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To the Speaker of Parliament

Excellency,

Upon receiving for enactment as law Parliamentary Decree No. 133/X, containing the first alteration to Law No. 1/99, dated January 13, which approved the Journalist’s Charter, I decided, in accordance with item b) of article No. 136 of the Constitution of the Portuguese Republic, not to enact that document, based on the following reasons: 

1 – In the framework of an open and plural society, legislation in respect of journalistic activity is considered as essential for the quality of democracy. It is not by chance that experts on constitutionality stress that one the fundamental bases safeguarding the freedom of the press, guaranteed by the provisions of article No. 46 of the Constitution, is, precisely «the relevance of the charter of its operators, the journalists» (as in Notes on the Constitution of the Portuguese Republic, Vol. I, Coimbra, 2005, page 434, by Jorge Miranda and Rui Medeiros).

2 – As is well know, the legislation for which enactment was requested was the subject of much controversy, be it among the parties represented in Parliament, among journalists and the institutions representing them, and among media entrepreneurs as well, when it would have been advisable that a minimum measure of consensus should have been reached, given the matter’s sensitivity.

3 – I have stated on various occasions that explicitness in public policies is essential for the quality of our democracy. This would thus recommend that some of the prescriptive conditions contained in this legislation should be reappraised by Members of Parliament, in order that the Journalist’s Charter comes into force without the subsistence of any doubts in its application, particularly as to such crucial instances as the violation of professional secrecy, the requisites required to exercise the profession and the instituted system of sanctions.

4 – As such – and without questioning the need for the violation of the journalists’ professional secrecy under given situations, which anyway, is already included in the existing legislation – I must point out that the provisions of article No. 11 of the Journalist’s Charter (hereinafter referred to as «Charter») allows for diverging interpretations, and could open an area of juridical uncertainty and insecurity in a particularly delicate environment, whether it be for the activity of journalists, whether for the effectiveness of penal action.

Firstly, the liaison between the system determined by article No. 11 of the Charter and the provisions of the Code of Penal Procedure, as to the dispensation of professional secrecy, particularly article No. 135 of this code, which specifically refers to the professional secrecy of journalists, is not sufficiently clear.

Several factors suggest that a specific juridical determination for journalists was not wished for in this instance. In effect, the derogation of the provisions of the Code of Penal Procedure is not only not expressly foreseen in the Charter but, on the contrary, No. 3 of article No. 11 includes the statement «in accordance with the provisions of the legislation on penal procedure». Further, the changes in the Code of Penal Procedure, recently approved in Parliament, expressly maintain the inclusion of journalists in the system defined in article No. 135 of that same Code.

Notwithstanding, article No. 11 of the Charter contains, with reference to the violation of professional secrecy, a number of presuppositions which are difficult to link directly with the legislation on penal procedure, as would be desirable given the umbrage, for the exercise of journalistic activity, of revealing sources of information. As such it is not clear if a court may only order the revelation of the sources of information in the cases foreseen in No.3 of that same article No. 11 or, as is the case with the remaining professions (lawyers, physicians, banking officials), it can do so in the terms of general legislation.

On the other hand, the listing of the presuppositions which permit the obligatory revelation of sources is not accurate in juridical terms, with the use of wording such as «serious crimes» or «serious cases» («serious cases of organized crime») which could undoubtedly originate juridical uncertainty and insecurity.

5 – It is yet to be clarified, in its exact meaning, if the restriction of the profession to graduates of higher education corresponds to the most adequate and proportionate solution, especially since its reason is not explicit, once it does not specify graduation in Mass Media or in a connected area. Since such a requirement is not explicit it is difficult to understand why such a requisite, on its own, would guarantee from its inception a better quality or fitness to become a journalist. Further, this requisite, such as stated in No. 1 of article No. 2 of the Charter, when requiring higher education for candidates to be employed as journalists, would imply an increase in employee expenditure, which could eventually threaten the feasibility of small and medium size enterprises in the area of mass media (local radio stations or regional press), which would in turn imply an unquestionable compression of plurality of information and of the freedom of economic initiative.

As such, it would be useful to ponder if, on the contrary, in this domain, logic of self regulation should not prevail which would guarantee, both to media enterprises and to journalists, greater freedom and flexibility in the access to the profession.

6 – The sanctions system foreseen is also not very clear, especially when compared with that applicable to other professional activities. The underlying reasons for this are not explicitly put forward, nor were they satisfactorily made clear in the procedure that led to the approval of this legislation.

The grading of the sanctions is determined as a function of culpability, but its application depends upon a system, foreseen in article No. 21 of the Charter, in the terms of which, the determination of certain penalties depends upon the existence of previous sanctions.


As such, and contrary to what would result from general principles in the application of sanctions, these would not depend exclusively on the appraisal of the seriousness of the conduct and of the offender’s degree of guilt. It is thus possible that a journalist who practised an extremely serious unlawful act, with a high degree of guilt, and this conduct only subject to the lowest degree of sanction – recorded warning – whilst another journalist, with a less serious unlawful act and with a lower degree of guilt, could be suspended from his professional activity. Meaning that, for the purpose of application of penalties, what cannot but be considered as an excessive weight would be attributed to an offender that, in the three preceding years, had been subject to other disciplinary sanctions. This is a serious limitation to the competences attributed to the Committee for the Professional Licensing of Journalists, to freely decide and apply the sanctions considered adequate as a consequence of the seriousness of the conduct and degree of guilt of the offender.

It would thus be necessary not only to avoid an unfounded limitation to the application of sanctions for which the Committee for the Professional Licensing of Journalist is competent, but also to ensure logic conformity between the gravity of the conduct and the degree of culpability of the offender and the presuppositions of each applicable sanction.

In view of the above, in the terms and for the effects of the provisions of articles No. 134, item b) and No. 136, No. 1, of the Constitution of the Republic, I decided not to enact as law Parliamentary Decree No. 133/X, and request, based on the reasons put forward, a reappraisal of the said law.

With highest regards

The President of the Republic

Aníbal Cavaco Silva