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Parliamentary Group

DRAFT LAW NO. 254 /X

AMEND THE LAW N. º64/93 OF August 26 (ESTABLISHES THE SCHEME

LEGAL OF INCOMPATIBILITIES AND IMPEDIMENTS OF THE

HOLDERS OF POLITICAL OFFICE AND HIGH PUBLIC OFFICE)

Exhibition of Motives

The Act No. 64/93 of August 26, amended successively by the Law No. 39-B/94 of 27

of December by Law 28/95 of August 18 by the Law No. 12/96 of April 18, by the

Law No. 42/96 of August 31 and by Law No. 12/98 of February 24 established the

legal regime of incompatibilities and impediments of the organ holders of

sovereignty and political office and holders of high public office.

Regardless of the appreciation of the virtualities of the legal system created in this

set of legislation, neither the initial diploma nor the successive amendments have resolved

a question posed from the very beginning-that of not considering the Deputies of the

Regional Assemblies of the Azores and Madeira as holders of political office for

effects of the application of that legal regime.

Article 1º of the Legal Regime of Incompatibilities and Impediments of the Titular of

Political Office and Senior Public Charges covers only the Ministers of the Republic

for the Autonomous Regions (now Representatives of the Republic), the members of the

Regional Governments, the Ombudsman, the Governor and the Deputy Secretaries of

Macau, the President and the full-time Vereadores of the Municipal Chambers and the

Members of the European Parliament.

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Being overly evident that they should be eliminated from this enumeration the Governor and

the Adjoined Secretaries of Macau, interests fundamentally to question why of the

non-inclusion of the Deputies of the Regional Assemblies of the Azores and Madeira, and if the

same makes some sense or if, on the contrary, it creates a zone of political power not

covered by the general scheme relating to incompatibilities and impediments.

Obviously, the explanation of that non-inclusion is not the regional autonomy that would allow

own and possibly distinct statutes, given that the members of each Government

Regional are covered by the Act and it has never been raised-nor could it be

unconstitutionality of that standard.

The Constitution of the Portuguese Republic considers as the organs of government of the

Autonomous Regions the Regional Assemblies and the Regional Governments, ascribed to the

first legislative powers and the second exclusively executive powers in the

total dependence of the Regional Assemblies.

Thus, if the Legal Regime of Incompatibilities and Impediments of the Titular of

Political Office and Senior Public Charges considers, and well, as officeholders

politicians the members of the Regional Governments, for a majority of reasons should also

to consider Members to the Regional Assemblies by subjecting them to the respective

regime.

By not including this political office among those listed, the Legal Regime of

Incompatibilities and Impediments of the Titular of Political Charges and High Offices Positions

Public, which is intended to be general and national, has created an area of exception, to which

gives azo, inter alia, to which these political officeholders-the Deputies of the

Regional Assemblies, are not covered, among others, by impediments

provided for by Article 8º of the said diploma.

There is therefore no serious argument that allows to keep from outside the scope of the

Legal Regime of Incompatibilities and Impediments of Cargo Titular Titular

Politicians and of Senior Public Charges, these holders of political office. Not so little

if it is argued that the Critical Administrative-Administrative Statutes of the Autonomous Regions

solve this issue, for beyond the discussion on whether or not they could do it, in the

case of the Polar Status-Administrative Region of the Autonomous Region of the Azores is not

addressed the issue of the mismatches and impediments of MPs though the

Political practice has always guaranteed the consonance with the Act, and in the Political Status-

Administrative of the Autonomous Region of Madeira, the incompatibilities and impediments

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predicted fall short of those stipulated by the scheme that is intended to be general and practical

policy is open and violently contradictory to that defined by the Law.

The Constitution sets out, in paragraph 2 of its Article 117º, that " The law has on the

duties, responsibilities and incompatibilities of the holders of the political office, the

consequences of the respective default, as well as on the respective rights,

perks and immunities ". In paragraph 7 of Article 231º, it is determined that " The status of the

holders of the self-governing bodies of the autonomous regions is defined in the

respective political-administrative statutes ", endo though to the Assembly of the

Republic to approve these bylaws as well as the electoral laws applicable in the regions

autonomous (Article 161º). There is therefore no doubt that there are only two avenues

legislative to obtain the uniformity of the incompatibility regimes and

impediments throughout the Republic: or on the initiative of the Assemblies themselves

Regional for the conformation of its political-administrative status with the Law, through

of amendment of that to be submitted to the Assembly of the Republic, or, in its absence, by the

initiative of the Assembly of the Republic to determine the application across the territory

of the same law on incompatibilities and impediments.

In the case of the Autonomous Region of Madeira, this second route becomes necessary given

exist an exception regime that is adversarial with national understanding-and

certainly shared by the majority of the population of the autonomous regions-than it should

be the transparency and accountability of the exercise of elective public offices.

Now, regional autonomy does not require or justify any exceptions for the

regional deputies may be beneficiaries of contracts granted by the government

Regional, through companies of which they are owners.

De facto the Critical Status-Administrative of the Autonomous Region of Madeira, approved

by Law 13/91, June 5, amended by Law 130/99, August 21 and by Law 12/2000, 21

of June, regarding the matter of incompatibilities and impediments, determines:

" Article 34º

Incompatibilities

1. It is incompatible with the exercise of the term of office of Member of the Legislative Assembly

Regional the performance of the following posts:

a) President of the Republic, member of the Government and Minister of the Republic;

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b) Member of the Constitutional Court, the Supreme Court of Auditors and the Council

Top of the Magistrature and Ombudsman;

c) Member of the European Parliament;

d) Deputy to the Assembly of the Republic;

(e) Member of the remaining self-governing bodies of the Autonomous Regions;

f) Ambassador does not come from the diplomatic career;

g) Governor and vice-governor civil;

h) President and full-time councillor of the municipal chambers;

i) Employee of the State, the Region or other legal persons of public law;

j) Member of the National Election Commission;

l) Member of the ministerial offices or legally equated;

m) Employee of international organization or foreign state;

n) President and Vice-Chair of the Economic and Social Council;

o) Member of the High Authority for Social Communication;

p) Member of the boards of directors of public companies;

q) Member of the boards of directors of public capital companies

majority-owned by the State or the Region;

r) Member of the boards of directors of autonomous public institutes;

2. It is still incompatible with the function of Member:

a) the exercise of the functions laid down in Article 2 (2)

b) the exercise of the post of the delegate of the Regional Government in Porto Santo;

c) the exercise of the post of regional director in the Regional Government;

3. The provisions of paragraph 1 (i) shall not cover the free exercise of duties

lecturers, research activity and other similar as such recognized case a

case by the Regional Legislative Assembly.

Article 35º

Impediments

1. Members lack permission from the Regional Legislative Assembly to

be sworn in, referees, experts or witnesses.

2. The authorisation referred to in the preceding paragraph shall be requested by the judge

competent or by the instructor of the process in a document addressed to the President of

Regional Legislative Assembly and the decision shall be preceded by hearing of the Member.

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3. It is vetted to the Members of the Regional Legislative Assembly:

(a) to exercise the judicial mandate as authors in the actions cable against the State and against

the Region;

b) Serve from experts or arbitrators on paid basis in any proceeding in which

are to be part of the State, the Region and other legal persons of public law;

c) to integrate the administration of public service dealerships;

(d) appear or in any way to participate in acts of commercial advertising.

4. The impediments set out in paragraph (b) of the preceding paragraph shall be able to be met,

on grounds of public interest, by deliberation of the Regional Legislative Assembly. "

It is obvious, that these provisions fall short of the provisions of Law No. 64/93, 26 of

August, in particular with respect to the provisions of Article 8º of this scheme:

" Article 8º

Impediments applicable to societies

1-Companies whose capital is held in a percentage higher than 10% by a

holder of an organ of sovereignty or holder of political office, or by high public office,

are prevented from participating in tenders for the supply of goods or services, in the

exercise of trade or industry activity, in contracts with the state and too much

public legal persons.

2-Stay subject to the same scheme:

a) Companies whose capital, in equal percentage, is a holder of their spouse, not

separate from persons and goods, their ascendants and descendants to any degree and the

collateral to the 2º degree, as well as the one who with him alive in the conditions of the article

2020º of the Civil Code;

(b) Companies in whose capital the holder of the organ or office holds, direct or

indirectly, by you or jointly with the relatives referred to in the preceding paragraph,

a participation not less than 10%. "

In other words, in the Autonomous Region of Madeira is possible an MP

owner of a company participate in and win public tenders and therefore be

simultaneously part of the decision and beneficiary of decision of the public powers.

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The Administrative Political Status of the Autonomous Region of the Azores, approved

by Law 39/80 of August 5, as amended by Law No. 9/87 of March 26 and by the Law No.

61/98, of August 27, is limited to equating the status of Members of the Assembly

Regional Legislative to that of the Members of the Assembly of the Republic, as to the rights,

perks and immunities, to define the duties of Members, as well as loss, renunciation and

suspension of the mandate. In paragraph 1 (a) of Article 28º of this diploma, we find

a reference to incompatibilities as a reason for loss of tenure: " 1-Perdem the

mandate the Deputies that: (a) Come to be injured by some of the incapacity or

incompatibilities provided for in the law ".

This article thus refers to the incompatibilities provided for in the law, although Law n.

64/93, which defines the legal regime of incompatibilities and impediments, do not

directly applicable to Members of the Regional Assemblies otherwise by way of this

extension enshrined in the Statute. There is no doubt left, however, that the understanding

of this application of the law in the Autonomous Region of the Azores is equal to that of the Republic.

Thus, the MPs of the Left Bloc, in the regimental and constitutional terms

applicable, present the following draft law:

Article 1º

Amendments to Law No. 64/93 of August 26

Article 1º of Law No. 64/93 of August 26, as amended by Law No. 39-B/94, of 27 of

December, Law 28/95, of August 18, by Law No. 12/96 of April 18, by Law No.

42/96, of August 31 and Law No. 12/98 of February 24, go on to have the following

wording:

" Article 1º

(...)

1-(...)

2-(...):

a) the Representatives of the Republic in the Autonomous Regions;

(b) Members of the Regional Assemblies;

c) Previous point (b);

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d) Previous point (c);

e) (...);

f) (...);

g) (...). "

Article 2º

(Entry into force)

This diploma shall come into force on the day following that of its publication.

Assembly of the Republic, April 26, 2006

The deputies and the Deputies of the Left Bloc