Translated from Portuguese. The Portuguese version prevails. Ler em português
In her address during the working session of the 6th Conference of Constitutional Jurisdictions of Portuguese-Speaking Countries, hosted by Mozambique from 15 to 16 July 2024, the President of the Constitutional Court, Justice Laurinda Prazeres Cardoso, reflected with those present “on the place occupied by constitutional jurisdictions in the constitutional state, as well as on the relationship that they have or should have with the other powers of the State”.
The address by the President of the Constitutional Court in full.
Ladies and gentlemen,
It is with great honour and enthusiasm that I take part in this 6th Assembly of the Conference of Constitutional Jurisdictions of Portuguese-Speaking Countries, under the motto “Constitutional jurisdiction and other powers”, in which we are all invited to reflect on the place occupied by constitutional jurisdictions in the constitutional state, as well as on the relationship that they have or should have with the other powers of the State.
The general theme to be addressed is extremely pertinent, as well as more complex than it appears. This is because it constitutes a constant challenge for any country that seeks to assert itself as a democratic State governed by the rule of law, concerning not only the existence of a real separation between the sovereign powers – with the necessary relationship of interdependence between the different powers of the state – but also the practical and effective guarantee of harmonious coexistence between the judicial power and the other powers, and, further, an equally harmonious and functional coexistence between constitutional jurisdiction and other higher courts, whether ordinary or special, within the framework of the architecture of the system.
In this connection, it is worth recalling the teachings of JJ. GOMES CANOTILHO, who asserts that the “separation” of the judicial power or, in constitutional terms, of the sovereign body “Courts”, performs two functions: (i) guaranteeing freedom, since there is no freedom where there is concentration or confusion between those who make the laws, those who apply them and those who judge; (ii) guaranteeing the independence of the judiciary, “since only independent judges can ensure justice in freedom”.
Consequently, the independence of the Courts and of Judges can only be considered within the organisational structure of a State in which the principle of separation of powers is enshrined. In other words, the independence of the Courts and of judges is a necessary consequence of the principle of separation of powers, given that we can only speak of interrelationships, reciprocal limitations and interference in relation to other powers if the space of each has been determined beforehand.
However, in discussing the relationship between constitutional jurisdiction and the other powers, we start from the premise that within the judicial power the relationship is always peaceful. Yet such an assertion is far from reality in many legal orders, and ours is no exception.
Among the various topics proposed under the central motto, I decided to speak about the “effectiveness/enforcement of the decisions of the Constitutional Court by the other powers”.
One of the major problems facing constitutional jurisdiction in Angola is the enforcement, by the Courts of Ordinary Jurisdiction, of decisions handed down in the Extraordinary Appeal on Grounds of Unconstitutionality.
Dear Colleagues,
Ladies and Gentlemen,
For a better understanding of the issue and of the apparent conflicts, allow me to give here a brief retrospective of constitutional jurisdiction in Angola.
Between 1991 and 1992, following the signing of the “Bicesse Accords”, which were aimed at ending the Civil War in Angola, there was a major break with the regime then in force. The Country adopted democracy as the principle of political organisation and of the structuring and functioning of the State, having moved from a single-party system to a multi-party system. To that end, a new Constitutional Law was approved, which already expressly enshrined an extensive catalogue of fundamental rights, as well as, among other principles, the principle of separation of powers.
It was with the 1991/92 Constitutional Law that the Constitutional Court came to be enshrined in the Lex Mater. However, its actual institutionalisation was postponed for a decade and a half, and until then its powers were exercised by the Supreme Court (the highest body of Ordinary Jurisdiction), a merely transitional status provided for by that Constitutional Law thus remaining in place for a long period.
The Supreme Court exercised constitutional powers, including hearing on appeal the decisions of the other courts that applied, or refused to apply, norms whose constitutionality had been challenged.
The aforementioned appeal did not have its own technical legal name until 2008, when the Constitutional Court was institutionalised with the approval and publication of Laws No. 02/08 and No. 03/08, both of 17 June – the Organic Law of the Constitutional Court and the Organic Law on Constitutional Procedure, respectively.
With the approval of these two important instruments, the Constitutional Court, in matters of appeal, began to hear two types: the Ordinary Appeal on Grounds of Unconstitutionality (ROI) and the Extraordinary Appeal on Grounds of Unconstitutionality (REI), which are legal mechanisms for the concrete review of constitutionality.
Without overlooking the various metamorphoses that have marked Angolan constitutional history, the evolutionary “great leap” of our constitutionalism came with the approval of the Constitution of the Republic of Angola, that is, in 2010.
The 2010 Constitution of the Republic of Angola (CRA) strengthened the foundations of the Angolan State, anchored in the principles of the democratic State governed by the rule of law, in respect for the dignity of the human person and in the will of the people, with the fundamental objective of building a free, just, democratic and solidarity-based society of peace, equality and social progress.
It also strengthened the guarantees and delimited the powers of the bodies that make up the Angolan judicial System, with emphasis on the Constitutional Court (see Article 181 of the CRA), which had meanwhile been institutionalised two years earlier, that is, in 2008, through Law No. 02/08 of 17 June – Organic Law of the Constitutional Court (LOTC).
As regards the Constitutional Court, as the body with competence to administer justice in matters of a legal and constitutional nature, under Article 6 of its Organic Law, “its decisions are binding on all public or private entities and prevail over those of the other courts and of any authorities, including the Supreme Court”.
However, the Constitutional Court is not an omnipresent supervisor of respect for fundamental rights by the other bodies of the State and by society, since its reactive nature does not allow it to act on its own initiative, not even when the judges who make it up view some phenomenon of constitutional life with concern; an external impetus is always required, that is, a petition or an appeal on grounds of unconstitutionality, notwithstanding the need for adjudication.
That notwithstanding, we may also conclude that the Angolan constitutional system is characterised by strong constitutional jurisdiction. This is because the Constitutional Court, by possessing this mandatory binding force of its decisions, asserts the sovereignty of the exercise of its authority in its functions of constitutional review and of protection of the fundamental rights of citizens.
Indeed, as regards the effectiveness and enforcement of decisions in abstract prior and subsequent review proceedings and in proceedings for unconstitutionality by omission, the CRA is peremptory, raising it to a declaration of constitutionality of an enforceable nature (Article 231): a declaration of unconstitutionality has generally binding force and produces effects from the entry into force of the norm declared unconstitutional, and it entails the revival of the repealed norm.
By way of example, as regards the relevance and prevalence of the decisions of the Constitutional Court in relation to the other Powers, namely the Legislative, Executive and Judicial Powers, the following can be ascertained from an analysis of our body of case law:
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With regard to the National Assembly (Legislative Power), we may highlight, among several judgments, Judgment No. 111/2010 of 21 January, delivered in prior review of the Constitution, in which the Constitutional Court, in reviewing the 2010 Draft Constitution Law, which originated in and was approved by Parliament, found that the manner of election of the Vice-President of the Republic conflicted with the material limits on constitutional revision enshrined in the 1992 Constitutional Law. Parliament, in turn, in compliance with the constitutional and legal framework in force, amended the manner of election of the Vice-President of the Republic and brought it into line with the decision of the Constitutional Court.
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Judgment No. 688/2021 of 9 August, likewise in abstract prior review proceedings concerning the Draft Constitutional Revision Law, in which the Constitutional Court held unconstitutional the provision requiring the annual submission of the report on its activities to the President of the Republic and the National Assembly for their information, since it violated the principle of separation of powers. When the Draft was returned to the National Assembly, the latter removed that provision, bringing the Draft into line with the decision of the Constitutional Court.
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To these judgments may be added, among others, Judgment No. 881/2024 of 2 April, on the constitutionality of Article 284(3) of the Law on the Rules of Procedure of the Assembly; and also Judgment No. 608/2020 of 15 April, on a parliamentary dispute.
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With regard to the Executive Power, Judgment No. 845/2023 of 3 October stands out, delivered in abstract subsequent review proceedings brought by the Angolan Bar Association concerning the unconstitutionality of Presidential Decree No. 69/21 of 16 March. The Constitutional Court declared, with generally binding force, the organic and formal unconstitutionality of the norms contained in the Presidential Decree establishing the Regime for the share allocated to the bodies of the administration of justice of the financial and non-financial assets recovered by them (10%) through their decisions, since those norms conflicted with the guarantees of independence and impartiality of the courts. With the publication of the Constitutional Court's decision in the Official Gazette (Diário da República), the Presidential Decree ceased to have effect, thus complying with the decision of that Court.
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With regard to the Attorney General's Office, Judgment No. 796/2023 of 24 January stands out, delivered in abstract subsequent review proceedings brought by the Attorney General's Office concerning the
unconstitutionality of Article 6 and Article 31(1) of the Basic Law on the Organisation and Functioning of the National Police. The Constitutional Court decided not to declare the provisions invoked unconstitutional.
That said, Ladies and Gentlemen,
In the context of concrete review, it should be recalled, our constitutional jurisdiction has two mechanisms for guaranteeing the rights and freedoms of individuals. The Ordinary Appeal on Grounds of Unconstitutionality – ROI (guaranteeing the norm) and the Extraordinary Appeal on Grounds of Unconstitutionality – REI (guaranteeing against the acts) of State bodies (with characteristic features of the Mexican amparo appeal and the German constitutional complaint).
With regard to the decisions of the Courts of Ordinary Jurisdiction, the great majority of the decisions handed down by the Constitutional Court result from concrete review proceedings, that is, the Extraordinary Appeal on Grounds of Unconstitutionality (REI), after the chain of appeals in the ordinary jurisdiction has been exhausted. Ironically, it is precisely in relation to judicial bodies, and in particular the supreme ordinary jurisdiction, that the decisions of the Constitutional Court encounter the greatest constraints (resistance) in terms of enforcement.
By way of example, there are dozens of decisions of the Constitutional Court that the other courts (notably the Supreme Court) have difficulty enforcing: Judgments Nos. 778/2022, 780/2022, 782/2022, 785/2022, 792/2022, 794/2022, 829/2023, 832/2023, 832/2023, 842/2023 and 851/2023, all available at www.tribunalconstitucional.ao.
Accordingly, it is important to reiterate that the protection of fundamental rights and the guarantee of the principle of the supremacy of the Constitution in the Angolan legal system is a function of all courts under Article 177 of the CRA (within the framework of the so-called diffuse review of constitutionality).
However, while judicial protection in the field of fundamental rights and the values of the Constitution is also a function of the courts of ordinary jurisdiction, where there are doubts, conflicts of interpretation and/or incorrect application, in such cases the Constitutional Jurisdiction, whenever called upon, exercises its adjudicative function, with the possibility of correcting such situations by means of constitutional appeals and petitions for review of constitutionality, and it must have the substantive decision-making primacy conferred on it by the CRA.
To conclude, I reiterate that the Constitutional Court, in several of its judgments, makes it clear that it is neither a court of legal nor of factual “super-review”, but that it also cannot entirely abstain from reviewing such judgments and ignore the fact that the rules may have been disregarded, since it is not for it to determine whether the decisions are correct under ordinary law (as the Constitutional Court does not examine matters of fact). The Court merely reviews whether the court judgment violates a specific constitutional principle or right.
By way of example: the Constitutional Court would not examine the merits of the arguments of the parties involved, but would only examine whether the subject matter of a seizure ordered by a court of ordinary jurisdiction was interpreted in a way that exceeds the limits established by the Constitution; in particular, where such interpretation is incompatible with the meaning and scope of the fundamental rights, guarantees and freedoms enshrined in the Constitution, it being for the Court to decide on that matter as the court of last instance (Article 6 of the LOTC), as mentioned above. The court of ordinary jurisdiction (irrespective of its hierarchical level) must then formally and substantively take into account the decision of the Constitutional Court, removing the unconstitutionality found.
In conclusion, it must be said that the functional vitality of a State governed by the rule of law is observable to the naked eye not when powers are exercised expansively in a competitive manner, but when they (justly and constitutionally) limit themselves, so as to conform existentially in an acknowledgement of reciprocal interdependence.
THANK YOU VERY MUCH