The controversy over the Chega (ultra-right political force in the Azores) draft resolution, which aims to change the conditions for access to crèches (daycare centers) and which was approved by the Regional Assembly with the votes of the coalition parties and the abstention of IL, is causing “a lot of perplexity” in the national media, with some constitutionalists intervening.
According to the approved bill, children of unemployed parents will be disadvantaged compared to those whose parents work when entering nursery schools.
“It can be considered discrimination depending on whether people work or don’t want to work. People may not want to work,” constitutionalist Bacelar Gouveia told Renascença.
“People are not obliged to work, this is an intrusion into private life. You can be rich, you can be in the café all day, why shouldn’t your child go to nursery like everyone else?” he asks.
Bacelar Gouveia believes that this situation does not seem legitimate from a formal point of view.
“It’s an inequality based on a criterion that isn’t relevant,” he adds.
Diário dos Açores heard from constitutional law expert Arnaldo Ourique, a regular contributor to this newspaper, who said that he was not familiar with the text of the resolution, but “in general terms, the answer to this question (whether it is legal) is negative. Because the principles of universality and equality prevent it. However, the Constitution provides for equal equality and inequality for unequal situations. In other words, it is possible to discriminate positively according to an adequate and proportional need. There are many examples of laws that allow for such deviations: a lady with her child on her lap has the right to preferential treatment; a family with a lower income pays less tax, or pays less for their child in a daycare center.”
Arnaldo Ourique also told our newspaper that the parties can request that the rule be declared unconstitutional, “but they don’t have to. Let’s see: if this measure is approved through a parliamentary resolution, this type of act is not signed by the Representative of the Republic, so there is no preventive control. The MPs will be able to raise its unconstitutionality with the Constitutional Court because this type of resolution is normative (the Constitutional Court only works if someone calls on it to act, the principle of request; and it only analyzes legal norms, not administrative acts). Citizens and MPs can also call on the Ombudsman to make such a request. If it is approved by a parliamentary decree or a government decree, the Representative of the Republic can now intervene. In any case, the MPs don’t need to summon either the Representative of the Republic or the Constitutional Court: as the government doesn’t have a parliamentary majority, the MPs can fail to approve either the resolution or the parliamentary decree, if that’s the case.”
For Arnaldo Ourique, “the President of the Legislative Assembly himself can, from the outset, interpret that the initiative is unconstitutional if that is his understanding; and, in that case, the resolution is not even accepted for discussion.”

in Diário dos Açores-Osvaldo Cabral, director

Translated to English as a community outreach program from the Portuguese Beyond Borders Institute (PBBI) and the Modern and Classical Languages and Literatures Department (MCLL) as part of Bruma Publication and ADMA (Azores-Diaspora Media Alliance) at California State University, Fresno, PBBI thanks Luso Financial for sponsoring NOVIDADES.