The creation of additional higher education places
Right to education
University entrance exams
Principle of the separation of the powers of the state
Principle of the interdependence of the powers of the state
Exclusive competence of the public administration
Principle of equality
Principle of trust
RULING Nº 1/97
8 of January of 1997
The idea of «general powers reserved for the administration» is not in keeping with the meaning currently given to the principles of the rule of law and of the separation and interdependence of powers; nor does this ensue from the text of the Constitution. Under the Constitution, the general principle of the separation and interdependence of powers establishes a rationale of co-operation and co-ordination between State powers and bodies.
Although the Constitution assigns the key elements of the executive function to the Government as the highest organ of public administration, areas which may be the subject of administrative activity (eg issuing of the regulations needed to implement laws) may also be the subject of a law passed by the Assembly of the Republic.
The Constitution does not uphold the argument that the administration has «reserved powers in respect of specific functional matters» since the assignment of a specific field of action to the executive, as a corollary of the separation and interdependence of the organs of supreme authority, does not imply that certain matters are reserved originally and absolutely for the executive; it simply implies the power to choose from among several possible decisions, in an area not dealt with in detail in parliamentary legislation.
«Maßnahmegesetze» (laws not making general provisions but dealing with special individual cases) are not necessarily at variance with the separation of powers because of their form (ie the fact that they are not abstract and general in nature), although - like any other law - they can violate the principle of equality.
The case concerns an application for prior scrutiny of constitutionality made by the President of the Republic, who argued that the provisions in question could have an adverse retrospective effect on the rules governing the national university entrance examination for the 1996/1997 academic year, through the creation of additional places for specific individuals by the Assembly of the Republic.
The provisions in question were contained in a decree submitted to the President of the Republic for enactment in the form of a law, having been approved with the support of all parliamentary opposition parties and notwithstanding the opposition of the deputies of the Socialist Party (the party in government, which, however, has only a relative majority).
The President of the Republic stated as the first ground of his application the principle of the separation and interdependence of powers, laid down explicitly in Article 114 of the Constitution. He submitted several possible arguments:
a. the Assembly of the Republic could be regarded as encroaching, by way of legislation, on core administrative functions;
b. independently of the idea of «general powers reserved for the administration», the Assembly of the Republic could be regarded as having encroached on the area of administrative powers which the Constitution assigns specifically to the Government, thus violating the principle of the separation and interdependence of powers, which represents both a constitutional guarantee of the powers reserved specifically for the administration and the imposition of functional limits on the legislature;
c. the Assembly of the Republic could be regarded as having violated the principle of the separation and interdependence of powers because, without an adequate legal basis and without prior legal authority, it generated a crisis in the Government's constitutional function as the highest organ of public administration.
The President's second complaint concerned a possible violation of the principle of equality since the provisions under scrutiny seemed to establish situations of advantage and discrimination, without an adequate substantive basis.
Lastly, the President of the Republic alleged a possible violation of the principle of the protection of the trust and legitimate expectations of citizens as a corollary of the principle of the democratic state governed by the rule of law since there would be retrospective application of special rules.
In its final decision, the plenary assembly of the Constitutional Court ruled that the provisions under scrutiny were not unconstitutional with reference to the principle of the separation and interdependence of the organs of supreme authority, but that the first two articles of the decree concerned were unconstitutional because, taken together, they conflicted with the principles of legal certainty and equality (particularly the principle of equality of access to higher education). As a result, it also ruled that the other provisions of this decree were unconstitutional.
Several judges issued a dissenting opinion on some of the questions of unconstitutionality.
The constitutional provisions referred to were Articles 114, 185 and 202 of the Constitution (separation and interdependence of organs of supreme authority, definition of the Government, administrative powers of the Government respectively) and in particular - since they were referred to explicitly in the final decision - Articles 2, 13 and 76 of the Constitution (democratic state based on the rule of law, principle of equality, university and access to higher level education respectively).