The Indirect Revisability of Material Constitutional

The prevailing interpretation of Article 288 of the Portuguese Constitution often leads to the conviction that regional autonomy is permanently protected against any attempt at its abolition. A strictly legal analysis, however, counsels greater caution. Regardless of the doctrinal disagreements surrounding the matter, it is undeniable that constitutional systems are historical and political creations. The Portuguese Constitution currently in force is celebrating fifty years of existence, making it one of the longest-lasting constitutions in the nation’s constitutional history. This very provision is proof of that.

Its wording reads as follows:

“Material Limits to Constitutional Revision. Constitutional revision laws shall respect:
(a) national independence and the unity of the State;
(b) the republican form of government;
(c) the separation of Church and State;
(d) the rights, freedoms, and guarantees of citizens;
(e) the rights of workers, workers’ committees, and trade union associations;
(f) the coexistence of the public sector, the private sector, and the cooperative and social sector in the ownership of the means of production;
(g) the existence of economic planning within the framework of a mixed economy;
(h) universal, direct, secret, and periodic suffrage in the election of the holders of sovereign offices, the autonomous regions, and local government bodies, as well as the system of proportional representation;
(i) pluralism of political expression and organization, including political parties, and the right to democratic opposition;
(j) the separation of and interdependence among the sovereign organs of the State;
(l) constitutional review by action or omission of legal norms;
(m) the independence of the courts;
(n) the autonomy of local government authorities;
(o) the political and administrative autonomy of the archipelagos of the Azores and Madeira.”

Over the course of these fifty years, profound technological, economic, social, and geopolitical transformations have taken place. The pace of historical change has become incomparably faster than that which characterized previous centuries. In this context, it would be methodologically unsound to assume that any constitutional provision is forever immune to future political evolution.

What the Constitution—and Article 288 in particular—provides is enhanced protection. It does not suspend history. It does not halt the passage of time, the changing quality of politics and politicians, or the evolution of society itself.

The true guarantee of autonomy, therefore, does not rest solely upon the existence of constitutional provisions. It also depends upon the ability of political and autonomous institutions to demonstrate that they continue to fulfill effectively the purposes for which they were created. The greater the perceived usefulness of autonomy, the stronger its political legitimacy becomes, and the less likely any attempt to weaken its constitutional protection will be.

Even where great care is taken—which, in our regional case, is regrettably not so—change can occur despite the will of the majority or the dictates of rationality. Yet that is not the greatest danger. The greater danger resembles what happens in revolutions: by the time change becomes visible, many of the elements of the new order have already entered people’s lives and begun reshaping their reality.

There are instances in which such transformation proves beneficial, as in the French case analyzed by Alexis de Tocqueville in The Old Regime and the Revolution. In others, however, when the underlying adaptation of society is founded upon negative premises, the ultimate outcome will likewise be negative—as we believe may well be the case for the Azores.

Arnaldo Ourique is a specialis on the Azorean Autonomy with many years of reserearch, reflection and published workks.