The Constitutional Fragility of Autonomy

Constitutional revisions and Azorean autonomy.

The clearest demonstration of the possibility of transforming the autonomous regime can be found in an analysis of the successive constitutional revisions.

Over the past several decades, regional autonomy has experienced both advances and setbacks, with the participation of the Autonomous Region itself. And in all of them, the Region played a central role: sometimes through its own political parties, in the relationship between their regional branches and the national leadership; at other times through the media; and still at others through written proposals embodied in parliamentary resolutions.

The constitutional revision of 1982 represented, in several respects, a significant strengthening of autonomy. Among other elements, it consolidated recognition of the regional decree, now designated a regional legislative decree, as a legislative instrument endowed with a status comparable to that of the other forms of legislation provided for within the Portuguese legal system. During those years, from 1976 to 1982, the Assembly’s “regional decree” was often confused with the “regional decree” issued by the Minister of the Republic for the Region: the former was a parliamentary legislative act, while the latter was a political act.

The constitutional revision of 1997 likewise introduced positive developments, particularly by strengthening certain regional powers and enhancing the role of autonomy within the constitutional framework. Nevertheless, that same revision also prompted significant criticism. The enshrinement of the fundamental principles of the general laws of the Republic created substantial interpretative difficulties, generating legal uncertainties that, for years, shaped the debate over the limits of regional legislative authority. Subsequently, the constitutional revision of 2004 sought to resolve some of these problems, but did so through solutions that continued to provoke controversy. Particularly debated was the decision to remove from the Constitution the enumeration of matters traditionally associated with specific regional interest, referring them instead to the Political-Administrative Statute as matters falling within the regional sphere.

This amendment was interpreted by various authors as a symbolic and substantive weakening of the constitutional position of autonomy. Regardless of the judgment one may make concerning each revision, one fact remains incontrovertible: the autonomous regime has undergone substantial transformations over time. Although the system governing the creation of regional legislation originating within the autonomous institutions has lost some of its quality, the constitutional model of autonomy itself has not.

Consequently, it is not possible to maintain that the mere existence of Article 288 — which establishes a substantive limit on constitutional revisions with regard to the autonomous regions — has prevented significant changes to autonomy.

Constitutional protection and political vulnerability.

The foregoing analysis allows us to draw a provisional conclusion. Azorean autonomy benefits from particularly robust constitutional protection. That protection distinguishes it from many other forms of decentralization found in different political systems. Nevertheless, such protection does not eliminate the possibility of transforming the autonomous regime. Institutions do not survive merely because they are inscribed in a Constitution. They survive because they continue to respond effectively to the needs of the communities they serve.

Thus, the principal question is not whether autonomy exists as a matter of law. That question has been settled. The real question is whether the transformations that have occurred over the past several decades remain compatible with the political and territorial principles that justified the creation of regional autonomy in the first place. It is precisely this question that will be examined next, through an analysis of the internal changes within the autonomous model and the evolution of its foundational principles.

Translation for Filamentos by Diniz Borges