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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.
Data as of January 1993
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