Changes The Legal Regime Of Incompatibilities And Impediments Of Holders Of Political Office And High Public Office.

Original Language Title: Altera o regime jurídico de incompatibilidades e impedimentos dos titulares de cargos políticos e altos cargos públicos.

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334271624449314e4331594c6d527659773d3d&fich=pjl254-X.doc&Inline=false

1 Group BILL No. 254/X changes the law No. 64/93, of 26 August (establishes the legal REGIME of INCOMPATIBILITIES and impediments of HOLDERS of POLITICAL OFFICE and HIGH PUBLIC OFFICE) the explanatory memorandum to the law No. 64/93, of 26 August, as amended successively by law No 39-B/94, of December 27, by law 28/95 , of 18 August, by law No. 12/96, of 18 April, by law No 42/96 of 31 August and by law No. 12/98, of 24 February, established the legal regime of incompatibilities and impediments of holders of organs of sovereignty and of political office and high public office holders. Irrespective of the assessment of the effectiveness of the legal system created in this set of legislation, not the initial diploma or the successive amendments decided a question asked from the beginning – not consider members of the regional assemblies of the Azores and Madeira as holders of political office for the purposes of this legal regime. Article 1 of the Legal Regime of Incompatibilities and impediments of holders of political office and High public office covers only the Ministers of the Republic to 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 Mayor and the aldermen of full-time municipal councils and members of the European Parliament. 2 Being self-evident that must be disposed of this enumeration the Governor and the Deputy Secretaries of Macau, fundamentally questioning why the non-inclusion of representatives of the regional assemblies of the Azores and Madeira, and if it makes any sense or if, on the other hand, creates a zone of political power which is not covered by the general regime concerning incompatibilities and impediments. Obviously, the explanation of that non-inclusion is not the regional autonomy that would allow own statutes and eventually, as the members of each Regional Government are covered by the Act and never was raised – or could be-the unconstitutionality of this standard. The Constitution of the Portuguese Republic considers how government bodies of the autonomous regions the regional assemblies and Regional Governments by assigning the first legislative powers and to be able to writing total executives seconds dependence of regional assemblies. So, if the Legal Regime of Incompatibilities and impediments of holders of political office and High public Office considers, and well, as holders of political office the members of the regional Governments, by a majority of reasons should also consider members at Regional Meetings, submitting them to the regime. To not include this political office among those listed, the Legal Regime of Incompatibilities and impediments of holders of political office and High public office, intended to be general and created a national area, which leads, in particular, that these political office holders – members of regional assemblies, are not covered, among other by impediments laid down by article 8 of the said decree-law. There is therefore no serious argument that can be kept outside the scope of the Legal Regime of Incompatibilities and impediments of holders of political office and High public office, these holders of political office. Even if you argue that the Political-Administrative Statutes of autonomous regions solve this issue, because in addition to the discussion of whether the could do, in the case of the Political and administrative Status of the autonomous region of the Azores is not addressed the question of the incompatibilities and impediments of representatives though the practice has always guaranteed policy consistent with the law, and in the political-administrative Status of the autonomous region of Madeira , the incompatibilities and impediments 3 provided fall short of the stipulated by the regime intended to be general and the political practice is openly and violently contradictory with the defined by the law. The Constitution defines, in number 2 of your article 117, that "the law provides for the duties, responsibilities and incompatibilities of holders of political office, the consequences of their failure, as well as about their rights, perks and immunities". 7 article number 231º, is determined that "the status of holders of the Government organs of the autonomous regions is defined in the statutes of the administrative-political", and although the Parliament approve these statutes as well as the electoral laws applicable in the autonomous regions (rule 161). There is therefore no doubt that there are only two ways to achieve legislative uniformity of incompatibilities and impediments in all the Republic: or on its own initiative of the regional assemblies for the conformation of your political-administrative status with the law, through change that to submit to the Assembly of the Republic, or, in your absence, for the initiative of the Assembly of the Republic to determine the application throughout the territory of the same law on incompatibilities and impediments. In the case of the autonomous region of Madeira, this duplicate becomes necessary given there is a regime of exception that is contradictory with the national understanding – and certainly shared by the majority of the population of the autonomous regions – of which must be the transparency and accountability of the exercise of elective public office. However, the regional autonomy does not require or justify any exception for regional members may be beneficiaries of contracts granted by the Regional Government, through companies that are owners.

In fact the Political and administrative Status of the autonomous region of Madeira, approved by law 13/91, 5 June, amended by Law 130/99, 21 August and by law 12/2000, June 21, on the matter of incompatibilities and impediments, determines: "article 34 Disqualifications


1. Is incompatible with the exercise of the mandate of Member of the Regional Legislative Assembly the following positions: performance) President of the Republic, Member of the Government and Minister of the Republic; 4 b) member of the Constitutional Court, the Supreme Court of Auditors and the Supreme Judicial Council and Ombudsman; c) member of the European Parliament; d) Deputy to the Assembly of the Republic; and Member of other organs) Government of the autonomous regions; f) Ambassador from the diplomatic career; g) Governor and Lieutenant Governor; h) Chairman and alderman of full-time municipal councils; I) employee of the State, the region or of other legal persons governed by public law; j) member of the National Commission of elections; l) member of the ministerial offices or legally assimilated; m) international organization or employee of a foreign State; n) President and Vice President of the economic and Social Council; the) member of the high authority for the media; p) member of the Board of Directors of public enterprises; q) member of the Board of Directors of the public capital companies mostly reported by State or by region; r) member of the Board of Directors of autonomous public institutions; 2. Is still incompatible with the function of Deputy: a) the performance of functions provided for in paragraph 2 of article 28; b) the exercise of the Office of the Regional Government delegate in Porto Santo; c) the Office of the regional director on Regional Government; 3. The provisions of paragraph i) of paragraph 1 does not apply to the free exercise of teaching functions of research activity and other recognised as such on a case by case basis by the Regional Legislative Assembly.

Article 35 1 Impediments. Members require authorization of the Regional Legislative Assembly to be jurors, arbitrators, experts or witnesses. 2. the authorisation referred to in the preceding paragraph shall be requested by the competent judge or by the instructor of the process in a document addressed to the President of the Regional Legislative Assembly and the decision will be preceded by a hearing of Mr. 5 3. It is forbidden to members of Regional Legislative Assembly: the judicial mandate) exercising as authors in the civil actions against the State and against the region; b) serve as experts or arbitrators under paid in any process in which are part of the State, the region and other legal persons governed by public law; c) Integrate the management of utilities companies; d) Appear or otherwise participate in acts of commercial advertising. 4. The impediments listed in subparagraph (b)) of the preceding paragraph may be met, on the grounds of public interest, by resolution of the Regional Legislative Assembly. "

It is obvious, that these provisions fall short of the provisions of the law No. 64/93, of 26 August, in particular as regards the provisions of article 8 of this scheme: "article 8 applicable Impediments to companies 1-companies whose capital is held by a percentage greater than 10% for a holder of sovereign body or holder of public office, or for high public office , are prevented from participating in tenders for the supply of goods or services, in the course of trade or industry activity, in contracts with the State and other public authorities. 2-shall be subject to the same regime: a) companies whose capital, in equal proportion, holds the your spouse, not separate terms, their ascendants and descendants in any degree and collateral to the second degree, as well as that living with him under the conditions laid down in article 2020º of the Civil Code; b) companies in whose capital the holder of or position holds, directly or indirectly, by himself or together with family members referred to in the preceding paragraph, a contribution of not less than 10%. "

In other words, in the autonomous region of Madeira it is possible a member owner of a company participate and win tenders and thus be simultaneously part of the decision and the beneficiary of a Government decision. 6 regarding the political status of the autonomous region of the Azores, approved by law 39/80, of 5 August, as amended by law No. 9/87, of 26 March, and by law No. 61/98, of 27 August, limited to equate the status of the members of the Regional Legislative Assembly of deputies of the Assembly of the Republic, the rights, immunities and advantages , define the duties of members, as well as the loss, resignation and suspension of the mandate. In subparagraph (a)) of paragraph 1 of article 28 of this law, we find a reference to incompatibilities as reason of loss of mandate: "1-Lose the mandate the Members that: (a) may be injured by any of the disabilities or incompatibilities provided for in law." This article refers as well to the incompatibilities provided for in law, although the law No. 64/93, which establishes the legal regime of incompatibilities and impediments, is not directly applicable to members of the regional assemblies by via this extension enshrined in Statute. There is however no doubt 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 members of the Left block, in accordance with the rules and applicable constitutional, will present the following draft law: article 1 amendments to law No. 64/93, of 26 August article 1 of law No. 64/93, of 26 August, as amended by law No. 39-B/94, of December 27, 28/95, Law of August 18 , by law No. 12/96, of 18 April, by law No 42/96 of 31 August and law No. 12/98, of 24 February, are replaced by the following: "article 1 (...)

1-(...) 2-(...): a) the representatives of the Republic in the autonomous regions; b) members of regional assemblies; c) preceding subparagraph (b)); 7 d) preceding subparagraph (c)); e) (…); f) (…); g) (…).”

Article 2 (entry into force) the present law shall enter into force on the day following your publication.

Assembly of the Republic, April 26 2006 The members and members of left-wing Block