André Freire 1 and José Santana-Pereira 2

Transcription

1 «The Portuguese semi-presidential system in times of crises, : A president caught between international responsibility and responsiveness to the electorate», paper prepared to be delivered at Panel P429: The Relationship between Heads of State and Prime Ministers (Section Presidential Politics. Powers and Constraints in Comparative Perspective), Chair: Thomas Sedelius, ECPR General Conference, Prague, Czech Republic, 7-10/9/2016. André Freire 1 and José Santana-Pereira 2 Introduction While there are different interpretations in the literature, not all of which agree, it has been said Portugal has a semi-presidential system of government in which a directly-elected president exists alongside a prime minister who is politically responsible to parliament. In terms of the president s constitutional powers and its exercise (formal and material constitution), the existing literature suggests Portuguese semi-presidentialism is neither one of the weaker (e.g. Slovenia, Ireland, Austria) (Elgie 1999; Metcalf 2000; Shugart & Carey 1997; Siaroff 2003; Novais 2007; 2014; Freire & Pinto 2011) nor one of the stronger regimes (e.g. the Weimar Republic, Finland before 2000, France, Poland at various times, Cape Verde, São Tomé e Príncipe), but that rather for most of the time since 1974 and especially since the 1982 constitutional revision it has been somewhere in between (Canotilho & Moreira 1991; Sartori 1994; Novais 2014). The Portuguese constitution states: The president of the republic represents the Portuguese Republic, ensures national independence, the unity of the state and the normal functioning of the democratic institutions, and is, in effect, the supreme commander of the armed forces (República Portuguesa 2005, Art. 120). 3 The first article of the constitution also states: Portugal is a sovereign republic based on human dignity and the will of the people and is 1 Associate professor with Aggregation / Habilitation at ISCTE-IUL, Instituto Universitário de Lisboa, and researcher at CIES-IUL. Director of the political science doctoral programme, specialising also in international relations, at ISCTE-IUL, Instituto Universitário de Lisboa. 2 Post-doctoral researcher at ICS, University of Lisbon, and invited assistant professor at ISCTE-IUL, Instituto Universitário de Lisboa. 3 Emphasis added. 1

2 committed to the creation of a free, just and supportive society. 4 The president s constitutionals duty, therefore, is to protect the sovereignty of the nation (responsiveness) and its democratic order (constitutional responsibility). Furthermore, Article 134 states the president s duties include ensuring all laws made by parliament and by the executive (decreelaws) strictly observe the letter and spirit of the constitution. The president also has some legislative powers, which include a veto (República Portuguesa 2005, Art. 138). While the presidential veto can only delay parliamentary legislation it can stop decree-laws, although this can be overcome quite easily when the government enjoys a disciplined and cohesive parliamentary majority in the parliament. One of the duties that became significant towards the end of a presidential term, and which is the focus of this article, is the presidential authority to appoint the prime minister (República Portuguesa 2005, Art. 113). This power is also limited, however, as the prime minister can only be appointed after the leaders of all parties represented in parliament are heard, and any decision must take the results of the election into consideration. It is the prime minister who chooses the government ministers who are then formally appointed by the president. Since 1982 government has been the political responsibility of parliament (Freire & Pinto 2011; Novais 2014), with the president s responsibility being purely institutional (concerning the normal operation of democratic institutions which is the only acceptable reason the president can have for dismissing a government). Neither the dismissal nor formation of a government depend on enjoying the confidence of the president (Sartori 1994; Canotilho & Moreira 1991; Freire & Pinto 2011; Novais 2014; Pinto 2016). The 1982 revision of the constitution and the change of political conditions in relation to government and parliament between 1987 and 2002 has resulted in a significant increase in the political power of the prime minister, which has turned the office into something that can be described as being a kind of prime ministerial presidentialism (Freire 2010; Moreira 1989; Freire & Pinto 2011). Research into the Portuguese case shows there has been a significant change in the role of the president: a change that depends on political conditions (especially the type of parliamentary majority and political congruence with the president) and on the timing of the presidential terms (Duverger 1980; Cruz 1994; Lobo & Neto 2009; Freire & Pinto 2011). Here we will explore to what extent short-term economic conditions, as well as the Troika s foreign 4 Emphasis added. 2

3 intervention ( ) currently known as the bailout on Portugal /by the CE, ECB and the IMF), enhance or mitigate these two political factors. Between 2011 and 2014 and in the context of a serious economic crisis Portugal required a bailout from the European Commission, European Central Bank and the International Monetary Fund (the Troika) that resulted in the country being placed under its supervision. During this period, Portugal was an illustration of the dilemma noted by Mair (2011), which states that the processes of globalisation and Europeanisation particularly in the context of the sovereign debt crisis and external intervention have made the country s political parties responsible to two different types of actor: the electorate and international partners (other EU member state governments and the Troika institutions). This has brought the dilemma between responsiveness to the demands of the electorate (the source of sovereignty for nationally-elected political bodies) and responsibility into sharp relief. The purpose of this article is to analyse the role of the president role during his second term in office ( ) and to assess on what side of the scale his attitudes and activities fell whether on the side of meeting the nation s international commitments (international responsibility), or its national commitments to uphold the constitution (domestic responsibility) and responding to the demands of the electorate (responsiveness) or if he achieved a balance between both obligations. The article is divided into three parts. In the following section, we analyse some of the important theoretical contributions, with a special focus on the important dilemma facing semi-presidentialism at times of crises (the balance between international responsibility and responsiveness and national responsibility) and provide a number of contextual details about how Portuguese democracy operated from 2011 to We go on to examine the president s discourse outlining his understanding of his role during the bailout, about the crises and austerity, the exercise of his legislative powers during his second term in a longitudinal perspective (and the factors explaining the differences between Cavaco Silva s first and second terms), the occasions he used (and refused to use) his power to veto laws and request rulings by the Constitutional Court and his role in the formation of the 21st constitutional government. The paper ends by outlining the main findings. 3

4 Semi-presidentialism at a time of crisis: International responsibility versus responsiveness (and domestic responsibility) The great liberal revolutions of the 18th century brought about important innovations to the art of government (Freire 2014). Underlying these innovations, beyond the aim of eradicating tyranny (through the separation of powers) and the arbitrariness of power (through Bills of rights), there was one guiding principle government based on consent and free, fair and frequent elections were introduced as the basic mechanism for ensuring this (Schedler 1998; Manin et al. 1999; Freire 2014). In democratic representative regimes, it is those who are elected who govern by taking into account the basic choices of the electorate. The political parties present the electorate with a package of policies and are then selected on the basis of these proposals, which then serve as the goals of government (Schedler 1998). Once their allotted time in office is over, the electorate will decide if they were governed in accordance with their previously expressed preferences. As a result of the Troika bailout programme, from May 2011 to May 2014 Portugal was effectively controlled by external agents who severely restricted Portuguese sovereignty while limiting the actions of both the government and the president. The Memorandum of Understanding (MoU) signed with the Troika in 2011 contained a large privatisation programme, called for an extensive and profound programme to deregulate the labour market and reduce the size of the state through the implementation of pay freezes and the phased reduction in the number of state employees, while also calling for the rationalisation of the state and reductions to the cost of doing business. The programme also called for the recapitalisation of the banks as a means of both ensuring compliance with the new capital ratios demanded by the EU and of providing credit to businesses (Moury & Freire 2013). The MoU also established a framework within which the political parties could make proposals and which restricted the choices open to the electorate in the June 2011 general election (Freire & Santana-Pereira 2011). During the campaign, the Socialist Party (PS Partido Socialista) said it would honour the agreement, although it did not share the radicalism of the Social Democratic Party (PSD Partido Social Democrático), which saw the agreement as a way for Portugal to make amends for its recent excesses, confirming it would go much further than the Troika. It should be noted that, in terms of state reform, the PSD claimed it wanted to trim the fat (intermediary costs, duplication of functions, cuts to public-private partnership charges) and not cut the welfare, and it openly assumed a number of commitments to this end. The 4

5 manifesto of the CDS-PP was more moderate, occupying a position midway between the PS and the PSD. The Left Bloc (BE Bloco de Esquerda) and Portuguese Communist Party/Green Party (PCP/PEV Partido Comunista Português/Partido Ecologista Os Verdes ) remained bitterly opposed to the MoU and called instead for debt renegotiation. With no single party winning a parliamentary majority, the PSD and CDS-PP formed a majority coalition. Throughout the legislature, the concept of government based on consent was constantly threatened. In fact, many of the right-wing government s flagship measures including public sector pay cuts, reductions in pension and benefit payments and the harsh tax increases had been in the manifestoes of neither of the coalition parties and nor were they contained in the 2011 MoU, which formed the basis of the choices facing the electorate in June 2011 (Freire 2016a; Freire 2016b; Gouveia & Piçarro 2013). There is an abundance of empirical evidence supporting the idea that the government had implemented an ideological programme on which it was not elected and which would have been very difficult for it to impose (either socially or politically) on the Portuguese political system but for the context of the bailout (Moury & Freire 2013; Freire et al. 2015). While a failure to deliver on manifesto promises is not new to Portuguese democracy, the failures during the legislature were unprecedented in their breadth, depth and severity, undermining the electorate s trust in politicians and, ultimately, their faith in democracy itself. Elections cannot give the winning party free rein to do what they wish (Schedler 1998). In 2012 the Portuguese were asked if they thought the emergency economic and financial situation in which the country found itself justified the violation of the commitments made by the governing parties (Freire et al. 2012), with 68.1% of those surveyed saying it did not (including 60.3% of supporters of the right-wing parties). Voters were also asked if the government was sharing the sacrifices fairly in applying the Troika programme, with the majority again saying they did not think this was the case (90.6% of all respondents and 77% of supporters of the right-wing parties). It should be noted that the position of those who voted for parties of the right contrast quite strongly with the views expressed by PSD and CDS-PP deputies, resulting in a strong incongruence between the electorate and those they elect the opposite was true for those on the left (Moury & Freire 2013). The coalition government also operated at the very limits of the constitution. No fewer than 22 of their proposals were declared unconstitutional (Gouveia & Piçarro 2013; Novais 2014; Ribeiro & Coutinho 2014) but only 12 following the President s requests: see Table 2 below -, 5

6 while the sacrifices they demanded of capital and labour were significantly unbalanced an asymmetrical austerity (Freire 2016a; Freire 2016b) that in and of itself demonstrated the significant degree of discretion available to national politicians at a time of external intervention: that is to say, the national government was not just a puppet hanging on strings being controlled by the Troika (Moury & Freire 2013; Freire 2016a). The result of this asymmetrical austerity can be seen quite clearly in the Eurostat data showing the declining relative weight of wages in Gross Domestic Product (GDP). In 2015 Portugal had the sixthworst wage to GDP ratio, having reached its lowest level since 1960 (Aníbal 2016). There was a small reduction in inequalities measured by the Gini index between 2011 and 2013 (resulting from the compression of middle-class salaries and pensions); however, the gap between the rich and the poor grew, as did poverty levels and severe material deprivation (Bancaleiro & Aníbal 2014). Portugal experienced the largest number of cuts to social programmes of any EU country during this period (Suspiro 2014), while macroeconomic results (in terms of the public debt to GDP ratio, the public debt, unemployment and economic growth) remained very poor (Freire 2016a; 2016b). However, there were some positive results: the reduction in the external trade deficit ( ) and the country s alleged improved credibility with international partners and investors. Interest rates on Portuguese debt have fallen sharply since 2012; however, while there are those who claim this is due more to the increasingly assertive intervention of the European Central Bank (ECB) in purchasing national debt than to the specific merits of these countries (Sánchez-Cuenca 2014), it has to be said additionally (on the side of general factors) that interest rates have been very low across the EU and United States since 2013 (Aníbal 2014). Furthermore, between 2013 and 2014 there have been signs of a slight recovery in GDP growth and a fall in unemployment; however, these developments have been too weak to make any real difference. In any event, the fall in unemployment must be put in the context of the large wave of emigration (Albuquerque 2013), and the poor quality, instability and low pay of the newly-created jobs. In fact, much of the fall in unemployment is due to a large number (of temporary) public sector internships, which have been responsible for the (artificial) reduction in the rate of unemployment (SIC Notícias 2014). Nevertheless, a second bailout was avoided, which was an incredibly important result, particularly given Greece is already on its third rescue plan (Freire & Lisi 2016a). 6

7 Insert Table 1 about here This all appears to have led to a decline in the confidence Portuguese have in their political institutions, which in 2012 was much lower than in other institution (except the banks and financial system, see Table 1). Apart from the president, the ranking situation was the same in 2008 in relation to all political institutions; however, from the situation got much worse. In the context of an erosion of social and working rights, it is interesting to note that only the trade unions were trusted more 2012 than in It is also interesting to note the fall in trust in the EU. It is not difficult to understand the reason for this given the EU s responsibility for the difficulties many European countries are experiencing particularly those countries that have accepted financial assistance programmes. Data for 2014 shows there has been a slight economic recovery from the depth of the crisis in , but that it remains below the levels of 2008 a clear indication of the effects of the crisis. The situation in other countries subject to austerity programmes is identical (Sánchez- Cuenca 2014, pp.59 77; Freire & Lisi 2016a). In Portugal, it is difficult not to see in the extraordinary betrayal of election promises one of the factors accounting for the decline in trust in political institutions. Insert Figure 1 about here The situation in terms of the public s satisfaction with how democracy in Portugal functions is equally problematic (Figure 1). The decline dates back to when the country joined the single currency; however, the crisis made this situation much worse, while the recovery of was limited and weak. Again, this trend is particularly pronounced in those countries that were worst affected by the crisis, especially those in the southern periphery, while it is much less evident across the rest of Europe (Sánchez-Cuenca 2014; Freire & Lisi 2016a), suggesting the crisis is at the root of these developments. How do we understand the role of the president in this context? An eminent German sociologist informs us that the indebted Western capitalist states of today operate as if there are two types of constituents: State s people (Staatsvolk) and financial markets people (Marktsvolk) (Streeck 2013, pp ). This idea was first developed by Mair (2011) as the conflict between responsiveness towards the sovereign power at the national level (the 7

8 electorate, or Staatsvolk) and the international responsibility (of governments and national parliaments towards other governments, parliaments and international institutions, as well as towards the Marktsvolk) developed a situation that is particularly pronounced with globalisation, multi-level democratic systems and external interventions, such as financial bailouts. By favouring responsiveness governments and presidents are more responsible and responsive to their electorate, but this can lead them to fail to meet the state s international commitments while favouring international responsibility can undermine the democratic legitimacy of the nationally-elected political bodies. Clearly, this is not an easy dilemma to resolve; however, the responsibility noted by Mair points to the external dimension. Nevertheless, when looking at this dilemma we must also include responsibility to the constitution that the president, prime minister and the government swear to uphold when taking office. Cavaco Silva s second term The presidency in times of financial bailout, according to Cavaco Silva. The bailout was both the president s biggest worry and the greatest on political activity during these years. In March 2013 President Cavaco Silva wrote that the commitments to the international institutions, which were supported by a large party political consensus... define the framework that since May 2011 has been a standard for the actions of the public authorities, including the president, in both domestic and external matters (Silva 2013, p.15). He then outlined what he considered to be his role in foreign policy, which was to: reassure international partners the national authorities are determined to meet their commitments to external bodies in full; keep them informed of the progress made; emphasise the political and social consensus in terms of carrying out the adjustment programme while highlighting the sacrifices imposed on the Portuguese people; outline the negative effects of the adjustment programme on the Portuguese economy; and remind Portugal s European partners that the success of the bailout is of interest to the countries being bailed out and to the EU as a whole. On the domestic scene, the president saw it as his duty to use his office to exert influence in a way that would preserve the political and social consensus. His appeal to the traditional parties of government (PS, PSD, CDS-PP) to come to an agreement was a common thread in his discourse (Silva 2012; 2013; 2014), particularly during the crisis of the summer of 2013 and in the aftermath of the October 2015 general election which were also the moments in which 8

9 his popularity ratings reached new lows (De Giorgi & Santana-Pereira 2016; Fernandes & Jalali 2016). Disagreements within the coalition in 2013 created the potential for a political crisis that Cavaco Silva attempted to resolve by encouraging the coalition government to reach out to the PS to reach an agreement for national salvation. While no agreement was reached (Silva 2014; Pinto 2016) the government survived, with the PSD and CDS-PP quickly coming to an understanding. Again, in the wake of the October 2015 election, the president strongly encouraged the three parties to come to an understanding, again without any success (De Giorgi & Santana-Pereira 2016). Just why did the president seek an agreement? He said that failure to do so meant it was certain that during a serious political crisis, during the critical phase in the execution of the financial assistance programme, it would leave the country in an even worse situation and that it was his duty to prevent this from happening (Silva 2013, p.29). In March 2014, he said it was essential that there be a medium-term agreement between the political forces committed to the financial assistance programme (Silva 2014) that must focus on the goals of political stability, governability and the implementation of measures consistent with the country s commitments to the end of the next legislature (2019), given that they concerned goals independent of the electoral cycle. Such an understanding would in no way prevent political alternation, nor would it put an end to political diversity or the plurality of ideas within the political parties. Focusing on structural and consensual aspects of the parties of government, seeking to adhere to the rules Portugal signed up to within the framework of its involvement in the European project, an agreement of this nature... would serve the interests of all Portuguese (Silva 2014, p.24). The president believed Portugal had to honour its commitments to the international community, both because the release of further tranches of the loan depended on it and because the idea of restructuring the public debt would, in his opinion, have seriously negative effects (Silva 2013). Nevertheless, he often mentioned his belief that the sacrifices being demanded as a consequence of the adjustment programme should be shared more fairly, for the solidarity between generations to be preserved, for the uneven regional development to be addressed and of the need for austerity to be accompanied with stimulus and growth programmes. In October 2011, he spoke about the lack of fairness in some of the measures announced by the government, including the planned abolition of the holiday and Christmas payments for 9

10 public sector employees. At the time, some of his detractors believed his statement to be more one of concern for his own position as a state pensioner rather for any citizens who may be affected (Pinto 2016). His January 2012 gaffe, when he stated publicly that his pensions were not enough to meet his expenses (Pinto 2016) only strengthened the criticism of him and led to a sharp fall in his popularity (Fernandes & Jalali 2016). In his 2013 New Year message, Cavaco Silva emphasised the need to prevent a recessionary spiral caused by the commitment to austerity not being accompanied by an economic development plan (Silva 2013). In his speech to parliament on the 39th anniversary of the Carnation Revolution, he stressed this point, saying the austerity measures that had been implemented had a much greater recessionary effect than originally anticipated, and that this was due to failures in the government s estimates that had led to austerity fatigue and a lack of concern for the situation (Silva 2013). In his understanding of the president s relationship with the government at times of crisis, Cavaco Silva preferred to intervene discretely in a manner that respected his influence on the government s legislative output. His contacts were designed to help make clear the content of some of the Bills while persuading the government to introduce formal or substantive changes to them being an important part of his involvement behind the scenes. He also rejected adopting «a populist posture» and intervention that would gain him momentary popularity: he believed adopting such a posture would be damaging to the country: In times of crisis such as we are experiencing today, it would be easy to take advantage of a presidency with no direct executive responsibilities and, through inflammatory public statements, satisfy the instincts of a certain branch of the media, of some political analysts and of those who wish to challenge the institutions. It would be easy, for example, to encourage feelings against the political classes or even against the actions of the government; however, this is not my understanding of responsible action by a president of the republic, much less during times of grave crisis (Silva 2013, pp.32 33). This position has been criticised by analysts and specialists who believe the president should be an actor and not a spectator, and that his apparent inability to act was the cause of his popularity ratings falling to their lowest level (Cordeiro 2013). 10

11 The exercise of legal powers during the crisis: A longitudinal view The president is an important actor in Portuguese politics, enjoying legal powers with which to limit the activities of government and the parliamentary majority supporting it, including a right of veto and to request judicial review (both prior and subsequent) by the Constitutional Court. Thus, the Portuguese President is a fundamental veto player (Tsebelis 1995). The question facing us here, though, is has the president exercised his powers effectively, and if so to what extent? This is particularly important given the gravity of the situation in which Portuguese democracy finds itself and the restrictions on the national sovereignty as a result of the external bailout. We know the Constitutional Court has been particularly active and its many important and for some controversial rulings of incompatibility with the constitution during the legislature were a demonstration of both the separation of powers and horizontal responsibility. They were also an indication of the seriousness of the crisis and of it being seen as an opportunity by an executive that has often governed at the extreme limits of Portuguese constitutional order (for a contrasting view of this, see the condescending face of the government and its parliamentary majority in Ribeiro & Coutinho 2014; for a more sympathetic view of the Constitutional Court see Novais 2014 and Gouveia & Piçarro 2013). Insert Table 2 about here In order to analyse this situation, we must take into account the president s constitutional powers and the differences in political conditions that were responsible for increased or decreased levels of presidential activism. The existence of a solid and cohesive parliamentary majority (which can more easily overcome presidential vetoes), the ideological and political congruity between the president and the parliamentary (and governmental) majority, suggests there would be fewer differences between the president and the government, and the first term of any president (as a result of their need for re-election) tends to be a time of limited presidential activity (Lobo & Neto 2009; Freire & Pinto 2011). Theoretically at least, the first two elements should have resulted in less presidential activism by Cavaco Silva, while the third should have resulted the opposite. It was expected that Cavaco Silva would become more active during his second term, not least because this was a promise he made to the electorate during his re-election campaign (Fernandes & Jalali 2016; Silva 2012; 2013). Considering the three indicators of presidential 11

12 intervention presented in Table 2 as a whole (requests for prior and successive constitutional review and vetoes), however, we see Cavaco Silva was the only civilian president to use his legal powers on fewer occasions during his second term than his first (22 and 26, respectively). 5 This is more remarkable because of all civilian presidents, he was the most active during his first term (in their first terms, Mário Soares and Jorge Sampaio used these powers 24 and 19 times, respectively). With Soares and Sampaio, their reason for making greater use of their powers during their second terms was the fact they were cohabiting with governments led by their political opponents (in Sampaio s case for just some of his second term), while in the case of Cavaco Silva, the cohabitation took place during his first term and at the very beginning of his second term, meaning his initial expectation of another term of cohabitation was overtaken by events and the result of the 2011 election that produced a government with of the president s political hue. Given the notorious difference between the frequency of his use of the president s legal powers during his second term and that of Soares and Sampaio (who used the powers 2.5 and 3.2 times more frequently, respectively, than Cavaco Silva), we would be well advised to consider other explanatory factors that go beyond the institutional and questions of timing. The gravity of the economic and financial crisis and limitations to national sovereignty resulting from the external intervention acted to limit presidential activity during Cavaco Silva s second term. Fernandes and Jalali (2016) claim Cavaco Silva s reduced intervention was due to the bailout, and that for most of his second term he was caught between a rock and a hard place. If he was seen to be encouraging popular dissatisfaction with the austerity caused by the bailout and to use his powers in mitigation, he could have created additional problems in the already difficult task of implementing the adjustment programme. This, in turn, could have had undesirable consequences in the Troika s quarterly assessments. On the other hand, were he to take ownership of the austerity agenda, he would risk being seen to replace the elected government (which had taken on the adjustment programme as its own) with the possibility of it making him unpopular in political circles, thereby limiting his ability to persuade other political actors. The fact the coalition government was going further than either demanded by the Troika or proposed in its election manifesto, alongside the asymmetrical austerity (which the president said it had to seek to avoid) and a government that often acted at the very boundaries of constitutionality, were factors demanding he act with discretion in order to retain some margin for manoeuvre for national political actors before the Troika, which, 5 We exclude President General Ramalho Eanes, the first to be elected after the transition to democracy. 12

13 according to our standpoint, could create conditions for more presidential involvement particularly since the president is the guardian of the constitution and of democratic political order. The other reasons for Cavaco Silva not using his legal powers are of a party political nature. During the January 2011 presidential election campaign, Cavaco Silva expected he would need to deal with the Socialist prime minister, José Sócrates, for another two-and-a-half years he expected to spend at least half of his term in cohabitation. Shortly after his second term began, however, the economic crisis collapsed into a political crisis that resulted in the resignation of Sócrates, the dissolution of parliament and the calling of an early general election in June, which in turn led to the formation of a coalition government involving the PSD (which Cavaco Silva had led for almost a decade) and the CDS-PP. Consequently, for most of his second term, there was marked by a solid and cohesive ideological congruity between the president and the parliamentary majority supporting the government. There is no agreement on this explanation, however, and Fernandes and Jalali (2016) list a set of counter arguments. Cavaco Silva sometimes proposed initiatives that did not please the government (such as the request for review and veto on the unconstitutionality of austerity measures in the 2013 Budget; the 2013 New Year speech in which he spoke of the recessionary spiral; the exertion of pressure for an agreement between the incumbents and the PS, particularly in 2013 and 2015; and his veto of a law that had been passed unchanged by parliament. See tables 5 and 6). Despite being from the same ideological family (or, in the case of the president and prime minister, linked to the same party), the relationship between Cavaco Silva, Passos Coelho and Paulo Portas had never been particularly close or friendly. Despite all this, from our standpoint the undeniable congruence between the president and the government/parliamentary majority, both on the political-ideological direction and the scale of the conflict between national responsiveness and international responsibility and their understanding of the crisis, the bailout or austerity discussed above, this seems to us to have been a factor that has had much more weight than Fernandes and Jalali attribute it. Insert Table 3 about here Insert Table 4 about here 13

14 There are even more factors that can help explain Cavaco Silva s limited activism during his second term compared to those of Soares and Sampaio. One of these was the huge loss of popular support for Cavaco Silva between his first and second terms (Fernandes & Jalali 2016), which was in sharp contrast to the previous presidencies (Veiga 1998). Clearly this could have been a result of the crisis and its socio-economic effects (an argument corroborated in the individual-level data analysis, based on mass surveys, presented in Freire 2016a); however, it is also associated with the political management of the crisis and the association between the president and the governing majority, an accusation the left-wing opposition parties (PS, BE and PCP/PEV) repeatedly threw at Cavaco Silva (Fernandes & Jalali 2016; Freire et al. 2015; Freire 2016a; 2016b). There was also the question of Cavaco Silva s weakness, given he was reelected with the fewest and the lowest percentage of votes in the history of Portuguese democracy even if we only consider presidential elections (Table 3). Cavaco Silva was also the only president in the history of Portuguese democracy in which the absolute number of votes cast for the president was lower than the total number of votes cast for the parliamentary majority (Table 4). While this is partially due to the extraordinarily low levels of electoral participation in 2011, even if we only count the percentage of votes, Cavaco Silva received the lowest number in the election for his second term compared to the votes cast for the majority party in parliament. Vetoes and non-vetoes, requests and non-requests for rulings on the constitutionality of economic matters. Concerns over the distribution of sacrifices seem to have troubled the president during the analysis of the budgets in the bailout years. Nevertheless, he did not always decide to ask the Constitutional Court to rule on the constitutionality of the austerity measures being implemented (particularly in respect of cuts to public sector wages and pensions). He expressed some concerns about the scale and fairness of some measures contained in the 2012 Budget (Correia 2011), yet he did not ask for a ruling. Instead, it was a group of opposition deputies who called for a decision, with the Constitutional Court ruling a number of the measures proposed were unconstitutional (Fernandes & Jalali 2016). Some journalists asked Cavaco Silva if he regretted not asking for a ruling, to which he responded: it could undermine the entire budget were a president to seek a prior ruling from the Constitutional Court on the constitutionality of a simple clause. There would be no budget (Jornal de Notícias 2012a). This standpoint is clearly contested by the (left leaning) high profile constitutionalist 14

15 Jorge Reis Novais from both the standpoint of constitutional theory and political stances (see Novais 2014). When it came to the 2013 Budget, which contained similar measures, he decided to act and ask for a ruling, 6 due to concerns he had regarding the extent to which the sacrifices were being fairly shared (Pinto 2016). Cavaco Silva spoke of the different treatment being meted out to public sector workers, class taxes and, in respect of measures affecting pensioners, the violation of their legitimate expectations and their real acquired rights (Público 2013). Cavaco Silva took action two weeks after the budget was published, when it became clear the PS, BE and PCP appeared ready to approach the Constitutional Court for a ruling (Público 2012). This strategy meant the year would start with a budget in place, while the president was able to beat the opposition to the punch in requesting a ruling. The request to the Constitutional Court for a ruling on three articles in the 2013 Budget law rather unsurprisingly resulted, in April 2013, with them being ruled unconstitutional: 7 a decision Fernandes and Jalali (2016) claim was popular with the public. The 2014 Budget, which yet again included measures similar to those that had been ruled unconstitutional, prompted a presidential request for a ruling from the Constitutional Court. This may have been because he did not want to create instability during the final years of the adjustment programme (Fernandes & Jalali 2016). In October 2013, he confirmed his decisions in respect of requests for prior or subsequent rulings on the constitution nature of state budgets were based on careful assessments of the costs involved, which is what happened that year (Fonseca 2013; Visão 2013a; the used of subsequent rullings in clearly contested by Novais 2014, for both constitutional and political reasons). At the beginning of 2014, a presidential source said that opinions on the 2014 Budget the president had requested, bearing in mind the jurisdiction of the Constitutional Court, do not suggest there are any unconstitutional articles in the budget (Lusa 2014). However, the advice the opposition received was somewhat different, leading it to request a ruling on four of the clauses contained in the budget, three of which (public sector pay cuts, cuts to basic pensions and 6 Cavaco Silva revealed this Wednesday that the articles of the State Budget over which he had concerns regarding their constitutionality... are those calling for the suspension this year of the holiday subsidy to public employees (29), the suspension of 90% or equivalent of the holiday subsidy to pensioners (77) and the introduction of an extraordinary solidarity tax to be paid by pensioners with pensions above 1,350 euros (78). Measures worth almost two billion euros (Aníbal 2013). 7 In particular, the cut to the holiday subsidy for public sector employees, pensioners and teaching and research contracts, and a tax on health and unemployment benefits. 15

16 taxes on health and unemployment benefits) were ruled in breach of the constitution by the Constitutional Court (Crisóstomo et al. 2014). Austerity was not just a product of the budgets. Other measures were designed to cut spending and/or increase receipts via changes to the legislative framework on workers rights, and particularly on the rights of public sector workers. The president did not appreciate the call from Jerónimo de Sousa, leader of the PCP, and the leader of the General Confederation of Portuguese Workers (CGTP Confederação Geral dos Trabalhadores Portugueses) union confederation, for him to veto changes to the Labour Code that they claimed would lead to a serious deterioration in the rights of Portuguese workers (Sol 2012; Lusa 2012). Cavaco Silva was strongly criticised by those on the left who believed his drive for changes to the Labour Code was still more proof of [Cavaco Silva s] commitment to the interests of big capital and a rejection of his sworn duty to defend, uphold and enforce the constitution. 8 The position he adopted in 2013 was slightly different. Requests were made for a ruling on Bills on workers rights, including the public sector regrading and the convergence of public sector pensions with those of the private sector (Visão 2013b; Jornal de Negócios 2013). Both Bills were ruled unconstitutional (Table 6), with a safeguard later incorporated into the regrading Bill to protect the majority of public sector workers from redundancy. The president passed the new General Public Sector Labour Law with this clause in place (Público 2014). In 2014, the only requests for prior rulings on financial matters (Table 6) occurred as the result of a request by the prime minister, Pedro Passos Coelho after several measures in the 2014 Budget had been defeated as a way of anticipating future defeats in the Constitutional Court during the critical post-bailout period (Dinis 2014). The Bills were declared unconstitutional. Insert Table 5 about here Insert Table 6 about here The only government Bill vetoed, in March 2014, sought to block measures destined to increase the percentage of their pay packet public sector workers paid for services such as the public administration health subsystem (ADSE), among others (Table 5). Pinto (2016) reminds us that this veto would have cost the government 33 million, but that it was easily 8 See Jornal de Notícias 2012b. During a visit to Madeira three years later, Cavaco Silva was on the receiving end of similar criticisms from a trade unionist (Lusa 2015). 16

17 circumvented by publishing it again shortly afterwards, after having being approved by the majority of deputies in parliament. Cavaco Silva and the appointment of the 21st constitutional government In 1994, Giovanni Sartori made a distinction between the formal (the letter and spirit of the basic law) and the material (effective operation of the political system within a particular constitutional framework) constitution (1994). While Portugal s 21st constitutional government, which did not take office until the end of November 2015 and was formed following the 4 October general election, complied fully with the formal constitution, the democratic parliamentary political practice and semi-presidentialism, it is a fact that the solution agreed upon was in contrast with how the material constitution has been applied since First, because a minority PS government has parliamentary support from the BE, PCP and PEV, the first time in 40 years of the democratic constitution that the radical left has been involved in government. It also represents a move towards greater inclusiveness in the political system and the increased responsibility of all party political forces represented in parliament (De Giorgi & Santana-Pereira 2016; Freire 2016a; 2016b; Freire & Lisi 2016b). The first question arising around this new government solution is: why only now? On several occasions in the past, when the PS had fallen short of an absolute parliamentary majority while left-wing parties were in the majority (1975, 1976, 1983, 1995, 1999 and 2009), the party preferred to either seek formal (coalition) or informal (supply and demand) support from the right in order to govern (Freire & Lisi 2016b). In our opinion, there are at least eight explanations for this situation. Insert Figure 2 about here The significant ideological shift of the right-wing parties, especially the PSD, further to the right during the previous parliament, made it much more difficult for the PS and PSD to come to an agreement (Figure 2) (Freire et al. 2016), is one explanation enabling an agreement between the parties of the left becoming a reality. 9 However, it is important to note the limitations to the president s powers in such situations, especially in relation to dissolving parliament. Doing so will help understand the situation and the solution that was hit upon, and which was far 9 For a discussion of several factors, see Freire & Lisi (2016b). 17

18 from being the president s preferred outcome. Because he was in the final six months of his term and it was the first months of a parliamentary term, Cavaco Silva did not have the authority to dissolve parliament and call fresh elections, and nor could he refuse to appoint a government on ground of political trust, because this was not in accordance with either the letter or the spirit of the constitution and had not been since The only alternative open to him was to appoint a caretaker government that would take office from October 2015 to June 2016, which would be very costly to the country. He was therefore obliged to appoint a PS minority government supported by political forces he believed to be anti-european and which were opposed to the country s military and political alignments (particularly membership of NATO) his only other solution was to keep the caretaker government in office until his successor could call fresh elections (De Giorgi & Santana-Pereira 2016). Also, before being obliged by circumstances to appoint the 21st constitutional government, the president tilted towards his international responsibility and view (ideological and other) of what was in the national interest, to the detriment of his responsibility to the Portuguese voters who had elected a parliament containing a majority of left-wing deputies. Conclusions The aim of this paper was to analyse whether Cavaco Silva s actions and attitudes during his second term ( ), which coincided with a serious economic and financial crisis and the intervention of the Troika (EC, ECB and the International Monetary Fund [IMF]) were more concerned with the country meeting its international commitments (international responsibility), first, or fulfilling its national commitments (domestic responsibility: complying with the constitution) and responding to the demands of the electorate (responsiveness), second or if there was a balance between these two aspects. While the assistance programme was in force, Cavaco Silva often spoke of the importance of complying with international agreements in order to maintain the confidence of investors and international partners. It is clear that the government s responsibility was to honour the state s international commitments; however, it is significant that the president the supreme guardian of the constitution was able to neglect the equally important need for substantial levels of trust between representatives and those they represent: that is, to give equal weight to the government s commitments to the electorate (Silva 2013, pp.4 5). The president s successive declarations and actions in this respect, as well as those of the government and its 18

19 parliamentary supporters, clearly show their lack of concern for their electorate as they focused almost entirely on the Marktsvolk. Despite the dominant trend in this direction, however, we must also recognise Cavaco Silva continued to express at least here and there some concern for the Portuguese and the need for market and Troika diktats to show some respect for them. Here, however, we can emphasise the following: at the level of his discourse, and despite his mixed nature, there is a clear tendency for greater emphasis on international responsibility over responsiveness to the electorate and national responsibility to the constitution; however, this relative imbalance is perhaps even more apparent in his limited presidential activity for example, by comparing his use of legal powers (vetoes and requests for constitutional rulings) to the use made of them by past presidents in their second terms. In other words, if the preferences expressed by Cavaco Silva during his second term in office seem to show him inclining more towards international responsibility than towards the wishes of the Portuguese electorate (responsiveness) and his national responsibilities (to the constitution), his use of his legal powers while in office show him to be clearly in favour of the former over the latter. References Albuquerque, R., Número de emigrantes em 2012 foi superior ao total de nascimentos. Público. Available at: Aníbal, S., Agora é muito fácil ter emissões de dívida bem sucedidas. Público. Available at: Aníbal, S., Medidas enviadas por Cavaco para o Constitucional valem mais de 1500 milhões de euros. Público. Available at: Aníbal, S., Peso dos salários na economia volta a subir após estar ao nível mais baixo desde Público. Available at: Bancaleiro, C. & Aníbal, S., Diferença entre muito ricos e muito pobres continuou a subir em Portugal. Público. Available at: Barómetro da Qualidade da Democracia, Inquérito à população portuguesa, Lisbon. 19