The unconstitutionality of granting the ability to vote to persons who were born in the Azores but live outside the region, under terms that differ from those applicable to other Portuguese citizens
Political status of an autonomous region
Limits on the powers of regional organs
RULING Nº 630/99
17 of November of 1999
Article 225 of the Constitution (4th Revision/1997) draws attention to the special political and administrative arrangements for the archipelagos of the Azores and Madeira (which are autonomous regions with their own political and administrative statutes and government bodies). Portuguese regionalism is based on the geographic, economic, social and cultural characteristics of these regions, with the main purpose of self-government being to encourage citizens to take an active part in democratic life and economic and social development and to respect and defend regional interests. These aims are consequently closely linked to the geographic area of the region and the people living there.
Article 227.1 of the Constitution defines the autonomous regions as territorial corporate entities (prior to the 1997 revision of the Constitution, they were defined only as "corporate entities in public law"). The limits of the powers of the regional government bodies are therefore determined by the territory, and the citizens living there, whether or not they were born in the region, are the human substratum of the legal entity.
The principle of the unitary State is affirmed above all in Article 6.1 of the Constitution, which also provides that this principle co-exists, in terms of its organisation and how it operates, with the self-governing system of the island regions, although "regional political and administrative autonomy shall in no way derogate from the complete sovereignty of the State" and must be exercised "in accordance with the Constitution" (Article 225.3 of the Constitution).
The establishment of a constituency (for election of the regional legislative assembly) that is composed of citizens born in the autonomous region and residing elsewhere, be it in Portugal or abroad, is incompatible with the principles of State unity and unity of citizenship. Such a body of voters would be inconsistent with the strictly territorial nature of the region and would imply the creation of a personal status, that of regional sub-citizen, that would be incompatible with the existence of a single body of Portuguese citizens and the unity of the State.
The Constitutional Court was asked by the Provedor de Justiça (Ombudsman) to carry out an ex post facto abstract review of the constitutionality of two provisions of the political and administrative statutes governing the autonomous region of the Azores. According to the first provision, there were two additional constituencies for regional legislative assembly elections (each of which elected one regional representative). One was composed of citizens born in the region and residing in another part of Portugal while the other was composed of citizens born in the region and resident abroad. According to the second provision reviewed by the Court, the electorate for these constituencies was composed of all Portuguese citizens born in the Azores and residing in the area in question.
The Court unanimously declared, with general binding force, that both provisions were unconstitutional on the ground that they breached the principles of unity of citizenship (Article 4 of the Constitution) and unity of the State (Article 6 of the Constitution), given the strictly territorial nature of the system of regional self-government and the fact that it is limited by the principle of the complete sovereignty of the State (Article 225 of the Constitution).
However, the Court did not settle the question of whether the regional legislative assemblies are authorised to rule on election matters or whether responsibility for such decisions rests exclusively with the Portuguese Parliament.
Similar provisions laid down in the political and administrative statutes governing the autonomous region of Madeira had already been ruled unconstitutional by the Court in its Judgment no. 1/91 of 22 January 1991 when it ruled on a number of intricate questions of regional and electoral law in the context of a preliminary constitutional review.