Who is the President of the Republic and what does he do?
- The President of the Republic is the Head of State. Thus, under the Constitution, he “represents the Portuguese Republic”, “is the guarantor national independence, the unity of the State and the proper working of the democratic institutions” and “is the Supreme Commander of the Armed Forces”.
As guarantor of the proper working of the democratic institutions he is especially charged, under his oath at the time of his inauguration, with “defending and complying and ensuring compliance with the Constitution of the Portuguese Republic”.
The democratic legitimacy that is his as a result of his direct election by the Portuguese is the reason for the formal and informal powers that the Constitution explicitly or implicitly grants to him, powers that the various presidents of the Republic have used.
- In his relations with the other sovereign bodies, he is charged, insofar as the government is concerned, with appointing the prime minister, “”following a hearing of the parties with a seat in the Assembly of the Republic and taking the results of parliamentary elections into account”, and then with appointing or exonerating the other members of the government “by proposal of the prime minister”.
The prime minister is charged with “informing the president about matters involving the country’s domestic and foreign policies”.
The president of may also preside over the Council of Ministers as and when so requested by the prime minister.
He may only dismiss the government, following a hearing of the Council of State, when the measure becomes necessary to ensure the proper working of the democratic institutions (which means that he cannot do so for simple lack of political confidence).
- In matters of relations with the Assembly of the Republic, the president may address messages to the Assembly, thus calling its attention to any matter that, in his view, calls for intervention by Parliament.
He may also convene the Assembly of the Republic on an extraordinary basis to deal with specific matters when it is in recess.
Lastly, he may dissolve the Assembly of the Republic with due regard for certain time limits and circumstances, following a hearing of the parties having a seat in the Assembly and of the Council of State, setting the date of new parliamentary elections at the same time. Dissolution is therefore, essentially, a solution for a governmental and parliamentary crisis or stalemate.
- One of the most important duties of the president of the Republic in the day-to-day life of the country is political control of the legislative activity of the other sovereign bodies. The president has no legislative powers, it is true, but he is charged with promulgating (that is, with signing), followed by publication, the laws of the Assembly of the Republic and the government’s decrees-law or regulatory decrees.
Until they are promulgated such acts are juridically non-existent.
However, the president is not obliged to promulgate, and he may therefore, under certain conditions, exert considerable influence over the content of the legislation.
Indeed, when legislation is received for promulgation, the president may, instead of promulgating it, do one of two things: if he has doubts as to its constitutionality he may, within 8 days, ask the Constitutional Court (which, as a rule, has 25 days in which to decide) to perform preventive control of the constitutionality of one or more of the rules (except in the case of regulatory decrees). If the Constitutional Court rules that it is unconstitutional the president may not promulgate the legislation and is bound to return it to the body that approved it.
Alternatively,– within 20 days in the case of legislation enacted by the Assembly of the Republic, or 40 days in the case of governmental legislation, reckoned in both cases as from the date of reception of the legislation by the president or from the date of publication of the Constitutional Court decision ruling the unconstitutionality – he may veto the legislation politically, that is, return it without promulgation to the body that approved it, stating, by means of a reasoned message, his political opposition to the content or timeliness of the legislation (political veto may also be exercised in the event that the Constitutional Courts ruling is that there is no unconstitutionality).
A political veto is absolute in the case of governmental legislation, but it is merely relative in the case of legislation enacted by the Assembly of the Republic. That is, while the government is bound to comply with the political veto and must therefore scrap the legislation or introduce the amendments proposed by the president, the Assembly of the Republic may get round the veto – and the president is obliged to promulgate it within 8 days if the legislation is again approved, without amendment, by a greater majority: as a rule the absolute majority of the Deputies or, in the case of more important legislation, by a two-thirds majority (organic laws, other electoral laws, laws concerning foreign relations, among others).
This means that in certain cases a political veto by the president will oblige the main political parties having a seat in the Assembly of the Republic to reach agreement if they are to overturn the veto. These include legislation that forms the structure of political system (organic laws that deal with the following matters: election to sovereign bodies, to bodies of the Autonomous Regions, or to local government; referenda; organisation, working and procedures of the Constitutional Court; organisation of national defence, definition of the duties arising therefrom, and general bases of the organisation, working and re-equipment and discipline of the Armed Forces; state of siege and state of emergency; acquisition, loss and reacquisition of Portuguese citizenship; political organisations and parties; the Republic’s information and State secret system; the finances of the autonomous regions; and creation and regulation of administrative regions). Besides these, there are also matters in which the Constitution itself requires consensus, in that it imposes a 2/3 majority for their approval – the media regulator; limits to the renovation of terms of office of those holding political office; exercise of voting rights by emigrants in presidential elections; number of deputies in the Assembly of the Republic and definition of electoral districts; system and method of election of local government bodies; restrictions to the exercise of rights by the military, militarised personnel and personnel of the security services and forces; definition, in the respective political-administrative statutes, of the matters that form part of the legislative powers of the autonomous regions).
Also with regard to regulatory legislation, the president may at any time request the Constitutional Court to declare the unconstitutionality, with general mandatory force, of any legal rule in force (abstract successive control) – with its consequent elimination from Portuguese law – or request that it verify whether there is any unconstitutionality as a result of omission (that is, a failure to comply with the Constitution as a result of omission of a legislative measure required to make a given constitutional rule enforceable).
- The President of the Republic is also charged with deciding to convene, or not, such national referenda as the Assembly of the Republic or the government may propose within the scope of their respective competences (or those regional referenda that the Legislative Assemblies of the autonomous regions may submit to him). It the event of wishing to convene a referendum, the president must request the Constitutional Tribunal to exercise preventive control of its constitutionality and legality.
- As Supreme Commander of the Armed Forces, the President of the Republic occupies the senior position in the hierarchy of the Armed Forces and he is therefore charged, in the matter of national defence, with:
In the field of international relations, as the supreme representative of the Portuguese Republic, the president is charged, besides declaring war and peace, with:
- presiding over the National Defence Council;
- appointing and exonerating, by proposal of the government, the Chief of the General Staff of the Armed Forces and the Chiefs of the General Staff of the three branches of the Armed Forces, following a hearing, in the latter case, of the Chief of the General Staff of the Armed Forces;
- ensuring the loyalty of the Armed Forces towards the Constitution and the democratic institutions and publicly expressing this loyalty on behalf of the Armed Forces;
- advising the government, in private, in respect of implementation of the national defence policy and being kept informed by the government of the situation of the Armed Forces and its elements, and consulting with the Chief of the General Staff of the Armed Forces and the Chief of the General Staff of the three branches;
- declaring war in the event of actual or imminent aggression and making peace, by proposal of the government in both cases, following a hearing of the Council of State and with the authorisation of the Assembly of the Republic;
- war having been declared, taking over its management in conjunction with the government, and contributing to the maintenance of the Armed Forces’ spirit of defence and readiness for combat; and
- declaring a state of siege or state of emergency, following a hearing of the government and with the authorisation of the Assembly of the Republic, in the event of actual or imminent aggression by foreign forces, of serious threat to or disturbance of the democratic constitutional order or of public disaster.
As guarantor to the unity of the State, the president, following a hearing of the government, appoints and exonerates the Representatives of the Republic for the autonomous regions; he may dissolve the Legislative Assemblies of the autonomous regions following a hearing of the Council of State and the parties with a seat in those Assemblies; and he may address messages to the Legislative Assemblies of the autonomous regions.
- appointing ambassadors and special envoys, by proposal of the government, and with accrediting foreign diplomatic representations; and
- ratifying international treaties (and signing international accords), following their approval by the competent bodies; that is, he is charged with binding Portugal internationally to those international treaties and accords that the government negotiates and the Assembly of the Republic or the government approve – only after such ratification do those rules of such international conventions as Portugal may have signed take effect under Portuguese law (with regard to international treaties and accords the president may also request preventive control of their constitutionality under terms similar to those required for other legislation).
As Head of State, the president is also charged with: granting pardon and reprieving sentences, following a hearing of the government; bestowing decorations and holding office as the grand master of Portuguese honorific orders; scheduling, in accordance with electoral law, the elections for sovereign bodies, for the European Parliament and for the Legislative Assemblies of the autonomous regions; appointing and exonerating, by proposal of the government, the president of the Court of Auditors and the Attorney-General of the Republic; appointing two members of the Judicial Service Commission and five members of the Council of State (which is his political consultation body, over which he also presides).
The type of powers held by the president therefore has little to do with the classical three-way division of powers between the executive, the legislative and the judicial.
His powers are much closer to the idea of a moderating power (particularly his powers of control or negative powers, such as the veto, although the Head of State, besides these duties, also has competence in political guidance, especially in the event of political crises, in times of a state of exception and in matters of defence and international relations).
However, over and above this, the President of the Republic may make particularly intense use of the symbolic attributes of his position and of his important informal powers. Under the Constitution he is charged, for example, with expressing his opinion “on all serious emergencies affecting the life of the Republic”, addressing messages to the Assembly of the Republic on any matter, or being informed by the prime minister “about matters invoicing the country’s domestic and foreign policy”. All the ceremonies he attends, his speeches, his communications to the country, his travels in Portugal and abroad, his interviews, his audiences or contacts with the people, these are all political opportunities of extraordinary scope in mobilising the country and the citizens.
Qualification of the president as “representative of the Republic” and “guarantor of national independence” means that the president, while not exercising direct executive duties, may therefore play an active and conforming role.