This Wednesday, the President of the Republic submitted to the Constitutional Court for a preventive review a parliamentary decision that changes the legal regime of professional public associations.
According to a message published on the official website of the President of the Republic on the Internet, the head of state “considers that the decision of the Assembly of the Republic raises doubts about the observance of such principles as equality and proportionality, the guarantee of the exercise of certain rights, self-regulation and the democratic nature of professional associations, all of which are provided for by the Constitution Portuguese Republic”.
“Taking into account legal certainty and security, the President of the Republic decided to submit for preventive constitutional review by the Constitutional Court the decision of the Assembly of the Republic, which amends the legislation on professional associations and access to certain regulated professions,” reads the note.
Marcelo Rebelo de Sousa announced on Tuesday and confirmed this Wednesday his intention to send this decree to the Constitutional Court “so that there is legal certainty and security.”
This decree was approved in a final global vote on December 22, with PS, Iniciativa Liberal and PAN voting in favor, PSD, Chega and PCP voting against and BE and Livre abstaining.
After fixing the final wording, it went to Belen Palace on Friday, January 27, according to the website of the Assembly of the Republic.
The final text of the decree presented by the Labor, Social Security and Integration Commission is based on the PS and PAN bills.
In a letter sent to the Constitutional Court, the President of the Republic asks for an assessment of the norms for evaluating internships, the composition of disciplinary bodies, the discrepancies between the exercise of functions in the bodies of professional public associations and the exercise of leadership functions in the public service, service recipients and supervisory authorities.
Marcelo Rebelo de Sousa refers to the fact that “professional associations are considered to be public associations having a status” based on such provisions of the Constitution as article 47, paragraph 1, according to which “everyone has the right to freely choose his profession or type of work, subject to legal restrictions, imposed by a collective interest or inherent in their own capacity”.
The head of state also refers to paragraph 4 of Article 267 of the Constitution, which determines that “public associations can only be created to meet specific needs, they cannot perform the functions characteristic of union associations and have an internal organization based on respect for the rights of its members and democratic formation his organs.”
According to the President of the Republic, “the currently consolidated norms establish a number of restrictions regarding the principle of self-regulation of professional associations and other constitutional protection of these entities”, arising from the cited articles.
In his opinion, “this is what happens with the combination of powers and the composition of the supervisory board.”
“Assuming functions that are truly general self-regulation, including the control of legality in the implementation of this regulation, having holders who for the most part do not belong to the relevant professional association and are not democratically elected by its members, the rules defining such a composition seem unconstitutional, for violating this principle and relevant constitutional norms,” he claims.
Marcelo Rebelo de Souza argues that the same applies to “assigning functions of a disciplinary nature, post-graduate evaluation, or assigning the functions of a provider to persons who are not members of a professional association, which violates the principle of self-regulation.”
With regard to incompatibility, according to the President of the Republic, “a disproportionate restriction has been created” and “without evidence of a material basis”.
“This means, for example, that the director of the service of a public hospital of the National Health Service cannot serve in the governing bodies of the Order of Physicians, of which he is a mandatory member, while the director of the same service of a private hospital is not subject to the same incompatibility, which may violate the principle of equality in the measurement of proportional equality,” he notes.
On this basis, the President of the Republic requires an examination of the set of norms of this decree “with a view to violating the principles of equality and proportionality provided for in Articles 13 and 18, guarantees for the exercise of political rights provided for in Articles 50.º and 269.º of the principle of self-regulation of professional orders, Articles 47.º, No. 1 and 267.º, No. 4, of the entire Constitution of the Portuguese Republic.”
This is the sixth request for preventive constitutional review that Marcelo Rebelo de Souza has submitted to the Constitutional Court since he took office in March 2016.
Author: Portuguese
Source: CM Jornal
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