Name of the act/s*

Rules of Procedure of the Portuguese Parliament

Subject area

Constitutional Law. Parliament Law.

Brief description of the contents of the act

The process that resulted in the adoption of the new Rules of Procedure of the Portuguese Parliament began with the presentation, on 29^th October 2019, of a draft amendment to the Rules of Procedure of the Portuguese Parliament No. 1/2007 of August 20, “in order to ensure the fair and proportional representation of all political parties”. It was presented by the Liberal Party, which for the first time obtained parliamentary representation, with the election of a single deputy. It argued the need to be reflected in the functioning of Parliament the fact that, from 2015 to 2019, the number of parties represented by a single deputy tripled (https://www.pordata.pt/Portugal/Mandatos+nas+elei%c3-%a7%c3%b5es+para+a+Assembleia+da+Rep%c3%bablica+total+e+por+partido+pol%c3%adtico-2257). Other projects followed, the last one on 30 June 2020 (Draft Rules of Procedure Nos. 1 to 8/XIV/1).

The new Rules of Procedure (No. 1/2020, of 31 August) on the one hand, does not constitute a major reform of parliamentary rules compared to what is considered the substantive reform in the Portuguese Parliament, the 2007 Reform. On the other hand, they do not reflect the aim to adapt the functioning of the Parliament to the COVID-19 pandemic.

The main amendments are as follows:

i)                 The fortnightly debates with the Prime Minister were replaced by monthly debates. The debates to monitor Government activity has an alternate format: one month with the head of Government on general policy; and the next on sectoral policy with a sectorial minister (Article 224);

ii)                An urgent debate may be held every fortnight at the request of a parliamentary group (Article 72(1));

iii)              Parliamentary committees can now function with one-fifth of the number of sitting deputies, with the rule that decisions are taken in the presence of more than half of their sitting members, provided that at least three deputies from three parliamentary groups are present, one of whom from a party in the Government and one from an opposition party (Article 58(5));

iv)              The deputy who is the sole representative of a party is granted the effective right to participate in the Parliament actvities (for instance, the right to be heard when the agenda is set and to lodge an appeal to the Plenary of the agenda set) - Article 10;

v)                In setting the agenda, the President of the Parliament shall respect, as a rule, the representativeness of the political forces (Article 60(1));

vi)              A debate is provided on the progress of the regulation of laws, on the sequence given to policy recommendations, and on the lack of response to questions and requirements (Article 225a);

vii)             The holding of ceremonial sessions is regulated, in particular the annual celebration of 25 April, that mark the Carnation Revolution of 1974 (Article 76) (due to pandemic, this year, the ceremonies were controversial - https://www.eurotopics.net/en/239412/portugal-national-celebration-without-citizens);

viii)            The authorization of the state of siege or emergency now takes the form of resolution, as well as its confirmation or refusal (instead of the form of law in case of confirmation and resolution in case of refusal) - Articles 177 and 181;

ix)              Plenary and parliamentary committee meetings are public and, as a rule (as it was already in practice), transmitted by the Parliament Channel, as well as made available on the Parliament portal on the Internet (Article 110).

Comment

1. The Portuguese Parliament (Assembleia da República).

The Portuguese Parliament is a unicameral parliament with two hundred and thirty Members, directly elected for a period of four years (Articles 147, 148, 113(1), and 114(1) of the Constitution). It has legislative pre-eminence (Articles 161 (c)-(e), 164 and 165 of the Constitution - https://dre.pt/part-iii), notwithstanding the Government's broad legislative competence. Regarding the government parliamentary oversight, the Parliament has, namely, the competence to scrutinise Government compliance with the Constitution and the laws and to assess the acts of the Government and of the Public Administration; to consider the manner in which a declaration of a state of siege or a state of emergency is implemented; and to draw up a motion to consider an executive law (save for those made by exercise of the Government's exclusive legislative competence) - Articles 162 (a)-(c) and 169 of the Constitution.

As internal competences, the Parliament has the competence to draw up and pass its Rules of Procedure and to form the Standing Committee and the remaining committees (Article 175 of the Constitution).

The Parliament’s plenary sessions meet with the quorum of one fifth of the total number of its members (Article 58(1)). Plenary deliberations are taken in the presence of more than half of the Members, so that at least 116 Members must be present to vote (Article 58(2) of Rules of Procedure and Articles 148 and 116(2) of the Constitution).

Legislative sessions last for one year and the normal parliamentary term is from 15 September to 15 June, without prejudice to suspensions decided by a two-thirds majority of its Members who are present (Article 174(1)-(2) of the Constitution).

2. Parliament's Rules of Procedure 2020 versus Parliament's Rules of Procedure 2007.

The Rules of Procedure no. 1/2007, of 20 August, is considered the real reform of Parliament, a “revolution in the workings of parliament” (A. Filipe, 2009). It increased the opposition rights granted to the Parliament Groups; stated that the Prime Minister shall attend the Plenary for a session of questions from Members of the Parliament once a fortnight; and stated that Ministers must be heard at hearings of the Parliament committees at least four times in each legislative session, in accordance with a schedule set at a Conference of Leaders by the first week of each the legislative session.

The Rules of Procedure of 2007 is deemed to have contributed to the gaining of centrality of the Parliament in the political system regarding its political control role, control which continued to be exercised during the Portuguese bailout period (May 2011-May 2014; https://www.esm.europa.eu/assistance/portugal).

In 2020 Rules of Procedure, what was manly at stake were adjustments related to the need of represention of single-member parties. The reduction of the number of times Prime-Minister should attend Parliament session was a critical issue, with a wide discussion also in the media.

The process of enacting new Rules of Procedure began before the pandemic, continued and finished during this period. In spite of this, there was no adaptation of the parliamentary rules to the pandemic, with the exception of the quorum for the functioning of parliamentary committees.

3. The functioning of the Parliament during the pandemic.

Since the beginning of the pandemic Portugal experienced 4 periods of state of exception: three of them between 19th March 2020 at 0:00 AM to 2^nd of May 2, 2020, at 11:59 p.m. (Decree of the President of the Republic No 14-A/2020 of 18 March 2020, that declares the state of emergency, on the basis of a situation of public disaster, renewed by the Decree no. 17-A/2020, of 2 April, and Decree no. 20-A/2020, of 17 April); and since the 9th of November of 2020, by the Decree of the President of the Republic n.º 51-U/2020, November 6, that declared the state of emergency, based on the verification of a public calamity situation. The state of emergency lasts 15 days, beginning at 00:00 on November 9, 2020 and ending at 23:59 on November 23, 2020, without prejudice to the possibility of renewals subject to the same limits.

The Portuguese Parliament has not suspended its activity since the beginning of the pandemic. Accordingly to Article 116(2) of the Constitution ‘[c]ollegial entities and organs shall take their decisions in the presence of a majority of the number of members they are prescribed to have by law’. The remote voting in plenary sessions is not foreseen and was not introduced in the reviewed Parliament’s Rules of Procedure. Nevertheless, Members of the Parliament representing Autonomous Regions of Azores and Madeira and those who represent emigrants took part via videoconference.

The following changes to the operation of the Parliament have been adopted, by Leaders Conference Meetings, to deal with the pandemic:

i)                 The number of Members of the Parliament present at the plenary sessions (fewer sessions than normal) was reduced to its quorum, of one-fifth of the number of Members of the Parliament in effective office (Article 58(1)); securing the proportion of the Parliamentary Groups (plus the single deputies and the non-attached deputies) and ensuring only to vote the presence of at least 116;

ii)                Parliamentary Committees meetings became less frequent, functioned in a reduced model; and some meetings took place by videoconference.

The pandemic has impacted on the Portuguese Parliament’s functioning, but not in a significative way. It continued to debate, pass legislation and to scrutinise the Government. As part of its legislative activity, between March 18, 2020 until May 15, 2000 Parliament has passed 17 decrees (15 of which enacted in the form of law) and 3 resolutions, most of which contain measures in response to the crisis caused by the COVID-19 pandemic. During this period, 123 Member's bills, 14 government bills, 6 parliamentary reviews of executive laws and 136 draft of resolutions were considered. As part of its scrutiny activity, the Reports on the implementation of the 1st and 2nd Declarations of the State of Emergency were appreciated; the 3rd Declaration was appreciated on 21 of May. During the above mentioned period, 12 Plenary Meetings were held (one of which was the Solemn Commemorative Session of the 46th Anniversary of the 25th of April 1974), 8 meetings of the Leaders' Conference and 82 meetings of the Parliamentary Committees (which carried out more than 60 hearings, 31 of which of Government Members) - https://www.parlamento.pt/Paginas/2020/maio/Atividade-parlamentar-em-tempo-de-pandemia.aspx.

Nevertheless, the question of the violation of Parliament's exclusive or partially exclusive legislative competence in the context of pandemic arose, although outside the specific emergency periods. In the Judgment 424/2020, the Constitutional Court found to be unconstitutional the rules contained in paragraphs 1 to 4 and 7 of Azores Government Council Resolution 77/2020 and in paragraphs 3(e) and 11 of Azores Government Council Resolution 123/2020, under which passengers landing in the Autonomous Region of the Azores must be compulsorily confined for 14 days, which only could be decided in the national Parliament. Differently, the Administrative Supreme Court, regarding the fundamental right to move and reside freely within the national territory, rejected an injunction grounded on the violation of the legislative competence of Parliament by the Council of Ministers Resolution No 89-A/2020 of 26 October (Judgment of Administrative Supreme Court of 31 of October 2020, case n.º 0122/20.1BALSB). Two of the three Judges found that there was not an intolerable restriction on that right. A judge expressed a dissenting opinion, according to which the Government infringed the parliament's legislative competence (Article 165(1)-b) of the Constitution).

With regard to the Legislative Assembly of Azores, it postponed a plenary session in March and held two plenary sessions in May by video-conference, and returned to face-to-face activity in June. The Legislative Assembly of the Autonomous Region of Madeira amended its Rules of Procedure (Resolution 16-A/2020/M, April 30): the quorum needed to run the Plenary meetings is, at least, 1/3 of the deputies in full exercise of their office (Article 63(1)), as a rule, the votes expressed by the Members present are counted as representing the universe of their parliamentary group (Article 104 (2)-(3)); the sittings of the Commissions can be held electronically, using the adequate technological means (Article 119 (3)).

4. New changes in the way the Parliament operates, based on the pandemic.

On 10^th November 2020, it was decided by the Leaders' Conference:

i)                 That besides the quorum, the other Members shall participate in the plenary sessions by videoconference from their respective offices and may speak, subject to prior registration, addressed to the secretaries of the Bureau.

ii)                These Members may also vote, whenever their vote is different from that of their benches, making the declaration of their vote in a viva voce.

iii)              The same rules may apply to Members of Autonomous Regions of Azores and Madeira and of the emigration constituencies in the event of being unable to travel due to the absence of flights, as well as to members who have been determined, by health authority, to be prophylactically isolated.

This contrast to the previous understanding and practice, accordingly to which all the Plenary sessions of the Parliament were face-to-face meetings.

On 10^th November, it was also decided to suspend the constitutional revision process that had been opened on October 9, because the Constitution does not allow it to take place during the state of emergency.

On the same day, a working group was created to discuss the model of functioning of the Parliament during the pandemic situation and to propose the measures to be adopted in the coming months.

Secondary sources/ doctrinal works (if any)

-        Jančić, Davor, "The Portuguese Parliament and EU Affairs: From Inert to Agile Democratic Control", in Hefftler C., Neuhold C., Rozenberg O., Smith J. (eds) The Palgrave Handbook of National Parliaments and the European Union. Palgrave Macmillan, London, 2015, pp. 366-386. https://doi.org/10.1007/978-1-137-28913-1_18.

-        Loureiro, João Carlos, During the Covid-19 pandemic the Portuguese Parliament did not 'revolutionize' its functioning”, The Parliament in the time of coronavirus, Portugal, Fondation Robert Schuman, 2020.

-        Murphy, Jonathan, “Parliaments and Crisis: Challenges and Innovations”, Parliamentary Primer No. 1, 2020 International Institute for Democracy and Electoral Assistance (https://www.idea.int/publications/catalogue/parliaments-and-crisis-challenges-and-innovations).

-        Seguro, A. José, "The Centrality of the Portuguese Parliament: Reform, Troika and ‘Contraption’”, in Costa Pinto A., Pequito Teixeira C. (eds.) Political Institutions and Democracy in Portugal. Palgrave Macmillan, 2019, pp. 101-119 (https://doi.org/10.1007/978-3-319-98152-9_6.).

-        Judgment of Administrative Supreme Court of 31 of October 2020, case n.º 0122/20.1BALSB (http://www.dgsi.pt/jsta.nsf/Por+Ano?OpenView).

-        Judgment of Constitutional Court n.º 424/2020, of 31 July 2020, case 403/2020 (https://www.tribunalconstitucional.pt/tc/acordaos/20200424.html).

*Act citation /year and number

2020/1

Enacted by

Parliament

Official link to the text of the act

Link to the Rules of Procedure 1/2020 - https://dre.pt/home/-/dre/141382322/details/maximized.

Link to the other acts mentioned: https://www.safecommunitiesportugal.com/emergency-legislation/;

https://www.acm.gov.pt/-/covid-19-medidas-orientacoes-e-recomendacoes.