Portugal - The Judiciary

More about the Government of Portugal.

The judiciary

The constitution provides for the Constitutional Court; the Supreme Court of Justice and the Supreme Administrative Court, both of which have subordinate courts; and a variety of special courts, including a military court system. It states that the courts are the "organs of supreme authority competent to administer justice in the name of the people." The courts are also designated as "independent and subject only to the law."

The Constitutional Court, called into existence by the constitutional reform of 1982, judges whether legislative acts are legal and constitutional. Among other duties, this court also ascertains the physical ability of the president to carry out presidential functions and to examine international agreements for their constitutionality. Ten of its thirteen members are chosen by the Assembly of the Republic.

The Supreme Court of Justice is designated the "highest court of law," but "without prejudice to the jurisdiction of the Constitutional Court," and heads the court system that deals with civil and criminal cases. The courts of first instance (the first courts to try a case) are the municipal and district courts; the courts of second instance are, as a rule, courts of appeal. As of the early 1990s, there were four of these latter courts. The Supreme Court of Justice may serve as a court of first instance in some cases and as an appeals court in others.

The Supreme Court of Administration examines the fiscal and administrative conduct of government institutions. It is not concerned with the state's political decisions or legislation. One section of this court deals with administrative disputes; below it are three courts of first instance. Another section deals with tax disputes and is supported by courts of first and second instance. In addition to these courts, there is a Court of Audit situated in the Ministry of Finance.

Overseeing the nominations, training, promotions, transfers, and professional conduct of Portugal's judges are the Higher Council of the Bench and the Superior Council of the Administrative and Fiscal Courts. These bodies have the right to discipline judges whose conduct does not comply with the law. Also looking after the rights of the citizens is the ombudsman, elected by the Assembly of the Republic for a four-year term. In the early 1990s, this official received some 3,000 complaints a year from Portuguese who felt they had been improperly dealt with by state institutions.

The Portuguese legal and judicial system was based on Roman civil law and was heavily influenced by the French system. It differed from the United States or British legal systems in that a complete body of law was found in the codes. As a result, judicial reasoning was deductive, and prior cases or precedent played little role. A judge was therefore seen mainly as a civil servant whose role was to discover and apply the appropriate law from the codes, not to interpret it or to apply new sociological findings. Hence, judges enjoyed less prestige than in a system based on common law. In addition, law was seen as more fixed and immutable than in the United States, although over time it did change. The historically authoritarian nature of Portugal's system of government was often attributed to this centralized and hierarchical legal system.

Portugal's legal system was considered relatively fair and impartial. During the Salazar regime, the courts were loyal servants of the New State, and high officials of the regime were all but immune from judicial proceedings. After the Revolution of 1974, Salazar-appointed judges were largely removed in favor of revolutionary ones, and certain groups--such as workers and peasants--were often favored over owners and employers before the law. With time, however, the courts came to function with greater impartiality. Most criticism centered on the fact that the courts were slow and overburdened. Long periods of time were often required for the legal system to deal with even routine matters, nor did the courts adequately keep pace with new judicial issues, such as drugs and white-collar crime.

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