The relationship of the two countries of the Iberian Peninsula with their Constitutions, both drafted in the 1970s, is as different as their origin. The Portuguese is the daughter of the break with the dictatorship through a military coup that triggered a peaceful revolution while the Spanish is the daughter of the reform: the death of Franco and the administrative blowing up of his regime from within. The Spanish was impregnated with consensus; the lusa, of revolution. The first has been reformed only on two specific moments to accommodate international gears (the Maastricht Treaty and the shielding of the budgetary stability demanded by Brussels), while the second has been revised seven times to look more and more like society. Portuguese, in addition to its community neighbors. The eighth reform of Portugal, which has been launched in this legislature, once again seeks a profound change.
“The revision aims to bring the Constitution closer to the new era. The current one still contains ideological expressions as a “socialist” society and is not adapted to modern times such as digital reality and metadata”, says Rosália Amorim, director of the Newspaperfounded in 1864 and whose archive was declared a national treasure this summer.
Despite the fact that the revision was initially launched by the extreme right of the Chega party, which defends incorporating chemical castration for rapists, life imprisonment and compulsory voting into the Constitution, the change has been embraced by the two main political forces, the Party Socialist Party and the center-right Social Democratic Party (PSD), to propose new rights and introduce unimaginable realities half a century ago into the norm. “This will not be Chega’s constitutional review,” proclaimed the prime minister, the socialist António Costa, during the last political commission of his party. “The best way to defend democracy is to modernize the catalog of fundamental rights with progressive values,” he added.
Costa proposes to introduce digital, labor rights —”decent work,” he says—, social rights —combating gender violence— and environmental rights —animal welfare and healthy and sustainable food—, but also some restrictions that come from the legal uncertainty that he experienced as ruler during the months of pandemic confinement. “We must provide legal certainty of control necessary for rights, freedoms and guarantees,” he said. Access to the metadata of digital users by security forces, which has caused great political and legal controversy in the country in recent months, will also be one of the aspects that would be included in this constitutional reform.
Proposal to vote at age 16
The PSD will defend the reduction of the minimum voting age to 16 years ―a flag waved years ago by the Bloco de Esquerda―, the reduction of seats in the Assembly of the Republic and the reduction of the mandate of the president of the Republic, which right now can chain a maximum of two periods of five years and that the conservatives want to limit to a single term of seven. Both the definition of states of health emergency and the use of metadata are aspects that the leader of the PSD, Luís Montenegro, is willing to agree with the Socialists.
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For a constitutional reform to go ahead, it is necessary to achieve the support of two thirds of the Assembly of the Republic, which would be more than achieved with the two majority formations, which add up to 197 deputies out of a total of 230. However, all the political forces They have drawn up proposals and there are already eight reform projects. “It began as a Chega initiative, but it has already mobilized everyone. The review touches on important issues such as metadata, rights, freedoms and guarantees and the reinforcement of environmental concern and protection, but it should also touch on electoral circles to achieve greater representation of citizens”, defends Amorim.
The Portuguese Communist Party, which had decisive weight in the original text of 1976, has come out against the revision, considering it “precipitated” and aimed at “mutilating” the norm. However, once the process was launched, it has developed its own project to “defend the values of April 25” and combat “setbacks and liquidation of rights.” For its part, the Bloco de Esquerda wants minors under 16 years of age and resident foreigners to be allowed to vote, in addition to giving institutional coverage to the fight against climate change, among other proposals.
The revolutionary imprint of the first democratic constitution that the Portuguese had still endures in some respects. Article 94, for example, regulates the elimination of large estates. But it is increasingly residual after the previous seven revisions. “The 1976 text contained, at the time of its birth, non-democratic elements and foreign to constitutional logic,” writes Gabriel Moreno, professor of Constitutional Law at the University of Extremadura, in his book How the Portuguese govern themselves. Constitutional history and political system of Portugal (Comares).
In the first reform, that of 1982, the Council of the Revolution was eliminated, which was formed only by the military and acted as a kind of guardian of the essences of April 25. “One of the objectives was to reduce the programmatic nature of those precepts imbued with the Marxist or more leftist narrative,” Moreno details in his work. In 1989, the trend was accentuated with the erasure of State economic interventionism in aspects such as the collective appropriation of the means of production and agrarian reform, to standardize it with the new context of the European Economic Community, where Portugal had joined in 1986.
“The first reforms,” explains Moreno by email, “modified substantial elements of the original text to adapt it to European reality or to lower and reduce the interventionist content in the economy, when not directly revolutionary.” Portugal has shown more flexibility and consensus in reaching institutional agreements on its Constitution than Spain, which presents Throughout its constitutional history, “a manifest inability to reform its Constitutions and political systems, which constitutes a true anomaly in the European context,” observes Moreno. “However”, he points out, “the Portuguese Constitution contains a very broad non-reformability clause for many of its provisions or provisions that we cannot find in the Spanish one”.
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