Portugal – On the presidential use of veto powers

Portuguese President Marcelo Rebelo de Sousa has just entered the second half of his five-year term in office, providing us with the opportunity to review the way in which he has used his powers to define a specific role for the presidency. In this piece, my attention will be centred on the use of veto powers.

Veto powers are generally associated with the “pouvoir d’empêcher”, that is, the power to limit the action of the government or of its parliamentary support basis. As such, it is often assumed that its use reflects an opposition between the president and the government or the parliamentary majority. However, the political use of veto powers is somewhat more complex than this simple assertion[1]. In order to grasp the full extent of this power and its political implications, one ought to begin by reviewing the pertinent constitutional provisions.

The Portuguese Constitution of 1976, revised in the definition of presidential competences in 1982, determines in section 136 that presidents have the power to promulgate or veto legislation emanating from the government (decree-laws) or parliament (laws). In the case of decree-laws, the presidential veto is final, although the government may decide to reintroduce the same issue by means of a law voted in parliament. By contrast, vetoes applied to parliamentary laws can be superseded if some requirements are met: as a general rule, parliament must approve the vetoed bill by an absolute majority of MPs; in the case of “organic laws” (i.e., designed to lay the foundations for strategic decisions, such as the organic law of the National Health Service), external relations, limits to economic sectors (private, public, co-operative), or electoral matters, then a 2/3rds majority is required. Sections 278 and 279 deal with the possibility of presidents requesting the Constitutional Court for a decision on the constitutional conformity of any piece of legislation. If deemed unconstitutional (even if only in a specific section), then the president must veto such bill on these grounds. In this instance, the law is returned to parliament and it is either rectified by simple majority or ratified by a majority of 2/3rds of MPs (the president being obliged to sign it if ratified).

This constitutional framework should now be read in political terms. For instance: it is clear that minority governments tend to use decree-laws in order to circumvent the need for an absolute majority in the House, and seldom use the facility of transforming the legislative rule into a parliamentary law. By contrast, calling for the intervention of the Constitutional Court gives presidents an opportunity to request a 2/3rds majority which is not necessarily easy to obtain, and thus represent a very strong power of opposition. Finally, the constitutional framework does not prevent presidents from informally returning legislative acts without a formal veto assuming the prime minister will introduce some changes deemed necessary to obtain presidential agreement. All these instances suggest that the use of veto powers has a strong political nature, and that choices are present when a disagreement emerges between the president and the authors of the legislative act. Presidents may opt for stronger or softer ways to deal with such disagreements

In a recent and thorough study of the relations between Portuguese presidents and governments, Vasco Franco proposed a classification of the different circumstances in which veto power is exercised [2]. Franco proposes two ways to look at presidential vetoes. First, he suggests that vetoes may fall in three categories:

a) “constitutional” or “juridical” (when they are supported by a declaration of the Constitutional Court);

b) “political”, when it is (i) freely exercised by the president; (ii) not on grounds of constitutional non-conformity; (iii) based on an appreciation of the contents and/or the opportunity of the legislative initiative; and (iv) accompanied by a written message to the parliament or the government; and

c) “transitional” which takes place when a president actually vetoes legislation that is pending at the time of the election of a new parliament, or the appointment of a new government – in which case there is no judgement as to the merits but only to the opportunity of the acts. Although this could be considered as a form of “political veto”, it ought to be distinguished because presidents who use them – and there are plenty of examples[3]– do not necessarily pass a negative judgement on the essence of the legislative act, but rather a willingness not to limit the options of the newcomers.

In addition, Franco considers the meaning or sense of the veto, having as a reference the interests of the government. Presidential vetoes on acts emanating from parliament can thus be considered as

(i) “cooperative” in cases where a different majority was formed to approve the bill in opposition to the parliamentary basis of the government – a circumstance that may occur when the country has a minority government;

(ii) “neutral” when the veto “is irrelevant vis-à-vis the interest of the government”; and

(iii) “conflictual, when the president uses his power to oppose directly the interests of the government.

This sort of classification is important, as it defies the simple reading of veto powers as a manifestation of opposition between the president and the government. In political terms, the constitutional competence can have different readings

Turning now to President Marcelo’s two and a half years in office, the most significant aspect of his use of the veto power is that so far he has never asked the Constitutional Court for advice (both in advance of vetoing a law, or subsequently, as was often the case before him). Two reasons may explain this behaviour. Firstly, Marcelo is a professor of constitutional law, and therefore he feels very comfortable with his own reading of the problems involved in the appreciation of each bill. Self-confidence is thus a critical element to be born in mind. Secondly, the current government and parliamentary majority seem to have been careful in avoiding the course of action pursued by its predecessors, which turned the Constitutional Court into a central political player in the years 2011-2015.

Be that as it may, President Marcelo vetoed 10 bills in the last 30 months. In all instances, he issued  a “political veto”. By doing this, he offered the current government and political majority ample room to introduce changes that allowed them to overcome the presidential veto without the need of a 2/3rds majority. Nine of those ten bills have subsequently been approved after the introductions of changes suggested by the president without the need to negotiate with the opposition. This is a highly significant political stance which highlights the willingness of Marcelo to distance himself from the government on issues where he disagrees with the current majority and is closer to the values of the centre-right politics of the original political family that he respects (such as the bill on surrogate mothers or the framework for political parties’ financing) without attacking the government by trying to use “constitutional” vetoes. At the same time, he captures a centrality in the political process that had moved away from the presidency to the Constitutional Court in the years before his term.

Apart from the ten formal vetoes, by August 2018, Marcelo had returned 18 bills to the prime minister – but none to parliament. Those bills seem to have remained in a kind of limbo, as the government does not seem to have found ways to sidestep the objections of the president. Again, this form of behaviour is destined to lower potential tension between president and prime minister, and is in line with the fact that Marcelo has so far refrained from using the mechanism of a “constitutional” veto.

Many voices on the right of the political spectrum, including several in the party to which Marcelo still belongs and of which he was leader from 1996-1999, complain bitterly that he does not join in the condemnation of the left-wing government’s strategic options. However, Marcelo’s stance is the one that better suits the political culture that grants presidents with a “moderating power” and does not view them as party-based elements in the parliamentary game – a stance that was forged during Mário Soares and Jorge Sampaio terms with public applause. The very high rates of popularity of Marcelo indicate that this stance has been equally well received by the Portuguese, the consequence of which is the enlarged room for presidential intervention. Veto powers used with discretion may not be, after all, a symbol of political clashes but rather a means to implement some sort of co-governance.

Notes

[1]For a subtle discussion of veto powers as a symbol of political opposition, see Paulo José Canelas Rapaz, “O ‘veto politico’ do Presidente da República Portuguesa (1986-2013): uso e variáveis políticas”, in António Costa Pinto & Paulo José Canelas Rapaz (eds), Presidentes e (Semi)presidencialismo nas Democracias Modernas. Lisboa, Imprensa de Ciências Sociais,2017: 193-216

[2]Vasco Seixas Duarte Franco, Semipresidencialismo em Portugal: poderes presidenciais e interacção com o governo (1982-2016). PhD dissertation in Political Science, Faculdade de Ciências Sociais e Humanas da Universidade Nova de Lisboa, 2018

[3]President Ramalho Eanes used this form of veto on 32 cases that were pending in 1985 when prime minister Mário Soares was replaced by Cavaco Silva; President Sampaio used this in 18 instances in 2002 when prime minister Guterres was replaced by Durão Barroso; and again 33 times when prime minister Santana Lopes was replaced by Socrates

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