The roots of local government in Portugal1 reach deep into the history of law: it is possible to trace their origin to Roman times (in the case of the municipality) and to the time of the evangelisation of the Iberian Peninsula (in the case of the parish).2
The origin of local governments (especially that of the municipality) is related to the inability of the central government (the Crown) to fulfil all of the country’s needs, and hence it was necessary to attend to the details of life in commonality.3Within the contemporary Portuguese constitutionalist framework that emerged from the Portuguese Liberal Revolution, the Constitution of 1822 contained provisions relating to district and municipal administrations (Arts. 212 and ff.). In turn, the Constitution of 1826 contained a title on the «administration and economy of the provinces» (Arts. 132 and ff.).
Albeit with some setbacks to the trend of centralisation (e.g., the Decree of Mouzinho da Silveira No. 23, dated May 16, 1832), a significant impulse of local government has taken place with the (legislative) reform of the Public Administration, due to the need of creating an administrative code. This does not mean, however, that the evolutionary trend in the legal treatment of local administration has been progressively oriented towards decentralisation, but rather, depending on the constitutional acts and administrative codes in force, we find centralising moments interspersed with decentralising ones.
The first Portuguese Administrative Code, dating back to 1836, divided the country into districts (distritos), which were then subdivided into minicipalities composed of one or more parishes (freguesias). It is important to note two relevant points: on the one hand, all these entities had a deliberative body elected by the inhabitants; on the other hand, they corresponded to what we nowadays define as public bodies designated for multiple purposes (for instance, the city hall—the deliberative body of municipalities—had the power to «consult and deliberate on all the municipality’s needs»).
In line with the movement between centralisation and decentralisation4 which characterized the evolution of Portuguese local autonomy, the successive Administrative Codes alternatively presented either centralising characteristics (such as in the Codes of 1842, 1886 and 1895-1896) or assumed a decentralising trend (such as in the Code of 1878).
The trend towards decentralisation was again present in the 1911 Constitution, of which Art. 266 contained a list of standards to guide the legislature in its task of generating rules relating to the organization and powers of the administrative bodies: here it was established that the executive power would not interfere in the activity of the administrative bodies; that their deliberations could only be modified or annulled by the courts (if invalid); that the district and municipal powers would be divided into deliberative and executive powers; and that the administrative bodies would be endowed with financial autonomy, adding the exercise of the referendum and the representation of minorities. In connection with this constitutional provision, the law regulating the organisation, functioning and powers of the administrative bodies was enacted (Law No. 88, of August 7, 1913, amended by Law No. 62 of June 23, 1916), which divided the territory into districts, communes and civil parishes.
The Constitution of 1933 returned to the rule of centralisation: while recognizing the existence of local authorities (autarquias locais) endowed with financial autonomy, Art. 126 (amended and renumbered as Art. 127 in 1936) provided for the local governments’ administration to be inspected by officials of the central government, and the deliberations of the governing bodies depended on authorization by other agencies or authorities and were subject to referendum and approval. Other constitutional characteristics of the trend towards centralisation were consolidated by the Administrative Code of 1936-1940 (subject to several reviews). Worth emphasising in this period are the following: the nomination of the mayor, who is now a State body, by the government; the significant increase in State powers that reduced the range of powers of local governments; and the progressive change of the autonomous administration to indirect State administration.
This situation changed only with the Portuguese Constitution of 1976, currently in force.5
Under Art. 6 of the Constitution, Portugal is a unitary State which implements, inter alia, the principles of local governments6and of the democratic decentralisation of public administration. This same idea is confirmed by paragraph 1 of Art. 267 of the Constitution, which makes decentralisation the ruling principle of administrative organisation, and Arts. 235 and ff., which relate to local government.
Under paragraph 2 of Art. 235 of the Constitution, local authorities (autarquias locais) are defined as «territorial collective people with representative bodies, which seek to pursue the interests of the respective local community.» Paragraph 1 of Art. 236 of the Constitution outlines three categories of local authorities: (a) the administrative region (região administrativa); (b) the municipality (município) and (c) the parish (freguesia).
(a) The administrative regions constitute the first tier of local government, which aims at pursuing the interests of the local people—this requires an intermediate tier between national and municipal7levels. Among others, they have responsibilities for economic and social development, planning, environment, nature conservation and water resources, equipment and means of social communication, education and professional training, etc. (see Arts. 1 and 17 of the Law No. 56/91 of August 13—Framework Law of Administrative Regions). Although recognised in the legal system, administrative regions are not yet actually established. Under Art. 256 of the Constitution, the institution of the administrative regions, accompanied by the adoption of the law of creation of each institution, depends on the referendum, i.e., on the favourable vote by a majority of voters who have expressed their choices in direct consultation of the regional scope and for each regional area. The existence of a double legislative effort should be emphasised, as the result of the aforementioned Law No. 56/91, which established the
general principles on the matter (specifically, the terms of creation) and clarified the respective powers and bodies, and of Law No. 16/98 of 28 April (the law creating administrative regions). As stipulated in the aforementioned Art. 256 of the Constitution, the creation in particular of administrative regions was submitted to a referendum. The constitutionality and legality of this proposal was examined and positively verified by the Constitutional Court through Ruling No. 532/98 of 29 July.8On 8 November 1998, a referendum on regionalisation was held. It included two questions: «Do you agree with the establishment of specific administrative regions?» and «Do you agree with the actual institution of the specific administrative region in your area of voter registration?» Although the abstention rate was over 50%, 60.67% of voters responded negatively to the first question, and 60.62% responded negatively to the second. To date, no other referendum procedure on the matter has been held.9(b)
The municipality has a local government which aims to meet the community’s own interests through the district council. Portuguese municipalities therefore correspond to the communes of French law and the Gemeinde of German law. (c)
The parish is a sub-municipal local government which aims to pursue the personal interests of the parish community.
In Portugal, the most important international instrument in force on local government is the European Charter of Local Self-government (ECLSG). The Portuguese government signed the ECLSG on 15 October 1985.10Since it is an international agreement, the ECLSG is in force pursuant to paragraph 2 of Art. 8 of the Constitution. Under this provision, «the norms contained in international conventions duly ratified or approved, shall apply at internal level following their official publication, while internationally binding the Portuguese state.» Most of Portuguese academia, basing their opinion on
the principle of hierarchy, support the legal (although...