Translated from Portuguese. The Portuguese version prevails. Ler em português
“Effects of a Declaration that International Instruments Do Not Conform to the Constitution of the Republic of Angola”
Introduction
Notwithstanding the existence of a diffuse system of review of unconstitutionality in our legal order, under the Constitution of the Republic of Angola (CRA) the body with competence to rule on a possible conflict between an international norm and the Constitution is the Constitutional Court.
Article 228 of the CRA provides that the President of the Republic may request the Constitutional Court to carry out a prior review of the constitutionality of any norm contained in a legislative instrument submitted for promulgation, in an international treaty submitted to him for ratification or in an international agreement submitted to him for signature, since it is incumbent upon the President of the Republic, under subparagraph (c) of Article 121 of the CRA, to sign and ratify, as the case may be, once approved, treaties, conventions, agreements and other international instruments.
The same is also laid down in the International Treaties Law (Law No. 4/11 of 14 January), which establishes the President of the Republic as the entity competent to promulgate International Treaties following their approval by the National Assembly.
It should be noted, however, that as far as international norms are concerned, there is only prior review of constitutionality since, by virtue of the system in force for the reception of international norms, the norms of international law can only be incorporated into the Angolan legal order through a domestic legislative act, in accordance with the provisions of the Constitution. Indeed, the Constitution enshrines, in Article 13, the integration of the norms of international conventions ratified by Angola as norms of domestic law.
In prior review proceedings, the decisions of the Constitutional Court may take two forms: a pronouncement of unconstitutionality or a non-pronouncement of unconstitutionality, it never being for the Court to decide on the constitutionality (in a positive sense) of the norms submitted to it for review.
It falls within its decision-making powers “to consider that a given future norm reviewed by it is or is not in conformity with its parameter of validity, which is the fundamental law, but it is absolutely excluded that it should be for the Court to affirm, definitively, that such norm is, ‘urbi et orbi’, compatible with it, thereby allowing for a possible re-examination of the same matter in subsequent abstract or concrete review” (CORREIA, José de Matos: Introdução ao Direito Processual Constitucional, Universidade Lusíada Editora, Lisbon: 2011, p. 102).
That said, we shall confine ourselves to the effects of the declaration of unconstitutionality of international norms resulting from prior review proceedings.
Pronouncement of Unconstitutionality
The effects of a declaration of unconstitutionality are those determined by Article 229 of the CRA, which are likewise set out in Article 25 of Law No. 3/08 of 17 June, the Constitutional Procedure Law (LPC).
If the Constitutional Court finds that the fundamental law has been violated and, as a logical consequence, pronounces in favour of unconstitutionality, the automatic and immediate effect is that signature or ratification becomes impossible, and the text must consequently be returned to the body from which it originated (Article 229(2) of the CRA).
Accordingly, in the face of a declaration of unconstitutionality, the treaty/pact in question must be vetoed by the President of the Republic who, under subparagraph (c) of Article 121 of the CRA, is the entity competent to promulgate, sign or ratify it, as the case may be, once approved. It should be noted that approval is, as a rule, a matter for the National Assembly, by virtue of subparagraph (k) of Article 161 of the CRA and Article 11(2) of Law No. 4/11 of 14 January, the Law on International Treaties.
A pronouncement of unconstitutionality thus makes mandatory a specific form of veto, which legal doctrine has termed a legal veto (since it is determined by reasons of legal non-conformity rather than of political assessment) or a veto on grounds of unconstitutionality (since it is the occurrence of this defect that underlies it).
Furthermore, this is a veto of a mandatory nature, since in such circumstances the President of the Republic is bound to act in this way. This is confirmed, moreover, by the fundamental law, which in Article 229(2) refers in very clear terms to the existence of a genuine legal duty, as the use made there of the word “must” cannot be understood in any other way.
In this regard, it is also important to stress that we are not dealing here with a mere return of the tainted instrument to the body from which it originated.