Cape Verde 1980 Constitution (reviewed 1992)

PART V. GUARANTEES OF DEFENSE AND REVISION OF THE CONSTITUTION

TITLE I. MARTIAL LAW AND STATES OF EMERGENCY

Article 293. Martial Law

Martial law may only be declared, in all or part of the national territory, in the event of imminent or effective aggression on the national territory by foreign forces or grave threat or disturbance to the constitutional order.

Article 294. State of Emergency

A state of emergency shall be declared, in all or part of the national territory, in the event of public calamity or disturbance to the constitutional order, the gravity of which does not justify martial law.

Article 295. Establishment and Duration

1. Declarations of martial law or states of emergency must be substantiated and must indicate the territorial area; the results; the rights, liberties and guarantees which are suspended and their duration, which may not be greater than thirty days and which may be extended for an equal period with the same substantiation.
2. In the event of war or the declaration of martial law, the law may establish a period longer than indicated in the preceding paragraph; in this case, the duration of martial law must be strictly necessary for the prompt reestablishment of democratic normality.

Article 296. Prohibition of Dissolution of the National Assembly

1. While martial law or the state of emergency is in effect, the National Assembly may not be dissolved and shall be automatically convened if it is not in session.
2. If the National Assembly had been dissolved, or if the legislative session had ended on the date of the declaration of martial law or a state of emergency, its responsibilities shall be assumed by the Permanent Commission.

Article 297. Subsistence of Certain Fundamental Rights

A declaration of martial law or a state of emergency shall, in no case, affect rights to life, physical integrity, personal identity, civil status, and citizenship, the non-retroactivity of criminal law, the right of the accused to defense, freedom of conscience and religion.

Article 298. Authority of National Bodies

A declaration of martial law or a state of emergency shall not affect constitutional rules regarding the responsibility and functioning of national bodies, nor the rights and immunities of the respective officials; nor may it alter the principles of responsibility of the State or its agents recognized in the Constitution.

Article 299. Prolongation of Offices of Elected Officials and Prohibition Against Holding Elections

1. After the declaration of martial law or a state of emergency, the terms of elective officials which would have ended while the declaration is in effect shall be extended automatically.
2. After the declaration of a state of emergency restricted to one part of the national territory, the provision of the preceding paragraph shall be applied to elected bodies in that area.
3. During martial law or a state of emergency, and for thirty days after it has ended, no legislation may take effect.

TITLE II. VERIFICATION OF CONSTITUTIONALITY

Article 300. Dealing with Unconstitutionality

1. Laws and resolutions of general or specific content shall be unconstitutional if they contravene any provision of the Constitution or the principles contained in it.
2. Organic or formal unconstitutionality of International Treaties or Agreements which deal with responsibilities reserved for the National Assembly or the Government shall not prevent the application of its provisions in the Cape Verdian judicial order, if they are confirmed by the Government and approved by two-thirds of the deputies present in the National Assembly at the first plenary session after the date of publication of the decision of the Court.
3. After the deficiency is corrected which had caused the failure of ratification of the International Treaty or Agreement, the President of the Republic may authorize ratification.

Article 301. Review for Constitutionality

1. The President of the Republic may request prior review by the Supreme Court of Justice of any provision of an International Treaty or Agreement which is submitted to him for ratification.
2. Prior review must be requested within eight days from the date on which the President of the Republic receives it.
3. The Supreme Court of Justice must rule within a period of ten days.

Article 302. Effects of A Decision

1. If the Supreme Court of Justice rules that the provision of the International Treaty or Agreement is unconstitutional, it may not be ratified by the President of the Republic; he must return it to the body which had approved it.
2. The International Treaty or Agreement which contains the provision declared unconstitutional may be ratified by the President of the Republic if the National Assembly, after consultation with the Government, confirms it by a two-thirds majority of the Deputies present, provided that is greater than a majority of the Deputies currently in office.
3. If the Supreme Court of Justice rules that the International Treaty or Agreement is organically unconstitutional, the National Assembly may approve it under the provisions of Article 300 (2).

Article 303. Abstract Review of Constitutionality

The Supreme Court of Justice, at the request of the President of the Republic, the President of the National Assembly, the Prime Minister, the Attorney General of the Republic, and not less than one-fourth of the Deputies in the National Assembly, may review and rule upon:

1. The unconstitutionality of any laws or resolutions of general or specific content;
2. The illegality of resolutions referred to in (a).

Article 304. Concrete Review of Constitutionality

1. The Supreme Court of Justice shall hear appeals of court decisions which:
   1. Reject, on grounds of unconstitutionality, the application of any law or resolution of general or specific content;
   2. Apply laws or resolutions of general or specific content where unconstitutionality has been claimed in the trial;
   3. Apply laws or resolutions of general or specific content which have been previously judged unconstitutional by the Supreme Court of Justice.
2. The Supreme Court of Justice shall also hear appeals of decisions which:
   1. Apply resolutions of general or specific content which have been previously judged illegal by the Supreme Court of Justice or where illegality has been claimed in the trial;
   2. Reject, on grounds of illegality, the application of any resolutions referred to in the preceding paragraph.

Article 305. Establishing Constitutional Legality Through Appeal

1. Appeal may be made to the Supreme Court of Justice by the Public Prosecutor’s Office and persons who, in accordance with the law concerning verification of constitutionality, are entitled to appeal.
2. Appeal referred to in the preceding Article may only be brought after exhaustion of the process established by law in which the decision was made and shall be restricted to the question of unconstitutionality or illegality, according to the case.
3. Appeal of decisions provided for in (1)(c) and the first part of (2)(a) of the preceding article shall be compulsory for the Public Prosecutor’s Office.

Article 306. Forms of Decisions of the Constitutional Court

1. In the cases provided for in Article 302, the ruling of the Supreme Court of Justice shall take the form of an Opinion.
2. In the other cases, decisions of the Supreme Court of Justice shall take the form of a Ruling.
3. Decisions of the Supreme Court of Justice which deal with constitutionality or illegality shall be published in their entirety in the Official Journal.

Article 307. Effects of Rulings and Opinions

1. Rulings of the Supreme Court of Justice which deal with constitutionality or illegality, whatever the process by which they are issued, shall have general legal force.
2. Opinions shall have the effects established in Article 302.

Article 308. Effects of a Declaration of Unconstitutionality

1. A declaration of unconstitutionality or illegality with general legal force shall take effect from the effective date of the law which has been judged unconstitutional or illegal and the removal of the laws which have been revoked.
2. In dealing with unconstitutionality or illegality for a subsequent infraction of the constitution or a law, the declaration shall take effect as soon as it is in force.
3. A declaration of unconstitutionality of any international convention shall take effect from the date of publication.
4. In the cases referred to in (1) and (2), when security, equity, or exceptional public interest, duly substantiated, require it, the Supreme Court of Justice may set more limited effects than those provided for in (2) and (3).
5. Cases shall be exempt from the effects of the declaration of unconstitutionality or illegality, except where the Supreme Court of Justice decides to the contrary, when the law concerns criminal or disciplinary matters and is more favorable to the defendant.

TITLE III. REVISION OF THE CONSTITUTION

Article 309. Jurisdiction, Timing and Initiative of Constitutional Revision

1. This Constitution may be revised, in whole or in part, by the National Assembly after five years from the date of its promulgation.
2. The National Assembly may, however, at any time, assume the power to revise the Constitution by four-fifths of the Deputies currently in office.
3. Initiative for revision of the Constitution shall be vested with the Deputies.

Article 310. Bills for Constitutional Revision

1. Bills for Constitutional revision must indicate the Articles to be revised and the direction of the changes to be introduced.
2. Bills for Constitutional revision must be signed by not less than one-third of the Deputies currently in office.
3. Upon the introduction of any bill for Constitutional revision, all others must be introduced within a maximum period of sixty days.

Article 311. Approval of Revisions

1. Each of the changes to the Constitution must be approved by two-thirds of the Deputies currently in office.
2. The changes approved must be assembled in a single law of revision.

Article 312. New Constitutional Text

1. Changes to the Constitution must be inserted at the proper place by means of the necessary substitutions, deletions, and additions.
2. The new text of the Constitution shall be published at the same time as the law of revision.

Article 313. Material Limits to Revision

1. The following may not be subject to revision:
   1. National independence, the integrity of the national territory, and the unity of the State;
   2. The republican form of government;
   3. Universal, direct, secret, periodic suffrage for the election of national and local officeholders.
   4. The separation and interdependence of national bodies;
   5. The autonomy of local power;
   6. The independence of the Courts;
   7. Pluralism of expression and political organization, and the right of opposition;
2. Laws of revision may not restrict or limit the rights, liberties, and guarantees established in the Constitution.

Article 314. Promulgation

The President of the Republic may not refuse to promulgate laws of revision.

Article 315. Prohibition Against Revision

In wartime and during martial law or a state of emergency, no law revising the Constitution may be passed.