Criteria for limiting the powers of a government that has resigned
Constitutional Court’s powers to hear cases
Government’s powers following resignation
Urgency of measures
Management of public affairs
RULING Nº 65/2002
8 of February of 2002
Measures taken by the Government after its resignation are naturally subject to scrutiny by the competent authorities. One of the steps in such scrutiny will be to verify whether the constitutional criterion of strict necessity is satisfied, whether it be political scrutiny effected by the President of the Republic, who may use his veto, or legal scrutiny involving the Constitutional Court.
The government must show the strict necessity of the legislative measures it approves, failing which it cannot demonstrate compliance with the condition for exercising the corresponding power. Both the explanatory memorandum and subsequent scrutiny must deal with two aspects: firstly, the objective claimed by the government, in relation to which the question of urgency will be of considerable importance; secondly, the actual measure approved for the purpose of achieving that objective. In this context, the explanatory memorandum and scrutiny thereof must concentrate on the question of appropriateness (which is now the material reference).
Since the scrutiny exercised by the Constitutional Court - in this instance preventive scrutiny of provisions approved by the government - is of a legal nature, it is necessary to specify what it consists of. In other words, it must be determined, in relation to the very vague concept of strict necessity, where the Constitutional Court's jurisdiction lies. The diminishment of the government's legislative powers does not entail transfer of the Constitutional Court's powers to the sphere of political options.
This observation applies to scrutiny both of the objective and of the choice of measure for achieving it.
Where scrutiny of the objective is concerned, the Constitutional Court must confine itself to ascertaining any incongruity or clear lack of foundation in the reasons given for the urgency of the measure - considering them from an objective point of view, and not simply that of the policies and programme defined by the government which is no longer in office. In relation to that objective, it must consider whether there is any manifest discrepancy between the aim pursued and the measure proposed. It cannot, for example, save in the event of an obvious error, reject the legislator's judgment as to the probability of attaining the objective, particularly when that judgment involves mainly technical assessments. Otherwise, the Constitutional Court would be encroaching on the legislator's (in this case, the government's) preserve by venturing into the sphere of criticism of political options.
Lastly, in cases where there is a legal connection between an objective and a means, the reasons put forward by the government can be scrutinised by the Court as subjects falling within its jurisdiction.
The President of the Republic asked the Constitutional Court for a preliminary examination of the constitutionality of the provisions of various articles of a government decree which were possibly contrary to the Constitution with regard to the government's departure from office, as laid down in Article 186.5 of the Constitution (".... after its resignation, the government shall confine itself to measures strictly necessary for the management of public affairs"). This decree was passed to the President's office on 16 January 2002 for promulgation in the form of a legislative decree.
The President of the Republic wished to know whether the adoption of changes, whatever their merit, which the government considers important, concerning "the manner of appointment of technical management boards of hospitals and health establishments", "the membership of hospitals' technical boards" and the rules governing "hospitals' acquisition of goods and services" falls within the constitutionally recognised powers of a government after its resignation. He also affirms that it is not a question of appraising the "weighty political reasons" adduced by the government in support of the measure, but only of determining whether it must be regarded as a "measure strictly necessary for the management of public affairs".
The Prime Minister contended that none of the government proposals exceeded the powers of a government no longer in office. Firstly, because they do not constitute fundamental innovations, including only measures "to streamline hospital management (...) utilising rules already tested in the past or in current experiments". Secondly, because they "did not restrict the policy-making powers of the incoming government". Thirdly, they should be regarded as "strictly necessary for the management of public affairs" (...) because without them, in the health field the government cannot complete either the State budget, or that of the Stability and Growth Pact for 2002-2005 (...) submitted to the European Union in December 2001". Also, to explain the strict necessity of the changes, the government refers to the importance of hospital funding in the national health service and the length of time likely to elapse before the incoming government takes office.
The question of unconstitutionality arises from the "government's resignation in consequence of the acceptance of the resignation tendered by the Prime Minister" by virtue of the presidential decree of 17 December 2001. It is naturally related to the question of the constitutional definition of the powers of a government after its resignation.
The Constitutional Court had frequently pronounced on the constitutional definition of a government's powers after its resignation, holding that that definition entailed no restriction as to the nature of the measures, but that the decisive criterion was the strict necessity of carrying them out. There is no doubt that the issue is one of the form and substance of a legislative measure. The measure in question makes a considerable change in the legal rules currently applicable to the management of hospitals and health establishments. It is accordingly necessary to determine whether the legislative measures introducing important changes in the Portuguese legal system fall within the powers of governments which have ceased to be in office.
The nature of the measure is not important for circumscribing the powers of a government after its resignation; the decisive criterion that has to be analysed is that of strict necessity. For the Constitutional Court, this concept corresponds basically to that of urgency or the impossibility of deferment. The Constitutional Court has previously stated in its case-law that the concept of strict necessity includes a margin of relative uncertainty. It follows that its definition may be inferred from two indicators: firstly, the great importance of the interests at stake, such that failure to take the measure could seriously impair the management of public affairs; secondly, the impossibility of deferment, i.e. the impossibility, without causing grave damage, of leaving it to the incoming government to resolve the problem, or of resolving it after appraisal of the same government's programme.
In conclusion, the Court decided that the provisions in question are not unconstitutional because they are not contrary to the constitutional condition whereby they must be strictly necessary in accordance with Article 186.5 of the Constitution.
The Constitutional Court held that regarding the objective which the government sought to achieve by means of the decree - the reduction of expenditure by hospitals and health establishments, having regard to their importance in public expenditure as a whole - the constitutional requirement of strict necessity was satisfied. Similarly, it held that the urgency or impossibility of deferring the measure were also demonstrated.
Lastly, it had to be determined whether the strict necessity revealed by the measure's objective, considered in the abstract, could also be used to justify adoption of the provisions contained in the decree. In other words, it had to be determined whether the provisions were appropriate to the achievement of the stated objectives. Within the limits of the Constitutional Court's powers of appraisal in scrutinising the reasons for governments' acts after their resignation, it may be reliably concluded that the explanation provided by the government is neither incongruous nor obscure, and does not justify a finding that the measures adopted were manifestly inappropriate to the objective pursued. The Court must verify only whether they comply with the minimum parameters imposed by a general requirement of appropriateness and proportionality; no grounds were found for doubting that the measures in question complied with those parameters.
The Constitutional Court has frequently given rulings on the restriction of governments' powers after their resignation, in respect of various measures adopted in identical circumstances. The sphere of competence of an outgoing government is not defined in the original text of the Constitution, but it is dealt with in Article 186.5 of the Constitution of the 1982 revised version, which stipulates that "(...) the government shall confine itself to measures strictly necessary for the management of public affairs".
Judgment 56/84 concludes that it "was clear that the government, after its resignation, is not restricted as to the nature, form or substance of measures (it may, in the political, legislative and administrative fields, take any measures except those which are in essence incompatible with the institutionally irregular situation)". The line followed in Judgments nos. 142/85, 427/87, 2/88 and 111/88 is the same.