Limits on the legislative competence of autonomous regions; the “specific” interest of the autonomous regions as a “positive restriction” on autonomous regional legislative powers
Distribution of powers between central government and autonomous regional entities
Scope of autonomous regional power
Freedom of association
Promotion of women’s rights
RULING Nº 711/97
16 of December of 1997
The issue of equal status between men and women is of fundamental relevance to the organisational structure of the Portuguese State, as the promotion of equality between men and women is one of its basic tasks. The legal status of associations for women and the advancement of women's rights belongs to the realm of rights, freedoms and guarantees and as such falls within the relatively reserved legislative competence of the Assembly of the Republic.
Associations for the advancement of women's rights are legal entities governed by private law, as opposed to public associations, and enjoy certain guarantees as regards freedom of association (as enshrined in Article 46 of the Constitution).
«General laws of the Republic» are laws and decree-laws whose raison-d'être requires that they be applied without reservation to the whole of the national territory and which contain an express provision to this effect; their general principles must be observed by regional legislative decrees.
Even after the 1997 constitutional review, the «specific» interest of the regions continues to be a «positive restriction» on regional legislative powers while matters which fall strictly within the competence of the sovereign bodies continue to constitute a «negative restriction» on regional legislative powers.
The Minister of the Republic for the Autonomous Region of the Azores requested a preliminary review of the constitutionality of a legislative decree approved by the Regional Legislative Assembly on the registration of and rules governing associations for the advancement of women's rights, claiming that it was unconstitutional on organic, formal and substantive grounds.
According to the case-law of the Constitutional Court, matters falling within the (exclusive or relative) reserve of legislative powers of the Assembly of the Republic and of the Government, as well as all matters calling for intervention by the national legislative body according to the principles of State unity and national solidarity, i.e. those matters of immediate interest to citizens generally or which concern or affect the whole of the national territory, are matters falling entirely within the powers of the sovereign bodies and therefore fall outside the scope of power of the regional legislatures.
Moreover, case-law (and even the Constitution) defines matters which are of «specific» interest to the regions (as a «positive» restriction on regional legislative powers) as follows: «matters which exclusively concern each of the autonomous regions or which merit special treatment owing to their particular configuration within the region».
The Constitutional Court ruled that the instrument under review was unconstitutional, since the subject which it was meant to regulate was not of «specific» interest to the Autonomous Region of the Azores. The fact is that associations for the advancement of women's rights do not exist solely in this autonomous region, nor are they eligible for state technical and financial aid solely in this region. Various legislative acts at the national level (i.e. «general laws of the Republic») exist to safeguard the rights of women's associations and there are similar associations in several parts of the national territory, which have similar goals and claim similar types of aid from the public authorities. It is only right therefore that the regulations on this subject should be the same throughout the national territory, and that the autonomous region should be responsible simply for implementing them, within its territory, via regional regulatory decrees.
Two judges gave a dissenting opinion against this judgment.