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Portugal / Constitutional Court / 578/2014

Pre-emptive ruling concerning a provision in a Regional legislative Decree

Policy area:
Education, training, youth, sport
Deciding Body type:
National Court/Tribunal
Deciding Body:
Portugal / Constitutional Court
Decision date:

Key facts of the case:

The Representative of the Portuguese Republic for the Autonomous Region of Madeira (ARM) petitioned the Constitutional Court for pre-emptive declaration as to the unconstitutional organic and material nature of an article in a regional legislative decree that sought to make it compulsory for school children to attend a subject teaching moral and religious education except in cases where the person responsible for the child’s education expressly gives permission to the contrary. On the one hand, the petitioner’s argument was based on the fact that the Regional Government’s intention to pass laws on matters to do with rights, freedoms and guarantees, infringed upon the right of the Assembly of the Republic (Parliament) to legislate on this matter (Articles 165 (1) b) in the Portuguese Constitution) ; on the other hand, it was also based on the fact that the contents of the article breached Constitution Articles 41 (Freedom of conscience, religion and worship) and 43 (Freedom to learn and teach) when both are read in conformity with the provision in Article 26 (3) of the Universal Declaration of Human Rights (UDHR). In the opinion of the petitioner, where the rule is concerned, the same reasons explaining the unconstitutional nature of another similar rule which the Constitutional Court had already analysed are applicable here with general mandatory force. The Court stated that “a rule that demands those who have no wish to receive [Roman] Catholic religious and moral education should expressly decline it [which] therefore gives rise to the same problems as a rule that demands those who have no wish to receive any kind of religious and moral education should expressly decline it”.