Transposition of constitutional principles into the internal affairs of political parties
Principles of democratic party organisation
Rules on transparency
RULING Nº 304/03
18 of June of 2003
The rule requiring dissolution of a political party that fails to put up candidates at two successive general parliamentary elections is an excessive and therefore unacceptable restriction on parties' freedom of activity. The rule is thus unconstitutional, being contrary to the principle of proportionality and parties' freedom as guaranteed by Articles 2, 46.2 and 51.1 of the Constitution.
Rules requiring that party office bearers be dismissed if found guilty of a criminal offence, or convicted of involvement in a constitutionally prohibited organisation, may be considered as amounting to loss of rights "as an automatic consequence" of conviction of certain types of crime. The Constitution, however, presupposes a general rule that conviction and punishment must not give rise to automatic additional penalties based on the nature of either the sentence or the crime. Even if it is thought that a person's conviction for certain crimes may reasonably call into question his or her integrity and suitability for political activity, inasmuch as it suggests he or she cannot perform important duties within the party apparatus, he or she may be dismissed only after disciplinary proceedings in which an independent body makes a detailed assessment of the offence to see if dismissal is justified.
The requirement that voting be conducted on an individual basis is justified under the same principles, part of the purpose of direct voting being - without unacceptably encroaching on the rights of persons concerned - to foster the honesty, freedom and reliability that should characterise electoral choices. The rule that party voting must be by individual secret ballot is not therefore in breach of the Constitution and is not disproportionate from the standpoint of freedom of association.
The President of the Republic sought a prior review of the constitutionality of three provisions of a parliamentary decree submitted to him for promulgation as an organic law on the organisation of political parties and completely replacing the first (1974) law on the organisation of political parties.
The Court noted that, with the role of the state shifting from a liberal to a social one, the subject of political parties had assumed a legal and constitutional dignity that it had lacked in the second half of the 19th century and the early decades of the 20th century. In Portugal this change had become particularly obvious with the fourth revision of the Constitution (in 1997), the aim of which had been to transpose explicitly into parties' internal workings a number of constitutional principles, including constantly improved internal pluralism, a multi-centred approach, transparency and strictly democratic procedures. At the same time it had been recognised that parties had very important rights of their own and that the state had certain duties in respect of parties, notably with regard to funding, assets and accounts. For that reason the principles of democratic party-organisation were binding on all political parties, parties must be governed by rules on transparency and on democracy of internal proceedings and management systems, and all party members must have the right to participate.
The nature of mass political parties, which had started out as purely private bodies, had thus come to assume considerable constitutional significance, with the result that political parties today could be regarded as a separate species from other types of organisations generally provided for in current legislation. In other words, parties were groupings that were both private in character and constitutionally important and they were fundamental components of the political system inasmuch as they were entrusted - in some cases exclusively - with helping to organise and express the will of the people.
A further and no less important dimension had been the embodiment of certain other principles - alongside freedom of association and the freedom to establish political parties - concerning parties' internal organisation. These included the principle of democracy and acceptance of restrictions as to parties' programmes, ideology, names, emblems, origins and supervision by the courts.
The democratic principle had two kinds of practical implications within parties: one substantive and concerned with members' basic rights, the other structural, organisational and procedural.
With regard to the provisions on dismissal of party office bearers, the President of the Republic was unsure about compatibility with the guarantee in Article 30.4 of the Constitution that a criminal conviction must not result, in law, in automatic loss of rights. It would be a restriction on the exercise of a political right if dismissal was the automatic consequence of conviction, without any procedure for examining the circumstances of the case. A considerable body of Constitutional Court case-law on Article 30.4 established that ordinary legislation could not institute any system of double punishment under which persons convicted of specific crimes automatically, and as a consequence of the conviction, lost certain rights. In other words, the effect of the Constitutional provision was to prevent loss of rights - following criminal conviction - by direct application of the law. The rules at issue were therefore unconstitutional, being contrary to Article 30.4 of the Constitution.
Lastly, with regard to the rule that party elections should be conducted on the basis of individual secret ballot, the President of the Republic had asked whether such provision breached the constitutional guarantee afforded by Article 46.2. That article was not concerned specifically with political parties but with associations in general. It provided that associations could pursue their objectives freely and without interference from any public authority, and that they could not be dissolved by the state or their activities be suspended, unless by judicial decision in circumstances prescribed by law. It was generally recognised that, under the Constitution, the rule governing democratic expression of the national will and exercise of the political vote - namely direct secret suffrage - went hand in hand with that democratic principle. It was a necessary feature of all elections provided for (notably in Articles 10.1 and 113.1 of the Constitution). The Court found this procedural requirement to be justified on the one hand by a concern to safeguard voters' basic rights, in that the secret ballot undoubtedly reinforced the authenticity and integrity of a vote, and on the other hand because it lent democratic credibility to parties' political activities.