“Specific regional interest” as a requisite for competence on the part of a regional legislative authority
Regional interest criterion
Application of norm over time
RULING Nº 246/05
10 of May of 2005
Whether a provision of ordinary law may be unconstitutional from the organisational and procedural standpoint is judged according to the constitutional rules in force at the time of its adoption, all subsequent modifications of the standard by which constitutionality is determined being immaterial in principle. Since the question at issue belongs to the legislative competence, it is inferred that the standard for determining the constitutionality of the provisions in question is the one applicable at the date of issuance of the provisions sub judice, being the body of law which governed the legislative power of autonomous regions prior to that resulting from the sixth revision of the Constitution. The subsequent constitutional amendments are therefore not of relevance for determining the constitutionality (in organisational terms) of a regional enactment.
The fact that matters specifically concerning the regions are designated by statute does not exempt a substantive evaluation according to the particulars of each case. However, the instant case does not involve a specifically regional interest - the issue of patients' stay in a hospital after receipt of their discharge does not concern the Autonomous Region of Madeira alone, and does not take any special form within that region.
A group of members of parliament applied to the Constitutional Court to evaluate and declare, with general binding effect, the unconstitutionality and illegality of the provisions embodied in a regional legislative enactment (passed by the legislative assembly of the Autonomous Region of Madeira on 24 February 2003) essentially intended to regulate the hospital stay of patients having obtained their discharge. This is a problem relating to both the health and social security spheres. The regime as established seeks to discourage the use of hospital services after patients receive their discharge, that is use of the services for purposes other than those for which they were instituted (their overloading requires patients and their nearest relations to contribute to the costs of hospitalisation, payable to the Regional Health Service).
It is therefore essential to verify whether the stated issues come within the scope of specifically regional interest under the terms of the Constitution (according to the version preceding the sixth revision). Although health and social security are not expressly included in the list of matters of specifically regional interest set out in the Constitution, they do appear in the list provided for in Article 40 of the Regional Statute. The list set out in Article 228 of the Constitution is not in fact exhaustive since it permits other matters to be designated "of specific interest" in the Regional Statutes, provided that such matters are of exclusive concern to the region or take a special form within the region. But the mere fact that health and social security are among the matters classified as being of "specific interest" by the Regional Statute of Madeira does not in itself suffice to meet the criterion of specifically regional interest, considering that according to Portuguese constitutional case-law and legal theory, the statutory enumeration of the subjects of specific interest is only indicative. It signifies nothing but the State's recognition (given that the political and administrative statutes are approved by State legislative enactments) of the possible regional specificity of certain situations.
In the present case, the point was to ascertain whether the Autonomous Region of Madeira had a specific interest in legislating in the sphere of health and social security. Such specific interest, prior to the sixth constitutional revision, was one of the prerequisites or criteria of regional legislative authority. Thus the case-law designating the specific interest of the regions as an independent parameter for the assignment of legislative competence (albeit invariably in accordance with the Constitution and the general laws of the Republic, and in matters not the sole province of the organs of sovereignty) still stood. It was one of the devices employed by the Constitution to regulate the system of division of powers between the State and the regional bodies.
All the available evidence showed that the problem of patients' stay in a hospital after receipt of their discharge was neither especially serious in the Autonomous Region of Madeira compared to the national situation, nor did it assume a special configuration there. The Court therefore concluded that there was no specific regional interest which would enable the legislative assembly of the Autonomous Region of Madeira to legislate with regard to hospital stay after granting of discharge.
The determination of the constitutionality of the enactment in question firstly raises a problem as to the time sequence of constitutional norms, in that the Constitutional Law leading to the sixth revision of the Constitution took effect during the period between publication of the impugned regional legislative decree and the present judgment.
One of the modifications brought in by this constitutional revision is simplification of the parameters establishing the boundaries within which regional legislative power can be exercised, accompanied by a widening of legislative powers for the autonomous regions. The changes are essentially as follows:
a. the category of general laws of the Republic (whose fundamental principles used to govern regional enactments) has disappeared;
b. the requirement of specific regional interest in affairs regulated by the regions has been eliminated (in so far as it creates prerequisites or criteria for their legislative authority).
The autonomous regions' legislative authority nevertheless continues to be supervised with regard to all the fundamentals of regional self-government provided for in Article 225 of the Constitution. It is moreover confined to the regional context and to the affairs specified in each region's political and administrative statute. Respecting the exclusive area of legislative power secured to the organs of sovereignty still remains as the condition under which the autonomous regions' legislative authority is exercised. As to Parliament's relative reserved legislative power, the regions, subject to parliamentary authorisation, may deal with the matters contained in the Constitution except where it provides otherwise.
Two distinct constitutional systems have operated in succession. It has to be ascertained how the sixth constitutional revision - giving rise to the extension of the autonomous regions' legislative authority - affects the constitutionality of the provisions at issue. The answer to the question put to the Court presupposes that the defects of unconstitutionality which might vitiate these provisions, and especially the nature of such defects, be considered, because the time sequence of constitutional norms produces a variety of effects that hinge on whether the impugned provision of ordinary law is unconstitutional at an organisational (or procedural) or a substantive level.