Portugal – The memoirs of a president

In Portugal, ever since Mário Soares decided to publish annually his most relevant public interventions as a book, presidents have followed this practice. Soares published ten volumes of Intervenções (Interventions), Jorge Sampaio followed with Portugueses, and Cavaco Silva edited Roteiros(Roadmaps). These are collections of speeches in public occasions, with sometimes an interview or some other journalistic piece, and constitute a fundamental basis to analyse the terms in office of each president.

Cavaco Silva, however, ventured into new grounds when he decided to write his memoirs. Soares published a lengthy interview covering his entire life, including the years as president (Maria João Avillez.MárioSoares, 3 volumes). Sampaio has an authorized biography which also covers his years at the Palácio de Belém(José Pedro Castanheira, Jorge Sampaio, 2 volumes). No one had written individual memoirs centred on the role of the president. Cavaco Silva’s new memoirs come as a continuation of his previous books that covered his early life and his tenure as prime-minister for ten years (Autobiografia Política, 2 volumes), and respond to the need felt by the author to “offer citizens precise and clear information on the actions I undertook while discharging public functions”. In all, we dispose of four volumes of memoirs, a first hand testimony which is invaluable for the comprehension of his political persona. This post aims to discuss some of the issues raised by the most recent volumes, without any intention of exhausting the theme

These recent volumes are called Quinta-feira e outros dias(Thursday  and other days), as they  purport to focus on the relations between the president of the Republic and the government, Thursday being the long-established day of the week in which the prime minister visits the president to inform him on different issues. More than a formality and a gesture of goodwill, keeping the president informed “of all issues pertaining to the conduction of internal and external policies” is a constitutional provision (CRP section 201c). On top of that, the law on the intelligence services requires that the prime minister keep the president informed of major developments. Cavaco Silva would later recall that the prime minister had failed to inform him of the dealings with the EU in preparation for a package of austerity measures in 2011 as a “gross misconduct in institutional solidarity” which he castigated several times. Besides, as it will emerge further down, these meetings allow the president to react to the information received and enter a true bargaining process with the prime minister (something he cannot do directly with parliament). As a result, Cavaco Silva estimated that about one third of all legislation received from the government were amended at his request. Thursday meetings are an epitome to the power-sharing nature of Portuguese semipresidentialism

Of course, Cavaco Silva insists that his exercise of accountability towards the Portuguese is limited by the “secrecy imposed by the safeguard of the highest national interests”, and thus one cannot expect to have full disclosure of every episode that hit the news. However, Cavaco Silva is quite generous in opening up the drawers of his memory. Many references in the press to the facts disclosed in these volumes refer to la petite histoire, episodes that are controversial and still stir the popular imagination and feed gossiping, but on the whole are perhaps not the most interesting way to address the issue of presidential powers and how they were exercised by one particular individual.

The background to the volumes covering the presidency is given by the ten years in which Cavaco Silva was prime minister, which formatted most of his understanding of both presidential and governmental powers. As he says, implicitly criticizing the president with whom he worked as prime minister (Mário Soares), “my time as prime minister was one of fruitful learning about what a president of the Republic should not do”.  Perhaps the most evident sign of a particular reading of presidential powers is referred in the second volume of his Autobiografia Politicawhen he recalls having said this: “To those who spend their time in political manoeuvring and creating obstacles to the government, we say: let us work”. Together with his repeated references to the “forces of blockade”, these words were widely read as a reassessment of the government’s independence from all other organs of sovereignty, be they the Constitutional Court (which had raised several objections to his policies) or – above all – the president of the Republic. It was thus expectable that Cavaco Silva as president would not venture in terrains he had so bitterly criticized while serving as prime minister, and adopt a low profile as president. This was though a difficult task to perform.

The title of his presidential memoirs include the expression “and other days”, which refer to the scope of presidential initiatives that do not depend on the relation with the prime minister.

In the first of these volumes, the “other days” are present in a section he entitled “To Believe in the Portuguese”. He justifies this section by stating: “I defined as one of the goals of my presidency to give voice to good examples” in areas as disparate as science and education, culture and historical heritage, economy and information technologies, Portuguese communities abroad and youth, social inclusion and social institutions, the sea and fisheries, etc. This is not a small realm of intervention. Claiming he always “wanted to be part of the solution and not the problem” (and I would add, active part), he summoned members of government to accompany him and expressed publicly his views on the issues that surfaced in those initiatives. Presidential initiatives do have high media coverage, and this is a form of setting the political agenda inaugurated (against an angry Cavaco Silva) by Mário Soares with his “open presidencies” and to offer presidents ample room to intervene in the process of decision making. In the end of the day “all my initiatives were very welcome by the population, by the institutions and by all those who were involved in them”. Popularity is thus a critical element to gauge the effectiveness of presidential initiatives. In the second volume, the “other days” are mostly dedicated to the “projection of the interests of Portugal in the world”, assuming those to be framed by the concept of “presidential diplomacy” – an equivocal concept that does not derive from the constitutional powers of the president which, in matters of foreign affairs, are reasonably contained (CRP section 135). However, Cavaco Silva considered this to be one of the areas in which his voice could be heard, and independent initiatives taken, so much so that “during my terms in office a reinforcement was felt of the role of the president of the Republic in the realm of foreign affairs”. One of the reasons for this resides in the fact that, as Supreme Commander of the Armed Forces, the president was involved in the deployment of Portuguese soldiers in several UN or NATO sponsored missions throughout the world. It is certainly an aspect that gained roots and is not openly challenged by any major political actor, and which evokes the French case of presidents assuming prominent roles in foreign relations and defence policies. It is interesting to note that at various points in his books, Cavaco Silva mentions several  formal direct meetings with the ministers of foreign affairs and defence, whereas in the case of most other ministers his relations were mediated by the prime minister.

The two volumes combined cover Cavaco Silva’s two mandates and refer to four different governments. When he took office in March 2006, the country had a majority socialist government headed by José Socrates. As is usual in Portugal, the prime minister did not tender his resignation nor did he put his job at the president’s disposal. The understanding is that the parliamentary responsibility of the government was assured, and thus the new president had to live with the existing government – or be determined to take action. It is useful to recall that Cavaco Silva had been the leader of PSD, and when that memory was still fresh he had lost the 1996 presidential election; seeking the presidency in 2006 was based on the affirmation of a clear distance between the candidate and the right of centre parties that supported him, assuming the traditional role of the president as an “independent” figure that should not guide his action by party motivation. Not surprising, Cavaco Silva promised during the campaign he would offer any government “strategic cooperation”.

The narrative of the period 2006-2009 is one of a deteriorating relation with the prime minister, which started on a high note and ended in one of the most sour episodes just before the legislative elections of that year (what he recalls as “the political intrigues of the summer of 2009”). Maybe the highest point of conflict was around a government proposal to change the statute of the Autonomous Region of Azores (unanimously approved in the regional parliament) which Cavaco Silva felt as an attempt to reduce his constitutional powers, which was a theme for discussion for about eight months before Caavaco Silva felt compelled to address the nation. The action of the president, however, was much broader, and included initiatives to reformulate the project for a new airport in Lisboa, a discussion of the high-speed train project, or the decision to recognize the independence of Kosovo (this one was present in sixteen of the weekly meetings with the prime minister), to quote just a few with heavy consequences. In most instances, the president managed to negotiate with the government the final outcome of public policies. Cavaco Silva does not shy away from criticizing by name some ministers, either because one had “little common sense” or another was prone “to speak out too much” – but in no circumstance did he go beyond asking the prime minister “to take adequate action”. If the suggestion was obvious that he would have welcome a change of minister, he stopped short of declaring he had lost political confidence or that the issue threatened the survival of the government.

Elections were held during his first term, and the socialist party won again, although it lost the absolute majority – a situation that, in principle, enlarges the scope of presidential intervention. A minority government was formed that had the difficult task to respond to the crisis that erupted in 2008 and was fast approaching Portugal. The distance and acrimony between Cavaco Silva and José Socrates was now public and evident. In the fall of 2010, when the budget was being prepared, Cavaco Silva realized “the prime minister has been lying to me about the deficit for this year”. The hypothesis of a political crisis was on the table. Still, he decided to use his goodwill to help negotiate a new budget that could be supported both by the minority socialist government and the PSD, the largest opposition party. He suggested one of his closest friends and sometime minister for finance to broker the deal. The deal was made under the auspices of the president.

The second term began with a very critical speech, which had a direct impact on the fall of the minority government a few weeks later. Fresh elections were called, as no solution was viable within the existing parliament. The right wing parties PSD and CDS obtained a majority and formed a post-electoral coalition. An old dream of PSD founder Francisco Sá Carneiro – “a majority, a government, a president” – was now possible (despite continuous claims that the president was “above the party fray”). Eventually, this became a nightmare for Cavaco Silva: for all major purposes, the leader of the majority was the prime minister, not the president. Cavaco as a university professor of public finance had his own views and claimed “I do not harbour doubts and I seldom make a mistake”; the prime minister, who had never had any job in government, and who had a poor formation on economics and finance matters, had to carve a balanced relation in which the weight of government far out weighted that of the president. In some instances, Cavaco Silva came to the rescue of government, as in the case of the huge popular demonstrations against one specific fiscal policy in September 2012, prompting a change of course. Some others, he criticized the government, as in the New Year speech of 2013 in which he raised fears of a “vicious circle of depression” – although he could not elicit any change of policy from the government. Even if many legislative pieces raised issues of constitutional conformity, Cavaco Silva most often decided to sign the bills and ask for the opinion of the Constitutional Court afterwards, thus facilitating the government’s policy, even with the cost of his own reputation (he stepped out of office in March 2016 with the lowest ever popularity rate: -13%, whereas the normal popularity rate for presidents is in excess of 50%).

The final episode of Cavaco Silva’s term in office took place after the legislative elections of October 2015. The right wing coalition won the election with a plurality of the vote; but the left parties soon declared they would oppose their continuation in office. Cavaco Silva disregarded the composition of parliament and installed the former prime minister again in his post, having decided to address the nation on the media to justify his option. However, parliamentary investiture is needed. It can come out of a vote of confidence presented by the government, or by a motion rejecting the government’s program tabled by the opposition. The rejection motion was approved by a large majority, and Passos Coelho’s executive fell. The president could not, in constitutional terms, dissolve the parliament and call fresh elections due to a double principle: presidents cannot dissolve parliaments in the last six months of their term in office, and parliaments cannot be dissolved in the first six months after an election. Cavaco would have three choices: to keep Passos Coelho as a caretaker government, with limited capacities, namely unable to propose a new budget, until the six months had elapsed and his successor could call fresh elections; to try what had been used back in the 1970’s – a government of independents regarded as “government of presidential initiative” – which raised constitutional doubts but not an outright impossibility, as recent examples in Greece and Italy suggest; or to appoint the leader of the largest left wing party, the socialist Antonio Costa, to form his government. He chose the latter solution, after lengthy consultations with several actors of the political arena and civil society, although he considered “It is difficult to believe that one government that depends on political forces that are against the EU, NATO and multilateralism in international trade can become a coherent, credible, stable, and efficient government”. For this reason, Cavaco Silva sent a memo to the socialist leader asking for “the clarification of several questions” and for “guarantees as to the stability, credibility and long-term perspectives” of the proposed new government (i.e., written documents signed by all parties involved in the new majority). When he finally accepted to swear in António Costa, he made a very critical speech in which he set boundaries to the policies the government was allowed to pursue, suggesting the government would be subject to constant presidential monitoring not so much in its institutional capacity, but truly in a sense that comprised political choices.

The question that remains after this episode in which the president is vehemently opposed to the political solution he had to empower, is this: would Cavaco Silva have behaved differently if he was not in the final six months of his term with his powers limited? Would he have behaved differently in there was not a question of the need of a new budget? Would he have behaved differently if he was in his first term with aspirations to be re-elected? All those circumstances must have weighted in the very peculiar situation in which presidents have their powers curtailed. If in full capacity, what would have been the outcome? It must be borne in mind that this example shows that disposing of a parliamentary majority is a facilitating condition for a government to emerge – and then to subsist – but its emergence must pass through a presidential decision – and the president may decide to try his luck if he dislikes the parliamentary majority. Cavaco Silva’s memoirs tell us a dramatic story which shows that there is room for interpretation of the presidential powers regarding the formation of a new government.

A few other comments can now be made. Some authors have referred to the existence of “weak powers” of the president, including under this heading the competence to appoint several public officers under governmental proposals. Cavaco Silva’s memoirs are very illuminating in this particular, as he had to deal with two appointments to the post of Prosecutor General and several top military ones. What emerges from his writings is a that a “methodology” exists – which was certainly present in other similar instances – by virtue of which the president and the prime minister agree to exchange views prior to a formal  governmental initiative (that is, before the constitutional prescriptions come into being), which in most cases consists of a proposal of up to three names from which the president can choose (or indeed reject). His descriptions of the processes leading up to the appointment of two Prosecutors General under different prime ministers shows that the principle is established and warrants presidents more than ceremonial roles, disposing of substantive capacity to influence the choice of top civil servants. The conclusion that emerges from these pages is certainly not one of “weak power”.

The last comment refers to the very last chapter of the second volume in which Cavaco Silva reflects on presidential powers. Arguing that he finds the constitutional powers to be well balanced with the fact that presidents are elected by universal suffrage, he nevertheless ventures to suggest six points that parliamentarians might take in consideration in future revisions of the constitution. Most of those points reinforce slightly the competences of the president without disturbing the overall distribution of powers, as would be the case if the president was given the power to appoint some members of the Constitutional Court or to enlarge the time limit for presidents to send legislation to that court in order to establish its conformity with the constitution, or even the power to appoint the governor of the Bank of Portugal upon a governmental proposal, and following a period of parliamentary vetting . One of Cavaco Silva’s suggestions, however, would significantly enhance presidential powers: he proposes that every legal diploma vetoed by the president should require a 2/3 majority in parliament to be overturned – a situation that occurs in a limited number of cases, and would, if extended, enlarge presidential powers and create a severe limitation to any parliamentary majority.

A final word on what appears to be a paradox. Cavaco Silva states time and again that presidential powers are adequate. On the other hand, he rejects any personal responsibility in the deterioration of the financial situation that took place after the onset of the global crisis of 2008-2009. Commenting on his very aggressive speech against the government in the inauguration of his second term (2011), he claims: “It was indeed a very incisive speech, growing out of my knowledge that the economic, social and financial situation of the country was very serious, and that there were errors in the economic policy of the government, which prime minister José Socrates resisted to change, despite my multiple warnings, both on the meetings that took place on Thursdays, and through the alerts I issued in several public interventions”. How can one be content with an array of competences that does not prevent the development and deepening of a very serious crisis in the country? Or is it the case that Cavaco Silva did not use all the presidential competences to guarantee the regular functioning of institutions beyond a mere formal analysis? Was he a prisoner of a parliamentarian understanding of the distribution of powers that the Portuguese Constitution attributes to the main political actors, neglecting the array of competences he had at his disposal? In the end, he contributed to bring down the minority government of Jose Socrates in 2011 not by taking any decisive action, but merely by speaking out his criticism that was welcome by all opposition parties which filed a non-confidence motion in parliament. The president watched this move in the comfort of Palácio de Belém,not intervening through a dissolution of parliament, the dismissal of the prime minister, nor even by sending a formal message to the parliament  . He simply used his public word – alas, quite a bit late.

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