Proportional representativity of political parties
Political status of an autonomous region
Representativity of a political party
RULING Nº 199/2000
29 Of March of 2000
Article 113 of the Constitution lays down the general principles of electoral law and stipulates that direct, secret, regular elections are the general rule in appointing the members of the elected organs of supreme authority, the autonomous regions and local government (Article 113.1 of the Constitution) and that the votes cast are converted into seats in accordance with the principle of proportional representation (Article 113.5 of the Constitution).
The principle of proportional representation is reiterated in other provisions of the Constitution, on the election of members of the Assembly of the Republic (Article 149.1 of the Constitution) and the election of local authority assemblies (Article 239.2 of the Constitution). But it also concerns the organs of government of the autonomous regions, Article 231.2 of the Constitution stipulating that the regional legislative assembly is elected by direct, secret, universal suffrage in accordance with the principle of proportional representation. Indeed, the principle of proportional representation is so important to the functioning of the Portuguese electoral system, and even to the fabric of the democratic regime, that it is one of the areas where revision of the substance of the Constitution is subject to restrictions (Article 288.h of the Constitution). In Portuguese constitutional law, therefore, the fundamental principles of the electoral system are not freely open to amendment by the legislature.
For the election of representative assemblies proportional representation is, by definition, the fairest electoral system from the point of view of political party representation; the principle is that as close a correlation as possible is achieved between the votes cast and the seats allocated, the rule being that seats are generally awarded according to the percentage of votes won by the different candidates or parties. Proportionality in the allocation of seats, however, depends on several factors, including the type of electoral system adopted, the method used to count the votes, or the number of seats to be filled in each constituency, i.e. the size of the constituency.
The Constitutional Court was asked by a group of members of the Assembly of the Republic to carry out an abstract ex post facto review of the constitutionality of a provision of the political and administrative statutes governing the autonomous region of Madeira, and a similar provision of the electoral law of the regional legislative assembly of Madeira, in respect of the principle of proportional representation enshrined in Articles 115.5 and 231.2 of the Constitution.
Under the provisions concerned, each constituency, when electing the regional legislative assembly, elects one member for every 3,500 registered voters plus one if the residual voters total more than 1,750. In practice, this means that two municipalities in the region are single-seat constituencies.
The principle of proportional representation is supposed to apply to all constituencies, but allowing for such single-seat constituencies, even in the context of a proportional representation system - unless combined with other vote-counting mechanisms or methods, such as the "highest remainder" system or the method provided for in Article 149.1 of the Constitution - does not guarantee proportionality in the conversion of votes into elective office.
The Court therefore declared both provisions unconstitutional, with general binding force.
The Court had already, in two previous judgments, ruled on the compatibility of elections involving only single-seat constituencies (in certain constituencies or municipalities in regional elections) with the constitutional principle of proportional representation. In Judgment 183/88 the Court ruled, in preliminary review, that a provision of a decree of the Assembly of the Republic was unconstitutional because it effectively created a third electoral constituency consisting of a single-seat. And in Judgment 1/91 it ruled that proportional representation called, in principle, for a list system in each constituency, as elections with single-seat constituencies invariably led to majority representation.
On the subject of the statutes of the autonomous regions and electoral systems, see also Judgment 630/99, Bulletin 1999/3