Prior review of the constitutionality and legality of a local referendum – rental of a plot of common land
RULING No. 96/12
28 of February of 2012
Common land – land possessed and managed by local communities – is used and enjoyed in accordance with the decisions taken by the competent bodies of the common owners. The latter are the residents of one or more parishes or parts of parishes to whom usage and custom afford the right to use and enjoy that land. The universe of common owners constitutes the local community.
The Constitution expressly provides for local referenda. It says that local authorities may submit matters which are included among their organs’ competences to referendum by their registered electors. The parish is one of the entities included in the concept of ‘local authority’.
However, inasmuch as the object of a local referendum can only be a question of important local interest which falls within the competences of the local authority organs (whether those competences are exclusive, or whether they are shared with the state or the autonomous regions) and which must and can be decided by them, the initial question that must be answered in order to assess a local referendum’s legality is whether or not that competence exists.
The ordinary law that establishes the framework of competences which pertains to parishes says that parish councils possess the specific competence to administer or use common land whenever no assembly of common owners exists. In the present case there was an Assembly of Common Owners of the land in question, and so the existence of a specific competence on the part of the parish authority bodies in this matter was excluded. It was therefore not those parish bodies’ place to decide about matters regarding that common land. Nor did the parish bodies share any important authority with the assembly of common owners, inasmuch as the Law governing Local Referenda says that local authority organs can only share such authority with the state (on the mainland) or the autonomous regions.
The Constitutional Court therefore held that a draft local referendum submitted to it by the chairman of the parish assembly was illegal.
Under the terms of the organic law that approved the legal regime governing local referenda, the chairman of a parish assembly asked the Constitutional Court to conduct a prior review of the constitutionality and legality of an assembly decision to submit to referendum the question of the rental of a piece of common land owned by the parish for the purpose of building a factory for the transformation of animal-meat sub-products.
Common land is composed of plots of community land that cannot be the object of commercial legal transactions and cannot be privately appropriated in any way whatsoever, including acquisition by prescription. It is used and enjoyed by residents of one or more given parishes. Its legal nature is that of community property which is in the possession and under the management of local communities.
Community means of production (which include common land) were expressly constitutionalised in the original version of the 1976 Constitution, which referred to community assets that were usefully possessed and managed by their local communities as being an integral part of the public sector of the economy. This constitutional guarantee was actually strengthened by the 1989 constitutional revision, which transferred community assets that were possessed and managed by local communities from the public sector to the cooperative and social sector, thereby reaffirming their specific nature and the autonomous domain over them.
As a consequence, ownership of and domain over common land pertain to a collectivity/community of inhabitants that is not the same thing as a collectivity of a local territorial authority nature. This means that in constitutional terms the local communities in question hold their collective rights – be they rights of enjoyment, use, or domain – in the quality of communities of inhabitants to which the principles of self-administration and self-management apply.
There is thus a distinction between community ownership and public property, as well as a difference between civic domain and public domain.
The Constitutional Court emphasised that prima facie, considering the draft referendum (the object of the proposed referendum) from a material point of view, no possible result of any popular consultation could ever require the undertaking of acts that are not in conformity with the Constitution.
The important issue in the present case was whether, in the light of the community nature of this type of property and the autonomy which local authority organs in principle enjoy with regard to the assets that belong and are subject to the administration of local territorial collective authorities, the administration of common land is included in those organs’ competences.
The law allows assemblies of common owners to decide to dispose of limited areas within common land, for compensation and by means of a competitive public request for tenders, but only in the cases and under the circumstances provided for by the law itself. In practical terms this disposal corresponds to the partial abolition of the status common land itself. If one were to accept that it is possible to delegate administrative powers to a parish council in such a way as to include a competence to dispose of part of a piece of common land, this would also imply accepting the possibility that the council could abolish the common-land status of part of the land itself. This is not a result that would be compatible with the regime governing the possession and enjoyment of this type of community asset.
If an assembly of common owners exists, only the competences that specifically pertain to its executive council can be delegated to the local parish council. Thus, inasmuch as it is the assembly and not its executive council that has the competence to decide to stop making use of the common land, the parish council cannot take any such decision, because it does not have the competence (delegated or otherwise) to do so.
The local referendum is not a new format in Portugal – it was initially introduced in the first Constitution passed under the republican regime (the 1911 Constitution). However, in practice it has been very infrequently employed, and the legal theorists consider that the Constitutional Court’s jurisprudence on it is both demanding and restrictive.