Electoral Law – Registration of political parties – Submission of candidacies
General principles of Electoral Law;
Submission of candidates;
Admission of candidates;
Influencing the will of the people;
Right to political participation;
Limits on fundamental rights;
Restriction of fundamental rights;
Principle of proportionality.
RULING No. 178/15
11 of March of 2015
The Constitutional Court denied an appeal lodged by a political party and confirmed the lower court’s decision not to admit the party’s first list of candidates for election to the Legislative Assembly of the Madeira Autonomous Region (RAM), because it had failed to comply with a RAM Legislative Assembly Law norm under which a political party can only submit a list of candidates if the party itself was registered by the beginning of the submission window.
The Court noted that the exercise of the fundamental right to participate in democracy by taking part in elections is subject to formal constraints, whose dual purpose is to ensure that that participation is serious and that elections are the object of healthy competition. It took the view that the norm in question does not constitute a ‘restriction’ on a fundamental right, but rather the lesser format ‘limitation’, and so cannot be invoked as grounds for the norm’s unconstitutionality. Moreover, even if one were to admit that some degree of review of the proportionality of limitations on the exercise of fundamental rights were possible, in the present case the Court considered the condition imposed by the law to be both appropriate and necessary. Appropriate, because it makes it possible to fix the moment in time at which everyone knows what parties and coalitions are capable of taking part in the elections and allows electoral strategies to be adjusted accordingly. Necessary, because it is indispensable to ensuring the public is aware of all the competing political forces in each election and enabling voters to know exactly when candidacies can be submitted.
The Court held that preventing political parties from submitting candidates when they have already registered as a party, but did so after the beginning of the submission window, does not arbitrarily or disproportionately condition, limit or restrict those parties’ constitutionally protected rights.
The Court was also of the opinion that this norm does not directly undermine the constitutional right of citizens to take part in political life and the management of the country’s public affairs. One possible issue might be the constitutional right of political parties to compete democratically in order to influence the will of the people and organise the political power (in the sense of the tripartite separation of powers), but this is precisely the right that explains the legal requirement for parties to already be registered with the Constitutional Court on the first day on which it is possible to submit candidacies.
Recognition of a political party’s legal personality is dependent on that party being registered, and registration is thus constitutive and not merely declarative in nature. Prior to its registration the political party does not exist, and the Portuguese legal system does not admit the formal existence of unregistered political parties. If it is not registered with the Constitutional Court, there is no political party, but just an association with political ends to which the legal regime governing political parties and the rights pertaining to them does not apply.
Besides the specific competences to review of the constitutionality of norms and declare them (abstract review) or find them (concrete review) unconstitutional that pertain to it as the constitutional review organ per se, the Constitutional Court is competent with regard to other matters, particularly electoral processes. One of the latter was the object of the present case, in which the Court analysed a party’s appeal against a decision in which the Funchal Court denied its application to submit a list of candidates for election to the Legislative Assembly of the Madeira Autonomous Region.
At issue here was the constitutionality of an article in the RAM Legislative Assembly Electoral Law, under which candidacies can only be submitted by political parties, but those parties must have been registered by the beginning of the time window for that submission.
The Funchal Court applied this norm and thus refused to admit the list of candidates of a party whose registration with the Constitutional Court was only completed after the window had already opened (albeit before it ended). The appellant political party argued that the norm was unconstitutional because it was in opposition to the right of citizens, acting via lawfully constituted political parties, to compete democratically in order to influence the will of the people and organise the political power, and because it prevented an indeterminable number of citizens who would have voted for the party from taking part in the Region’s political life via the Members of the Legislative Assembly they would otherwise have elected.
The Constitutional Court began by noting that in general, electoral laws, including those of countries where democracy is fully consolidated, impose a variety of formal conditions on electoral processes: deadlines, documentary requirements, certifications, and even the payment of deposits, as in countries like France and the United Kingdom. The electoral process is a sequence of stages that are delimited in time, and the setting of time limits is inevitable. What is more, it is a competitive process, because from day one it implies the certain identification of the universe of competing parties and coalitions.
The constitutional norms the appellant considered to have been violated do not contain restrictions on a fundamental right in the strict sense of the term ‘restriction’, but rather limits on such rights. Unlike restrictions, limits do not concern the right itself, but the way in which it can be exercised. As the Universal Declaration of Human Rights says, when it comes to exercising rights and freedoms everyone is subject and only subject to the limitations imposed by law, and the only goals of such limitations must be to guarantee that rights are recognised and respected and that the just demands made in the name of morality, public order and the well-being of a democratic society are fulfilled.
The Ruling was the object of a dissenting opinion whose author pointed out that the right to compete democratically via political parties in order to help influence the will of the people is one of the constitutional rights, freedoms and guarantees that pertain to citizens. He said this means that limitations and conditions on exercise of the right must be justified by constitutionally important interests and comply with the principle of proportionality. The members and supporters of the party in question were prevented from exercising this right, notwithstanding the fact that it submitted its list of candidates before the final legal deadline for doing so. The sole justification for this was the fact that only political parties are recognised to possess the power to submit candidacies, and then only when the party is registered by the beginning of the submission window. In the present case, the party was not yet officially formed when the window opened, although the formal process of constituting it at the Constitutional Court had already begun nearly two months earlier. The resulting registration only occurred later on for reasons that had nothing to do with the applicants. The dissenting Justice took the stance that the interests the limitation whose constitutionality was under review here was designed to protect ought to be concretely weighed up against the appellant’s constitutional-law position, and that it would only be justified for those interests to prevail if they were manifestly and irremediably injured by not observing the limitation. In his view the majority’s reasons for not accepting the appellant’s position were insufficient. Accepting that position would not have undermined the seriousness of the electoral process, given that the party’s intention to register itself and its formal request to do so were already public knowledge, and the party was not responsible for the reasons that prevented the registration from happening in time to meet the first of the legal deadlines for submitting candidacies. On top of all this, the second and final deadline was actually met and the need for all the parties and coalitions running for election to enjoy equal opportunities was thus fulfilled. The dissenting Justice said that the applicable legal and procedural norms were important, but were nonetheless accessory and merely instrumental when set against an applicable fundamental right.
Ruling no. 253/99 (4-05-1999).