appointing judges is transparent, public and based on objective criteria of competence, merit and independence;
Strengthen the administrative and financial autonomy of the Constitutional Court;
Ensure that Constitutional Court decisions are drafted with technical rigour while also being clear and comprehensible to citizens;
Revise Law No. 28/82 of 15 November so as to bring it fully into line with the new constitutional architecture;
Treat this reform as an integral part of a broader policy aimed at giving effective force to the separation and interdependence of the powers of the Portuguese State.