Presidents in Semi-Presidential Regimes: Moderating Power in Portugal and Timor-Leste [1st ed.] 9783030531799, 9783030531805

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PALGRAVE STUDIES IN PRESIDENTIAL POLITICS SERIES EDITORS: ROBERT ELGIE · GIANLUCA PASSARELLI

Presidents in Semi-Presidential Regimes Moderating Power in Portugal and Timor-Leste Rui Graça Feijó

Palgrave Studies in Presidential Politics

Series Editors Robert Elgie School of Law & Government Dublin City University Dublin, Ireland Gianluca Passarelli Sapienza University of Rome Rome, Italy

Palgrave Studies in Presidential Politics publishes books on all aspects of presidential politics. We welcome proposals for monographs, edited volumes and Pivots on topics such as: • • • • • •

Contemporary presidencies and presidential powers Presidential elections and presidential party politics Presidential relations with the legislature The media and presidential communication The administrative presidency and presidential advisers The history of presidential offices and presidential biographies

The series focuses on presidents throughout the world, including both directly elected and indirectly elected presidents, both single-country and comparative studies of presidential politics. It also includes volumes on conceptual or theoretical aspects, such as how to measure presidential power. Moreover, the series considers book projects on the reform of presidential politics, e.g. the reform of presidential elections. For further information on the series and to submit a proposal for consideration, please get in touch with: • Commissioning Editor Ambra Finotello [email protected] • Series Editors Robert Elgie [email protected], and Gianluca Passarelli [email protected]

More information about this series at http://www.palgrave.com/gp/series/15600

Rui Graça Feijó

Presidents in Semi-Presidential Regimes Moderating Power in Portugal and Timor-Leste

Rui Graça Feijó CES—Centre for Social Studies University of Coimbra Coimbra, Portugal IHC—Institute for Contemporary History NOVA University of Lisbon Lisbon, Portugal

Palgrave Studies in Presidential Politics ISBN 978-3-030-53179-9 ISBN 978-3-030-53180-5 (eBook) https://doi.org/10.1007/978-3-030-53180-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: styf22/iStock/Getty Images Plus This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To Mariana my little bird

Acknowledgements

In its early stages, the research embodied in this volume contributed the fundamental basis for an academic exam that granted me the title of Agregado (Habilitation) at the University of Coimbra (2017). I was encouraged to apply for this exam as a freelancer, not as a regular academic, as I was at the time, by José Reis, by then the Director of the Faculty of Economics. He told me I was the third person in a similar situation to approach him, and he had given the green light to all of them; later he confided he had withheld a precious information: the previous two had given up, never coming to the exam. José Reis opened the doors for my determination to reach the highest platform that a Portuguese scholar can have at home, and I gladly share my success with him. The members of the jury at Coimbra, namely José Manuel Pureza, Pedro Tavares de Almeida and above all António Costa Pinto made relevant comments that helped me develop my early ideas. As the famous Oxford don told the young student that went up to him for guidance and wisdom, “You see my boy, it always takes longer”—and this time it certainly did. The earlier text was the basis for a prolonged exchange with the late and dearly missed Robert Elgie. These were tough times, and the first draft of this book was back into the drawer for hibernation. When I had the courage to try again to make sense of my ideas in such a way that Robert and Gianluca Passarelli could accept, Robert was sadly gone. I owe him a heartfelt “Thank you”, hoping he would have appreciated the new version which was discussed with Gianluca. We developed a kind relation verging on

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ACKNOWLEDGEMENTS

friendship, which in the case of an Italian and a Portuguese is not hard to happen. I gladly include Gianluca among those I feel this book owes its strength. Its weaknesses, of course, remain my full responsibility. The preparation of that exam was partially done in Oxford, where I was a Visiting Scholar at Nuffield College, thanks to the generosity of Laurence Whitehead. He and Nancy Bermeo provided good guidance and lively debates. The late and dearly missed David Goldey was a constant source of enthusiasm and good advice; the late Hermínio Martins was always around then, and his encyclopaedic knowledge of things related to Portugal never stopped to come into our conversations. Institutional funds were made available for part of the research that ultimately appears in this book. From 2011 to 2017 I benefitted from a Post-doctoral research grant provided by FCT, the Portuguese Foundation for Science and Technology (FCT SFRH/BPD/71238/2010 for the Project The Birth of a Democratic Nation—Timor-Leste 1999–2012). My work was also supported, both in Lisbon and Dili, by the Orient Foundation. I wish to thank Dr. João Amorim and Dra Isabel Carvalho, in Lisbon. In the Dili delegation, Senhora Clotilde Quintão, Senhora Graça Viegas and more recently Dra Sónia Fonseca made my life all the more pleasurable. Both institutes I am affiliated with provided facilities for this work. In Coimbra, I extend my heartfelt recognition to the Director Emeritus Boaventura de Sousa Santos, to Giovanni Allegretti (the soul of the doctoral programme on Democracy in the twenty-fisrt century), João Paulo Dias, João Neto and Acácio Machado on behalf of all the staff of the North/South Library. At the Institute for Contemporary History, all my gratitude goes to the Director, Pedro Aires Oliveira, a man of rare virtue. The last stages of preparation of this manuscript were the time of the Covid-19 pandemic, and they were lived in confinement in Moledo. Susana provided relentless companionship and made these days easier to live. Needless to say, I assume full responsibility for the many imperfections I could not master.

Praise for Presidents in Semi-Presidential Regimes

“Presidents in Semi-Presidential Regimes is an outstanding work of great analytical clarity. Written in an engaging and economical style, Rui Graça Feijó’s comparative exploration of presidential power shines new light on the historical evolution of these two political systems, and is essential to understanding recent political developments in both countries. Deserving of a wider audience beyond the scholarly communities of Portugal and Timor-Leste, it offers compelling insight into the semi-presidential system of government, and the distinctive and evolving role of directly-elected presidents within them.” —Michael Leach, Professor of Politics and International Relations, Swinburne University of Technology, Melbourne, Australia

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About This Book

This book offers a comparative perspective on the semi-presidential regimes of Portugal and Timor-Leste, suggesting that they both reserve for presidents a “moderating power” in line with what was theorized by Benjamin Constant. Historical legacies, political culture and short-term political considerations combined to produce an institutional design that has endured and produced incentives to power-sharing and inclusiveness. A critical element of this model finds roots in the electoral system that facilitates the emergence of “independent” presidents with political platforms that tend to supersede those of political parties. Elected presidents dispose of an array of competences that do not overlap with those of prime ministers, but represent a category of its own. The vast array of presidential competences contributes to reinforcing a system of checks and balances, and to foster horizontal accountability. The specific government form with “moderating powers” and presidents who are largely “independent” from the party system contributed to the successful democratic transitions of Portugal and Timor-Leste.

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Contents

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2

Introduction: Presidential Republics with “Moderating Power”

1

The Emergence of Presidential Republics in Portugal and Timor-Leste

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3

Electing Presidents with “Moderating Power”

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4

What Do Presidents Do with “Moderating Power”?

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5

“Moderating Power” and Partisan Presidents: Two Empirical Cases

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The “Moderating Power” of Presidents: Rex regnat sed non gubernat

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Index

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About the Author

Rui Graça Feijó (D.Phil. Oxford 1984). Research Fellow at the Centre for Social Studies (University of Coimbra) and Associate Researcher at the Institute for Contemporary History (Nova University of Lisboa). UN advisor to the presidency of Timor-Leste (2005–2006). Published Dynamics of Democracy in Timor-Leste. The Birth of a Democratic Nation (AUP 2016) and Democracia: Linhagens e Configurações de um Conceito Impuro (Afrontamento 2017).

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Abbreviations and Acronyms

ASDT BE CDS CNRT CNRT

CRDTL CRP EU FRETILIN KHUNTO MFA PCP PD PLP

Associação Social-Democratica de Timor-Leste/TimorLeste’s Social Democratic Association [TL] Bloco de Esquerda/Left Bloc [PT] Centro Democrático-Social /Democratic and Social Centre Party [PT] Conselho Nacional da Resistência Timorense/National Council of the Timorese Resistance [TL] Congresso Nacional de Reconstrução de Timor-Leste/ National Congress for the Reconstruction of Timor-Leste [TL] Constituição da República Democrática de Timor-Leste/ Constitution of the Democratic Republic of Timor-Leste Constituição da República Portuguesa/Constitution of the Portuguese Republic European Union Frente Revolucionária de Timor-Leste Independente/ Revolutionary Front for an Independent Timor-Leste [TL] Kmanek Haburas Unidade Nacional Timor Oan/Enrich the National Unity of the Sons of Timor [TL] Movimento das Forças Armadas /Armed Forces Movement [PT] Partido Comunista Português /Portuguese Communist Party [PT] Partido Democrático/Democratic Party [TL] Partido da Libertação do Povo/People’s Liberation Party [TL] xvii

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ABBREVIATIONS AND ACRONYMS

PM PR PRD PS PSD or PPD/PSD PSD STV UDP UN

Prime Minister President of the Republic Partido Renovador Democratico/Party for Democratic Renewal [PT] Partido Socialista/Socialist Party [PT] Partido Popular Democrata-Partido Social Democrata/ Popular Democratic Party—Social Democratic Party [PT] Partido Social-Democrata/Social democratic Party [TL] Single Transferable Vote União Democrática Popular/Popular Democratic Union [PT] United Nations

List of Tables

Table 3.1 Table 3.2 Table 4.1 Table 5.1 Table 5.2

Electoral participation Portugal 1975–2019 Electoral participation Timor-Leste 2001–2018 Main powers of presidents according to the constitutions and the established practices in both countries Presidents and Governments in Portugal 1976–2020 Presidents and Governments in Timor-Leste 2002–2020

57 58 123 131 133

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CHAPTER 1

Introduction: Presidential Republics with “Moderating Power”

Abstract This chapter introduces the book’s purpose: to discuss the emergence and performance of semi-presidential regimes with “moderating powers” vested in their presidents, and their contribution to democratic transitions and consolidation. The intellectual origins of “moderating power” are traced to Benjamin Constant, and the suggestion for its use in modern times to the work of Maurice Duverger. A justification for the choice of Portugal—a pioneer in the choice of semi-presidentialism in the Third Wave of Democratization—and TimorLeste—a country that once was a Portuguese colony which emerged as an independent nation in the beginning of the twenty-first century—is presented, based on a discussion of the “diffusion model” of Lusophone constitutionalism. The chapter concludes with theoretical and methodological considerations that underpin this empirical study. Keywords Presidential republics · Semi-presidentialism · Moderating power · Benjamin Constant · Maurice Duverger · Portugal · Timor-Leste

© The Author(s) 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5_1

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Modern Democratic Republics and Their Variation Modern democratic republics all share the fact that their head of state is an elected president. As Jean Blondel has argued, “a little over two hundred years ago, in Philadelphia, an entirely new instrument of political leadership was invented: the leadership of a national president” (2015: viii). Henceforth, presidents play a critical role in the political landscape as they are bestowed with “universal visibility” which helps those regimes in their quest for legitimacy (Blondel 2015: 9). It is therefore justified to devote analytical efforts to elucidate the role discharged by presidents in the more than 130 countries which are, in one form or another, examples of “presidential republics”. Even though political regimes are more complex than the single issue of presidents, and require that relations between presidents and other actors be considered, singling out presidents as an analytical focus offers a privileged window through which to engage the intricacies of actual political models. Also, the requisite of democracy is relevant. Not all presidential republics are democratic polities, and those that fall outside this classification present specific problems that will not be addressed in this volume.1 The status, functions, competences and powers of presidents vary enormously. Political scientists have devoted much effort to analysing this diversity, and attempting to categorize its main features by means of creating clusters around which some theoretical models gain substance. “No categorization is more influential than the tripartite distinction between presidentialism, parliamentarism and semi-presidentialism” (Cheibub et al. 2013: 2). 1 It is important to distinguish between democratic and non-democratic polities. Although the government system can be derived from constitutional provisions, a full appreciation of the workings of any system is political (Bogdanor 1987) and must not elude the fact that some constitutions are only partially implemented as they can to some extent present a façade for different ways of organizing actual political power. In fact, they can be de jure semi-presidential (or presidential or parliamentary) but de facto authoritarian or dictatorial (Martinez 1998: 4). Yu-Shan Wu supports the need to “differentiate between semi-presidential democracies and non-democratic nations that have prima facie semi-presidential constitutional structures” because “constitutional stipulations would have limited, if any, effect in the latter” (Wu 2011: 39). Duverger has made a point of stressing that this is a crucial distinction (Duverger 1992: 901), even if a given form of governance may be useful in processes of transition from authoritarianism to democracy and may be initiated before democracy is fully established. This question is addressed, among others, by François Frison-Roche with reference to Eastern Europe (Frison-Roche 2005). In this essay, all the analyses suppose the existence of a democratic polity.

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Presidentialism emerged with the independence of the USA and the promulgation of its constitution in 1789. It prescribes that presidents head the executive power. They are elected by popular vote for a fixed term in parallel to the term of the Congress vested with legislative powers. Both executive and legislative powers are independent of each other and discharge their mandates separately. The USA is the prototypical presidentialist example, which is widely emulated in Latin America. Parliamentarian republics all have their presidents indirectly elected by the legislative chambers or by specially convened assemblies of officers whose legitimacy derives from the polls. This is the case of the German Federal Republic or Italy. Presidents do not normally exercise executive power, which is entrusted to a prime minister or chancellor responsible before the legislative branch. The legislative branch is the central element of the political system. Historically, several countries who adopted this system had previous experiences with liberal, constitutional monarchies, replacing the hereditary head of state by an elected ruler whose powers are predominantly ceremonial. It was the case, among others, of the French Third Republic (1870–1940) or the Portuguese First Republic (1910– 1926). Semi-presidentialism is a latecomer to the realm of democratic republics, emerging in Europe after the end of World War I (Germany’s Weimar Republic is regarded among the first examples alongside Finland). It is now generally considered that this political system exists “where there is a directly elected (or popularly elected) fixed-term president and a prime minister and cabinet who are collectively responsible to the legislature” which is also elected by direct polling (Elgie 2011: 22). However, the precise definition of semi-presidentialism was long a contentious issue. Maurice Duverger was a pioneer in proposing the novel concept in the 1970s (Duverger 1978). In a seminal article published in English in 1980 he suggested that two objective criteria—the independent elections of the president and the parliament, and the dependence of the prime minister on the legislative—be accompanied by a third, subjective element: the powers of the president should be “considerable” (Duverger 1980). The inclusion of a highly subjective element made it difficult to operationalize the concept for the purposes of comparative politics. When Robert Elgie proposed that the definition be reduced to the two core, objective elements—a move widely accepted among his peers—the question of presidential powers did not evaporate: it returned in the form of sub-types of the semi-presidential system. Semi-presidentialism is thus a

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broad umbrella under which a variety of political solutions for the question of presidential powers and the relationships between presidents and prime ministers are possible. Elgie’s proposal permitted the reconsideration of Shugart and Carey’s model (1992), admitting that premier-presidentialism and presidentparliamentarism are two possible faces of the same general system. Under the initial vision of its authors, this was not clearly the case, as shown by Elgie in his “intelectual history” of these concepts (2020). However, advances in political science since the early 1990s have been considerable, and “[t]his is now the state of the art when it comes to identifying semipresidential regimes” (Elgie 2020: 17). Although this distinction has met considerable applause, many scholars have ventured to propose a variety of other possibilities, many of which based on empirical features of extant regimes (e.g. Novais 2007, 2010), and discuss the variability that can be found under the global umbrella. Among them, Maurice Duverger once again made important suggestions. Considering that in France the party system is organized around presidential candidates (Duverger 1996: 510)—a feature that is by no means a rule in other countries—Duverger admits that under semi-presidentialism there may occur one of three situations: (i) the president is the leader of the parliamentary majority; (ii) the president is the leader of the parliamentary opposition to the prime minister, generating a specific form of divided government that, in the case of semi-presidentialism, has been termed “cohabitation”; or (iii) the president “has no partisan majority” (Duverger 1996: 515–517).2 The third possibility is compatible with what has been known as “independent presidents” who are present in several countries, and has important consequences for the ways in which the system operates. In another piece seldom quoted, Duverger

2 Note that Duverger assumed that in the two former situations the president is a partisan leader. This is not a detail, and bears proper consideration. Having in mind Passarelli’s considerations on “presidential parties” and their variability (2019), this issue will be discussed in Chapters 2, 4, 5. The main thrust of the argumente put forward in this book is that apart from non-partisan presidents, literally speaking, some presidents in Portugal and Timor-Leste have come from party ranks but not as “the most eminent politician of the party” (Passarelli 2019: 6). This is critical to understand the complexity of their relations with the world of political parties in general, and with their own political family in particular. For this reason, following Jalali and Fernandes (2017) I prefer to use the expression “political congruency” to refer to the common belonging to a broad political family.

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suggests that the role of presidents may, in some instances, be framed by the notion of “moderating power that Benjamin Constant attributed to constitutional monarchs” (Duverger 1992: 903). It seems possible to reconcile these two important ideas, and consider the possibility that under semi-presidentialism a cluster of cases may be formed around the idea of presidents entrusted with “moderating power” discharging their functions with a significant degree of independence towards parliamentary party politics. This book takes as its grounding hypothesis the idea that the realm of presidents may be distinct from the intervention of political parties in parliamentary life, and that presidents need not be associated with executive power when an alternative model can be put forward to render the specificity of their status. Duverger’s ideas will be put to the test using the empirical cases of Portugal and Timor-Leste. Before justifying the choice of these two countries, this introduction will now offer a brief discussion of Constant’s concept of “moderating power”.

Retrieving Old Ideas: Benjamin Constant and the Notion of “Moderating Power” Benjamin Constant was a Swiss-born French politician, philosopher and novelist. He is currently regarded as a major figure in the birth of French liberalism, prolific in the years between the end of the Ancien Régime and the 1830 Revolution (Holmes 1984). His political philosophy has been envisaged as “a synthesis and a transformation of the two deepest reflections of the French 18th century, those of Montesquieu and Rousseau”. (Todorov 1997: 31). Outstanding for our purposes is his critique of Montesquieu theory of the separation of powers, which he believed was insufficient to meet the needs of a modern state. Whereas Montesquieu distinguished the three classical branches of government, Constant added what he termed “pouvoir preservateur”, “pouvoir moderateur” or “pouvoir neutre”. His most comprehensive treatment of the subject appeared in his Réflections sur les Constitutions of 1814 where he explained: The three political powers, as they have been known so far, are three branches that must cooperate, each one in a distinctive manner, to the general movement. But when these branches cross paths, and produce shocks or try to break one another, a force is required that returns them to their rightful places. This force cannot issue from any one of those

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branches, because that would allow it to destroy the others. This force must be external to the three, and must be neutral in a way, so that its action can be applied wherever it is deemed necessary, and it can retain a status as a preserving and repairing force without being hostile to any other. (2005 [1814]: 1077–1078)

Constant was concerned with the protection of civil rights as well as with the actual balance of power, and was impressed by the experiences of the French Revolution in its attempts at securing institutional translation of Montesquieu’s principles, which had turned sour. The fourth branch of power “was to protect citizens against any abuse of power by the other branches of government, and to prevent either the executive or the legislative branch from being tyrannical vis-à-vis the other”, and was inspired by reading Voltaire’s appraisals of the English monarchy (Vincent 2011: 116; Holmes 1984: 144). Constantly worried that the three pure branches of power would not find an equilibrium if not supported by some institution designed at securing that goal. This preoccupation seems to echo a similar concern expressed by Adam Smith who is best remembered for his defence of the virtues of the “invisible hand” in securing equilibrium in free markets. However, a famous passage of his Wealth of Nations reckons that there are “three duties of the sovereign” if a market economy is to deliver equilibrium (Book V, Chapter 1). In other words: free-market economies, contrary to readings that emphasize their adaptation to “human nature” and presume they would be found in many historical situations, depend on sophisticated, developed state institutions, as Karl Polanyi has convincingly shown (1944). Only this “visible hand of the sovereign” guarantees that the market operates at optimal levels. It is not difficult to see a parallel between both approaches. In fact, both presume that there are forces that, if left to act freely in a well designed institutional environment, will produce balanced, optimal outcomes. However, both posit that institutional conditions need to be present that both guarantee such freedom and are capable of interventions to prevent or correct deviations. For our practical purposes, the critical aspect of Constant’s proposal was the attribution of a distinctive function to the head of state—that of upholding an important feature of modern constitutional order: procedural impartiality. This was to be clearly separated from the executive branch. “The principal distinction that Constant drew was between the executive power of ministers and the royal power

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of the crown, something he defined as a ‘neutral power’, or ‘the judiciary power of other powers’” (Dodge 1980: 82). The head of state in a regime upholding the principles of separation of powers would thus have a positive function, not merely a symbolic role nor one that could be confused with executive power. In modern terminology, these powers vested in the monarch would increase horizontal accountability by virtue of adding one other element to Montesquieu’s system of checks and balances. This is the analytical point that renders Constant’s proposal timely. Constant did have some practical impact. Portuguese Prince Pedro (1798–1834) read Constant in his training years (Guedes 2000). After proclaiming the Independence of Brazil (7 September 1822) and becoming Emperor of the new South American state, he granted the new country a Constitution that embodied the French philosopher’s ideas about the organization of political power, assuming for the monarch the “moderating power”. In his role as king of Portugal (1826–1834) in 1826 Pedro IV granted his original country a Constitutional Charter inspired by the Brazilian one, which also contemplated the existence of the “moderating power” (Sardica 2012). The Portuguese Constitutional Charter was the country’s fundamental law for most of the period up to the proclamation of the Republic in October 1910. This fact should not be overlooked as we know that Portugal adopted a semi-presidential constitution right at the beginning of the “third wave of democracy”, when this model became increasingly popular but had few examples to copy. Among the sources of the new constitution, one counts those of the monarchy from 1822 onwards—and especially the Constitutional Charter of 1826 (Miranda 1978). The idea of a fourth branch of power in line with Constant’s proposal might be old wine, but the circumstances provided it with new bottles.3 Chapter 2 expands on this issue. The origins of “moderating power” in constitutional monarchies has been accepted by modern politicians and commentators. Portuguese president Mário Soares (1924–2017, in office 1986–1996) used this idea in his reflections on the nature of the power invested upon himself (quoted in Queirós 2007: 159). This comparison with monarchies could

3 I am not inferring that military intervention, like so many in Latin America that were made under the invocation of their “moderating power” (Linz 1994: 54) bears any similarity with the Portuguese case. The nature of “moderating power” in a democracy is certainly significantly different from whatever it may mean in autocratic regimes that do not abide by the basic principles of the separation of powers.

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be further sustained by a reference to the notion of political culture and the “implicit monarchist tradition that is present in the question of semipresidentialism in Portugal”, as argued by José Medeiros Ferreira (2005: 72), following on Luís Salgado de Matos, who sees Portuguese presidents as “heirs to the monarchy’s chief of state” (1983: 238). On a different dimension, Gianluca Passarelli (2008) reflects on the dynamics of presidencies in France and Portugal, entitling his book “Elective Monarchs?”4 The idea of a fourth power in the political equilibrium system is appealing. However, it requires a discussion of what it may actually mean in modern republics, and what counter-distinguishes it from executive power. We shall return to this issue in Chapter 3

Why Portugal and Timor-Leste? Portugal and Timor-Leste are two vastly different countries in their history, environment, size, population, wealth, level of human development, regional political context and a myriad of other aspects. They have not obviously been chosen as empirical case studies for the similarity of their respective positions in world politics, nor to imply that conclusions of this study grounded on cases that stand at opposing ends of a scale could then easily be generalized to any political situation. Yet, there are some points that bring those two countries closer than it could be grasped at first glance, and thus grant foundations to a comparative study broadly defined. For the best of five centuries, Portugal entertained relations with the island of Timor, beginning with the presence of Catholic missionaries followed in the early eighteenth century by a military presence that would evolve into a “modern” form of colonialism at the turn of the twentieth century (Gunn 1999; Matos 1974; Figueiredo 2011). In April 25, 1974, when the Carnation Revolution broke out in Portugal paving the way for the recognition of the right to self-determination of its colonies, Timor was a much neglected, distant territory that had survived the collapse

4 Canotilho and Moreira (1991: 32–33) noted that Carl Schmitt (1888–1985) considered that the president under the Republic of Weimar was vested with a “neutral power”—a positive power yet different from any of the three classical ones. If one recalls that the Republic of Weimar is supposed to have been the first instance of a semi-presidential regime, the argument seems to combine well with Duverger’s.

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of the Portuguese Empire in Asia, benefitting very little from the European “civilizing mission” (Feijó 2016b). As a colonial administrator put it, Timor was a case of “colonialism without colonizers” (Corrêa 1944: 15), and thus the influence of the Portuguese was feeble. The demise of Portuguese colonialism would nevertheless turn sour for Timor, as the territory was invaded in late 1975 and then subject to brutal occupation by Indonesian forces. However, Portugal kept for the following quarter of a century its status of “administrative power of a non-autonomous territory” and stood by the Timorese who resisted an occupation that was never accepted by international law, forging strong links with the suffering people and its elite. It will come as no surprise if the relations between the new independent country and its former colonizers revealed the imprints of the past, now recast in a new light. Political forms were among the Portuguese historical legacy to the new nation (Feijó 2010). Portugal adopted a democratic constitution in 1976 (revised in 1982) that created a semi-presidential government system at a time when this government system had few examples. Even if the nineteenth-century novelist and polemicist Eça de Queirós signalled that modernity in Portugal used to come on board the Sud-Express train from Paris, it was not so much the alignment with the novel French institutions of the Fifth Republic that shaped the Portuguese regime, but rather the need to accommodate several elements of the national political culture and to respond to the conditionalities of the transitional period—as we shall see in detail in Chapter 2. “Contagion” (Whitehead 2001) does not seem to have been at play, as the two countries that initiated democratic transitions at roughly the same time—Greece in August 1974, Spain in 1976—followed classical parliamentary models. In Europe, it would not be before the fall of the Berlin Wall and the demise of the soviet domination that the trigger was activated for democratic transformations that brought semi-presidentialism to the fore. The Timorese had a significant level of autonomy in their Constituent Assembly, and they were able to tailor-make a system to address fundamental issues of their political culture and the conjuncture in which the parliamentarians were taking decisions. This is not meant to imply that some form of “diffusion” of a Portuguese matrix was totally absent, given that Portugal had created a sort of an “imperfect constitutional family” expanding beyond its frontiers (Neto and Lobo 2014). These authors have conducted a comparative survey of all Lusophone countries (Lobo and Neto 2009), and found evidence of emulation—but in the

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case of Timor-Leste to a considerably lesser extent than in former African colonies, which moved to constitutional regimes with the express support of Portuguese scholars from the University of Lisbon (Gouveia 2005). “Neighbour emulation” in the sense of over-border influence within a regional context, as posited by Brinks and Coppedge (2006), was not a consideration, as semi-presidentialism has shallow roots in Asia, and no other country in Southeast Asia has adopted the model. Emulation, with a significant capacity to make adjustments, came from other quarters: the Lusophone world. The first aspect bringing the two countries to a common comparative platform is thus the decision to engage in the transition and consolidation of recently conquered democracies, after long decades of oppression, with similar constitutions espousing the principles of semi-presidentialism (Elgie 2017). Over forty years have elapsed since Portugal approved its democratic constitution (from 1976), and in the case of Timor-Leste (from 2002), almost twenty years. Both countries are widely regarded as cases of difficult but successful democratization. Portugal because it did not pursue a “pacted” transition, that is, one that is achieved by means of a pact involving both the outgoing and the incoming political forces, usually regarded as the safest way out of an authoritarian regime, but rather a revolutionary one that for a while cast doubts on where the process was heading to, combining different aspirations and diversified notions of “democracy”, and later enduring for several years the tutelage of military over civilian institutions (Martins 2018). Timor-Leste because it faced what for many were insurmountable odds of democratic success (Feijó 2016a), and embarked on an original, double process of state-building and democracy building that defies current mainstream assumptions on the need to start democratization with a functional public administration in place (Tansey 2009). These are encapsulated in Juan Linz’s famous dictum: “No State, no Rechtsstaat, no Democracy” (1997). Timor-Leste chose to defy such an assumption. In brief, for both countries the challenges of installing a functioning democracy were high. Regarding the most popular democracy indices (Freedom House, Polity IV, The Economist’s Intelligence Unit’s), or engaging in more sophisticated analysis using Schmitter and Karl’s revision of Lijphart’s set of necessary conditions for polyarchies (1991) or the model espoused by Alvarez and his colleagues (1996), both countries appear as clearly pertaining to the restrictive club of democracies

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(Feijó 2017a). The most recent report of the V-Dem project (2020), which highlights a world trend towards autocracies, places Portugal in 7th place and Timor-Leste in 58th, both within the range of resisting liberal democracies. This conclusion allows for an inquiry into the likelihood that institutional choices may have played a role in fostering such developments, and if so, in what ways. A striking parallel can be drawn between the Portuguese and the East Timorese constitutions in what regards the definition of the presidential powers and the characterization of the executive domain. The Constitution of the Portuguese Republic (CRP) section 120 reads The President of the Republic represents the Portuguese Republic, guarantees national Independence, the unity of the State and the regular functioning of democratic institutions and is, by virtue of his position, the Supreme Commander of the Armed Forces

The Constitution of the Democratic Republic of Timor-Leste (CRDTL) defines the presidential function in much the same vein (section 74) 1. The President of the Republic is the Head of State and the symbol and guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions. 2. The President of the Republic is the Supreme Commander of the Defence Force. In sharp contrast to these prescriptions, which are not very specific as to the exact competences they entail, one finds the sections dealing with the government, that is, with the executive branch. CRP section 182 reads: The government is the organ that guides the general policies of the country and the superior organ of the public administration.

CRDTL echoes the same principle (Section 103) The government is the organ of sovereignty responsible for conducting and executing the general policy of the country and is the supreme organ of Public Administration.

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Unquestionably, executive functions are reserved for the government headed by a prime minister, and presidents are supposed to discharge different functions. Other sections of both constitutions elaborate on these principles, but they stick to a fundamental one: presidential functions are to be understood as not overlapping with those of the prime minister who is responsible for executive power. Whether or not they succeed in preserving this principle in the body of the whole text is a point of contention, and important scholars disagree on the interpretation of constitutional texts, which sometimes require the intervention of Constitutional Courts. In Chapter 4 we shall return to this issue when engaging a discussion on what are the distinguishing features of presidential powers in Portugal and Timor-Leste. The positive parallel between Portugal and Timor-Leste does not stop in the wording of their constitutions. Both countries developed paraconstitutional conventions, or a political doxa 5 —in particular, the consecration of “independent presidents” supposed to be the best expression of “moderating power” (Feijó 2012, 2014, 2017b, c, d)—that contribute to legitimize the comparative study of those experiences. Once again, the circumstances in which those systems came into being—Portugal having to cross a transitional period under the formal leadership of praetorian leaders without party affiliation, Timor-Leste having a strong, charismatic leader who broke with the revolutionary party that initiated the Resistance movement in the course of the liberation struggle only to emerge as the most respected nationalist figure, who refused either to return to his former party or to form a new one in the early years after independence and insisted on maintaining his status “above the party fray”—became strong precedents capable of shaping in the popular mind some critical ideas on what the president of the Republic was supposed to represent and how he should actually behave. In both countries, some rhetoric figures are used to convey a holistic understanding of the presidential function, such as “the lubricating oil that smooths the running of the system”, the “tip of the scale that guarantees equilibrium” or the “referee that maintains impartiality in the face of competing parties”.

5 Pierre Bourdieu indicates that a doxa occurs “when there is a quasi-perfect correspondence between the objective order and the subjective principles of organization” and the social or political worlds appear as self-evident (1977: 164).

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As John M. Carey noted (2000: 223), decisions that are objects of fierce bargaining at the time of the creation of a new regime have longlasting and pervasive implications, and tend to frame subsequent forms of behaviour. One might say that they constitute a sort of a genetic code encapsulating a political DNA.6 Or that those arrangements tend to fuel the emergence of a grand historical narrative with significant normative implications (Elgie and Passarelli 2019). Any of those approaches points in the sense of considering a situation that fits what the social sciences literature, in the wake of the economist and Nobel Prize laureate Douglass North has termed path dependence or “a way to narrow conceptually the choice set and to link decision making through time” (1990: 98). Human agency is not disregarded, but benchmarks are established that may be regarded as providing incentives to some outcomes rather than others. These considerations justify that political history be brought in the argument of comparative politics. This point is further developed in Chapter 2 Those early ideals may be considered fluid or blurred, and not to represent time-frozen, unchangeable attitudes. Attempts have been made in Portugal and Timor-Leste to introduce new concepts and redefine the relationship between the realm of presidents and that of political parties— some in the form of constitutional reform (Portugal 1982), others by simply using the constitutional freedom to experiment with different solutions (Portugal 2012, Timor-Leste 2017). We shall return to this issue in Chapter 4. Some of those attempts have had a negative impact on the prestige of presidents and thus on their capacity to influence the course of political events, suggesting that non-written conventions regarding the status of presidents as discharging “moderating power” not engaged with party politics are well anchored in the political culture of both countries. Even though presidents may have a formal party affiliation, it is expected that they do not act—using the language of principal–agent theory—as if a given political party is the principal, and the head of state an agent (Samuels and Shugart 2010: 16). Presidents act as principals or, as they

6 Gianluca Passarelli uses the genetic comparison in a discussion of the ways parties perform under diferente political regimes (2019: 4). The same metaphor was suggested by José Medeiros Ferreira, a scholar and left of centre politician, who wrote a key essay on the “genetic code of the democratic regime” (1981).

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often pretend, as agents of “all the people” given that they feel legitimized by the individualized features of presidential elections (discussed in Chapter 3) One final point can be added. As Robert Elgie (2009) has noted, “with the exception of work in English (and maybe Italian), there are perhaps more studies in Portuguese that focus specifically on semi-presidentialism than in any other language”. This fact, even if not all those studies focus on these two countries, and must be completed by literature in other languages, suggests that there exists a sound basis to initiate a discussion of hitherto little contemplated issues. One may also recall a fundamental principle of scientific research as it was voiced in the movie Dead Poets Society (Peter Weir 1989) by the main character, the English teacher John Keating, who tells his students Just when you think you know something, you have to look at it in another way

Methodological and Epistemological Considerations I have written the present book with both my hands. With my right hand, I have used heuristic devices that pertain to the arsenal of qualitative methodologies available to Comparative Politics and Political History. With my left hand, I have collected data over a very long period in a way that combines the formality of academically approved methods such as interviews, the observation of elections and extensive readings (biographies, memoirs, political speeches, etc.) with a different kind of experiences.7 7 The experiences I wish to mention relate to the fact that I have been actively involved in events and situations that became the object of study. In Timor-Leste, I was for the best part of one year (2005–2006) a UN-sponsored advisor to the presidency, under Xanana Gusmão, and able to accumulate first-hand knowledge of the modus operandi of the organs of state. Although my formal assignment was confined to a specific function, in reality I was called to assist in a variety of domains, and free to knock on virtually every door in the Palace of Ashes, as the official site of the presidency was known at the time. Although I was not supposed to take sides, but rather to explore the array of possibilities for action and draw a comprehensive picture of alternatives, this experience had an effect of associating me with the president’s position, and this would endure far beyond the end of my position. I do not think, though, that it tainted my relations with other political actors, and no significant distortion or bias derives from my association with

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I would not pretend that the experiences of my left hand correspond to Bronislaw Malinowski’s “participant observation” methodology that is a hallmark of modern anthropology, for lack of intensity and capacity to generate a holistic view of the phenomenon under scrutiny. But I would assume I have been, in Raymond Aron’s terminology a “spectateur engagé” (1982), trying to view the experiences I was living with one foot inside the ring (discharging whatever function I had to do) and the other outside it (allowing me to look and reflect critically on the full operation I was immersed in). For some, this approach may be deadly wounded by a lack of “distance” between the subject who researches and the object of his study. Controversies in the social sciences are plenty on this issue. In my defence, I would like to summon Norbert Elias who wrote a critical piece back in 1956. Elias argues human knowledge is framed by a polarity between “involvement” and “detachment”, and that a continuum or a flux exists in between the two. Scientific knowledge aims at placing itself as close as possible to “detachment”, but it cannot avoid a certain degree of “involvement”. Denying this evidence is the first step to scientific disaster. The establishment of scientific institutions bestowed with rigorous instruments—theoretical, methodological, technical or material—standardized procedures and power of oversight upon individuals’ performance, is the critical variable. The established social practices of scientists tend to admit that “involvement” is important in the determination of the direction of inquiries, but it is “counter-balanced and checked by institutionalized procedures” so that

the presidency. The fact that major political actors accepted to be interviewed for a book I published in 2014 is testimony of my ability to engage fruitfully with different sides of the East Timorese political spectrum. In Portugal, I have been an activist—and more than that, I had responsibilities—in several presidential campaigns (Soares 1986, 1991; Sampaio 1996, 2001; Alegre 2011; Sampaio da Nóvoa 2016). These experiences of civic involvement constitute a precious source of understanding of the dynamics of presidential campaigns which are indissolubly linked to the platforms the candidates subscribe and the way they envisage the function they are aiming to assume. They offered me an opportunity to observe from the inside the mechanisms of political action in presidential campaigns, which was later extended to frequent contacts both with the winning candidates (and, alas, also with the losers…) and with an extensive number of their staff members. Again, this fact did not impair my ability to analyse what rival candidates were proposing and actually doing, but rather expanded my network of contacts from whom I derived important information.

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the level of detachment represented by the scientists’ work has become more or less institutionalized as part of a scientific tradition reproduced by means of highly specialized training, maintained by various forms of social control and socially induced emotional restraints; it has become embodied in the conceptual tools, the basic assumptions, the methods of speaking and thinking which scientists use. (Elias 1956: 228–229)

In this sense, the “involvement” of the researcher with the object of study is not an impediment for the production of scientifically validated outputs if “detachment” mechanisms provide a powerful enough filter through which the analysis is conducted. I hope I have been capable of using the established mechanisms to deal with the problem of my “involvement”. The second justification for my approach rests on the inspiration drawn from Clifford Geertz postulate of “thick description” as a heuristic device in non-experimental sciences to allow for interpretations of phenomena in search of their meaning. This concept has been proposed with “the aim to draw large conclusions from small but very densely textured facts”— and it involves not only simple “facts” but a repertoire of concepts and systems of concepts “in the hope of rendering mere occurrences scientifically eloquent” (Geertz 1973: 321). To a large extent, the cumulation of evidence is made easier when the researcher is “involved” and disposes of instruments to decipher the complexity of the phenomena required for the production of sustainable forms of knowledge by producing highly dense databases, generating a virtuous curve of cumulative findings. What we call “knowledge” can be regarded as a multilayered concept recovering different notions growing in complexity and explanatory power from a mere description (requiring the capacity to identify the relevant elements that pertain to a given phenomenon), to comprehension (when regularities are apprehended, such as the sequence of moon phases), to explication/explanation (when one formulates hypothesis regarding the interaction of the elements present in a given phenomenon to provide a reason or justification based on analytic procedures that contribute to elucidate its significance), to the superior form of demonstration (“act of showing that something exists or is true by giving proof or evidence”—Oxford English Dictionary). The latter definition, however, contains two elements that ought to be distinguished: proof and evidence. “Proof” occurs, for instance, in mathematical theorems, and is perhaps the strongest form evidence. In other realms—and the social sciences in

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general fall under this category—evidence may be strong but it rarely— if ever—reaches the status of “proof” in the hard sense of the concept (Gil 1986). One may have to be satisfied with providing an explanation in the sense mentioned above. As Michel Foucault wrote, “[t]he function proper to knowledge is not seeing or demonstrating; it is interpreting” (1966). That’s what this book is about. Articulated with knowledge is the notion of causality—a concept that also admits variation in the strength of the established causal relations. Determinism is one extreme case, but less stringent approaches may be better suited to analyse social phenomena. In the reflection I conducted in the preparation of this book, two ideas struck me as relevant to determine the status of the conclusions I draw from my data. First, Karl Popper sustained that we live in a “world of propensities” (1990), implying that there exists a disposition for a given combination of elements to yield an outcome of a certain kind which is different from both a deterministic, iron rule or from random probability. He used the locution “weighted probability” as would emerge from an uneven dice throwing sequence. In this sense, the articulations of different elements present in my argument should be read as representing a propensity or disposition for a higher outcome frequency, and not a strong causality which would be out of place. Akin to Popper’s proposal, Marina Costa Lobo and Octávio Amorim Neto (2009) use the concept of “suggestive associations”. Again, this represents a form of weak causality that fits well with the analysis of political phenomena, namely those that involve a focus on institutions and their capacity to frame citizens’ behaviour. The interest of both those concepts is that they place in the centre of research the study of human agency—collective and individual. Speaking of the relationship between political institutions and political outcomes, those background concepts translate agency into the notion of “incentive mechanism”. An “incentive mechanism” is a social construct that rewards some individual and/or collective choices over different ones, and thus is critically focused on citizens’ agency and takes institutional design as a broad frame within which citizens operate their options. This is ultimately the sense I wished to convey in my analysis of presidencies and their relation to strengthen the fate of democracy in Portugal and Timor-Leste.

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Structure of the Book The book is based on in-depth analyses of several aspects of presidential power in Portugal and Timor-Leste, followed by attempts to gauge the wider significance of those findings using wider comparative frameworks. Chapter 2 deals with the historical background of current political regimes in Portugal and Timor-Leste. It surveys the emergence of presidential republics and considers the contexts in which a specific, and similar, form of semi-presidentialism came into being in both countries. It argues that a combination of historical elements with political culture and conjunctures was critical to allow for the emergence of systems that defied the passing of time and endured beyond the context of their inception. Chapter 3 is devoted to a discussion of the existing mechanisms for the choice of presidential candidates, stressing their special relation to the world of political parties. The systems in place seem to work better if some distance is maintained between presidential candidates and presidents, on the one hand, and the realm of party competition that is essential in legislative elections and for the political support of prime ministers. In other words, some form of “independence” is widely regarded as a positive attribute. This is further sustained by the fact that, both in Portugal and TimorLeste, political parties are organized around leaders who aspire to the premiership, leaving presidential choices for “senatorial” figures capable of creating broader platforms required to obtain absolute majorities. The long Chapter 4 reviews presidential competences in both countries, trying to establish the extent to which those attributes materialize a unique ethos for presidential functions that fits the “moderating power” model imagined by Constant. Chapter 5 deals with two exceptions to the general rule—a circumstance that is fortunate for academic research since it allows to test the validity of the underlying hypothesis. Both Portugal and Timor-Leste witnessed cases in which presidents deviated from the established doxas, adopting positions that subverted the relations presidents are supposed to entertain with political parties and their parliamentary struggles, affecting the nature of their relations with prime ministers. The Portuguese example ended in sour terms for the president, while the East Timorese one is currently being experienced with a negative impact on political stability. Lastly, Chapter 6 draws on the conclusions of previous ones to propose an explanation for the apparent virtues of the “moderating power” model for presidential competences. It argues that the

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political systems of Portugal and Timor-Leste are flexible to accommodate the evolution of the balance of power between the main political families without implying institutional changes. That they embody the virtues of inclusiveness suggested by Lijphart as critical to democratic development. And that they enlarge the scope of horizontal accountability thereby contributing to a stronger form of democracy. What Giovanni Sartori thought might be “institutional witchcraft” finds here a rational explanation.

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V-Dem. (2020). Autocratization Surges: Resistance Grows (Democracy Report 2020). Available at https://www.v-dem.net/media/filer_public/f0/5d/f05 d46d8-626f-4b20-8e4e-53d4b134bfcb/democracy_report_2020_low.pdf. Vincent, K. S. (2011). Benjamin Constant and the Birth of French Liberalism. Basingstoke: Palgrave. Whitehead, L. (2001). The International Dimensions of Democratization. Oxford: Oxford University Press. Wu, Y.-S. (2011). Clustering of Semi-Presidentialism: A First Cut. In R. Elgie, S. Moestrup, & Y.-S. Wu (Eds.), Semi-Presidentialism and Democracy (pp. 21– 41). Basingstoke: Palgrave Macmillan.

CHAPTER 2

The Emergence of Presidential Republics in Portugal and Timor-Leste

Abstract Portugal is one of the oldest Republics in Europe, having experienced all three government systems. After the Carnation Revolution (1974) it was a pioneer of semi-presidentialism in the Third Wave of Democratization. In due course, the Portuguese model was adopted in some former colonies, such as Timor-Leste. This chapter offers a historical perspective on the evolution of government systems in Portugal and the consecration of semi-presidentialism with “moderating power” in both countries. It argues that historical legacies, political culture and shortterm political considerations merged to produce an institutional context that endured beyond the initial circumstances, and grounded a grand historical narrative centred on the notion of “independent” presidents. An examination of the evolution of constitutional provisions is offered. The argument is presented that such a model favoured power-sharing and inclusiveness, with a positive impact on democratic transitions. Keywords Institutional design · Constitutions · Moderating power · Powers sharing · Lusophone model of semi-presidentialism · Historical narrative

© The Author(s) 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5_2

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Portugal Presidents and Government Systems in Portuguese History (1910–1974) Portugal has been a republic since October 5, 1910—the third country in twentieth-century Europe to live under such a regime after Switzerland (from 1648) and France (from 1870). The instalment of the First Republic in Lisbon was the first of the century, preceding the wave that swept the continent in the wake of World War I. For over a century, this sort of regime has been—at least in formal terms—a constant that coexisted with the three government systems compatible with a Republic—parliamentarism, presidentialism (under the authoritarian Estado Novo, and thus a special case that cannot be compared to the other two that happened in democratic polities) and semi-presidentialism. In the years since the proclamation of the Republic, Portugal had 24 presidential elections: during the First Republic, six elections by parliamentarians took place alongside a direct one—the first of the twentieth century, and only the second in modern Europe after Louis Napoléon in 1848; the authoritarian regime organized eight, of which three were direct but non-competitive (1928, 1935, 1942), three semi-competitive direct elections (1949, 1951, 1958), and two non-competitive, indirect ones (1965, 1972). The Second Republic organized so far nine direct and competitive presidential elections. This places Portugal as one of the European countries with more experience in presidential elections and diverse institutional arrangements regarding presidential powers. The First Republic (1910–1926) was installed by a civilian coup after almost a century of constitutional monarchy. The Constitution of 1911 stipulated that the president would be elected by the House for a fouryear mandate, and dispose of little more than ceremonial powers (Freire and Costa Pinto 2010). The parliamentary republic coincided with a great deal of political instability. In the sixteen years of its tenure, Portugal had eight presidents, seven elected parliaments, 45 governments with 40 different heads of government, and two provisional juntas. During World War I, there was a brief interregnum to parliamentarism when Sidónio Pais (1872–1918) led a military coup, introduced República Nova (1917– 1918), amended the constitution that installed a presidential system, and organized a direct presidential election with the widest suffrage the country had ever experienced (Feijó 2012)—only to collapse with the murder of the President-King (as the poet Fernando Pessoa would call

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him) in a train station in Lisboa. The Constitution of 1911 was reinstalled, and Sidónio’s legacy would resurface years later after the fall of the First Republic. Notwithstanding the many achievements of the First Republic and the irreversible nature of many of those—including the republican form of government—a strong, enduring correlation was established between a parliamentary system, social unrest and political instability (Martins 2018). The fall of the First Republic at the hands of military rebels on May 28, 1926, was followed by another period of instability in which the military assumed prominent roles, including the control of the presidency that would last for sixty years. In the two subsequent years, the Ditadura Militar (1926–1928) saw three different presidents and as many prime ministers. The last president, General Óscar Carmona (1869–1951) made a long transition, first to Ditadura Nacional (1928–1933, with four prime ministers), and then to Estado Novo (1933–1974). He was president from 1926 (but only first elected in 1928 in a non-competitive election, replicated twice in 1935 and 1942) until his death in office in 1951. In 1949 he fought the first semi-competitive election of Estado Novo, which would occur only twice more (1951, 1958). The Constitution of 1933 instituted a presidential system. However, this was in a sense a fake regime, as the true holder of power was the head of government, António de Oliveira Salazar (1889–1970; Minister of Finance for five days in 1926; then again, with increased powers, from 1928 to 1932; and prime minister from then on to 1968). The “President of the Council of Ministers” was actually the centre of power in Portugal, and no president ever attempted to remove him from office. A classification of this system as “presidentialism of the prime minister” which will resurface in the rather different context of the late 1980’s in the words of a conservative politician—Adriano Moreira (1989)—was then adequately coined (Martins 2018). The presidential election of 1958 was marked by the surge of popular support for the opposition candidate, General Humberto Delgado (1906—murdered by the secret police in 1965), who was officially defeated by the man who would remain as president until the end of the regime in 1974, Rear Admiral Américo Thomaz (1894–1987) (Pacheco Pereira 2005). The regime felt the shock and amended the constitution to have the president elected by a special college, but the nature of the relations between the heads of state and government remained unchanged.

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However, in the last years of the regime, the president was regarded as a solid anchor for the most conservative elements of the elite, opposing the allegedly more liberal faction of then prime minister Marcello Caetano (Pulido Valente 2002). When the regime fell, presidentialism was closely associated with the authoritarian and repressive nature of its incarnations in Portugal. The Second Republic: The 1976 Constitution and Its Background As the “Carnation Revolution” broke out in April 25, 1974, most people associated a parliamentary regime with instability and turmoil, and a presidential system with authoritarianism and repression. Without a clear and tested alternative model to inspire its leaders, the search was on for a new system that would supersede the negative features of the two previous experiences. It would take two years of political turbulence to find something new. From April 25, 1974 to April 2, 1976 The programme of the Armed Forces Movement (MFA) that overthrew the authoritarian regime assigned the choice of the political system to a Constituent Assembly (Point A.2.), and did not impose any model. However, it contained implicit suggestions. First, it stipulated that during an interim period, the president chosen by the provisional Junta de Salvação Nacional in line with its own revolutionary legitimacy would have “powers similar to the ones mentioned in the current constitution” (Point B.1.) which was presidentialist. Second, the transitional period would end “as soon as the Nation elects the Legislative Assembly and the new President of the Republic” (Point C.1.), suggesting that a direct election would be adopted. Although none of those points can be regarded as an imposition on the freedom of choice of the constituent deputies, they nevertheless indicate that a significant role was expected to be assigned to the president both during the transition period and after the definition of new institutions. The first president after the revolution, General António de Spínola (1910–1996, in power April–September 1974), soon became aware of the limitations of his own position as a designated but not elected president, and sought to introduce changes to the political calendar proposed by MFA. He asked his prime minister Adelino da Palma Carlos (1905– 1992, in power May–July 1974) to elaborate a proposal that would

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have deferred constitutional elections by two years, and contemplated the approval by plebiscite of a provisional constitution coupled with the early and direct election of the president who would see his legitimacy grow in the face of the military who had brought about the change of regime (Gaspar 1990; Braga da Cruz 1994). The Council of State overwhelmingly voted against this proposal prompting the resignation of the prime minister and further weakening the acting president, who eventually resigned in September. A second pre-constitutional moment took place in the wake of the failed coup of March 11, 1975 which triggered the radicalization of the political process. The decision to honour the election of a constituent assembly was subject to negotiations that ended up with the adoption of a “Platform of Constitutional Agreement” (April 13, 1975), aka “Pact MFA-Parties”. This document contains the principles that ought to be observed by the constituent deputies (elected on April 25, 1975), and specifically mentions the issue of future presidents, including the model for their election and the blueprint for their powers (Point D.2.). The president should be elected by an electoral college made up of the legislative assembly (250 members) and the “MFA Assembly” (240 military members). Presidential powers would be closely articulated with those of the Council of the Revolution (formed only of military personnel), that he would chair, which would be granted extensive competences effectively limiting those of the president. The parties that subscribed to this pact presented the constituent assembly projects for a new constitution contemplating what had been agreed. Only the radical left UDP stood out of the consensus—but its project mentioned very little in the way of organs of sovereignty (Diário da Assembleia Constituinte, Suplementos 13, 14 and 16). Before the constitution was drafted, the coup of November 25, 1975 in which the radical left was defeated brought new changes to the political scenario, and redefined the relationships between the military and the civil politicians in the conduction of the political process. In this new context, a profound revision of the “Pact MFA-Parties” brought to the fore novel perspectives on the issue of the president. The second “Platform of Constitutional Agreement” (February 26, 1976) fixed a minimum period of four years for the transition to full democracy during which the coexistence of revolutionary and electoral legitimacy was to coexist. It stipulated that the president be elected by universal, direct suffrage for five-year terms; the president remained chairman of the Council of the Revolution,

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whose competences were curtailed but remained considerably important, as well as Supreme Commander of the Armed Forces (Point 2). Equally important is the clause that determines that “the Government is politically responsible both before the President of the Republic and the Legislative Assembly” (Point 4.1.), so that both sources of political legitimacy be guaranteed. Those terms of the agreement would be inscribed in the letter of the Constitution of the Portuguese Republic (CRP) adopted on April 2, 1976 (Araújo 2003: 83–84). As Manuel Braga da Cruz stated, the “presidentialist” aspect of the system did not enter the political arena by a free and autonomous decision of the constituent deputies […] but by means of a military constraint, tactically accepted by the parties that subscribed the pact of 1976’. (1994: 242)

In a sense, a sort of bonapartism was installed that would impinge on the birth of democratic constitutionalism (Bayerlein 1996). The dual nature of the government system was then established. The terms of the pact would not be, however, a complete surrender of civilian politicians. In terms of the current understanding of government systems, the constitution that was approved on April 2, 1976 and permitted the start of the Second Republic with parliamentary (April 25, 1976) and presidential elections (June 27, 1976), consecrated a semipresidential regime of the president–parliamentary type, with ample room for the prime minister issued from the political parties represented in parliament. Background to the 1976 Constitution The model adopted by the Constituição da República Portuguesa (CRP) emerged in response to a vast array of questions which go beyond the conjuncture of the revolutionary year and contribute to understand the longevity of the solution that was adopted. The decision to move with a direct election by universal suffrage responded to the need of institutionalizing a model which would allow the military leadership emerging from the events of November 25, 1975 to obtain a solid democratic legitimacy and favour the evolution of the regime in the sense of subordinating military power to civilian rule— even if in the short term the adopted formula did restrict the domain of partisan power and assured the survival of the military Council of the Revolution (Gaspar 1990: 15). In this sense, those parties that seconded

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the faction of the military who were in power should support the election of one of them for president, who would in turn assume to behave as an “independent” figure, not associated with any particular political party, but situating the realm of his action “above the party fray”. If it is true that the main political parties respected the idea of a military candidate, it is also important to note that the “implicit clause” seems to have had another consequence with far-reaching consequences, resisting the passing of time: the idea that the president should be “independent”, discharging “moderating functions” not in direct confrontation with executive powers, and facilitating compromises in a system characterized by party fragmentation as expected in the wake of the adoption of proportional representation. John M. Carey’s argument about the implications of choices resulting from negotiations taking place at the time of the creation of institutions being felt on the long-term and assuming a quasi-structural role in shaping political expectations (2000: 222) should be recalled. The weight of the preferences of actors involved in the original process of institutional choice has also been recently underlined by Thomas Sedelius and Jonas Linde (2017: 14). This sort of argument, in turn, suggests that consideration should be paid to historical causes that converge on the choice of a model for the presidential election and the definition of the powers vested in the head of state (Freire and Costa Pinto 2010; Braga da Cruz 2017). First among those, the Processo Revolucionário em Curso (PREC—the “ongoing revolutionary process”) had established the desire of very large sectors of the population to be part of the political process. After the defeat of the most radical elements who praised direct democracy and had a blurred idea of its institutional translation, this desire for participation would be manifested in the massive electoral turnout in 1975 and 1976— 91.7% in the first case, 83.5% in the case of parliamentary elections and 75.5 in the presidential ones. It would have been unwise to devise a model for the choice of the highly symbolically charged function that would not mobilize the entire political body of the nation. As Jean Blondel has argued, the role of presidents in processes of nation-building or regime change is often critical, as “the president may contribute markedly to the legitimation of the regime, since he or she controls the one ‘institution’ which has ‘universal visibility’” (Blondel 2015: 5–9). Democrats could ill afford not to base presidential elections on wide universal suffrage. Secondly, the memory of important presidential campaigns under Estado Novo, namely those of Norton de Matos (1949) and above all

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that of Humberto Delgado (1958) in which the opposition was allowed to field candidates called for the reinstatement of the historical tradition of direct elections, if for no other reason, the symbolism it enshrined as effective means to combat authoritarianism. There subsists to this day a widespread belief that the 1958 elections were fraudulent, the people having been denied the victory of their popular candidate. Thirdly, Portugal possesses a political culture that accentuates the personalization of authority, calling for the emergence of a democratic model tributary to a strong symbol legitimized by popular elections (Salgado de Matos 1983: 236; see also Salgado de Matos 1986). In this sense, the legacy of Sidonio Pais’ República Nova has endured more than the brief period of his tenure. In another context, the personalization of politics would take new turns under CRP, as Marina Costa Lobo (2005) has discussed regarding the emergence of powerful prime ministers. In the same sense of evoking political culture, one might add the opinion of Jorge Miranda, member of the constituent assembly and one of the most relevant deputies in the drafting process, himself a distinguished professor of constitutional law, who lists among the sources of the Portuguese constitution the “Constitutional Charter” of the monarchy (Miranda 1978; see also Araujo 2003). This charter was Portugal’s main law for most of the period between 1826 and 1910, and it explicitly cited the role of the monarch as a “moderating power” in a quadripartite scheme (Sardica 2012). Finally, as we have seen, narratives were common regarding the history of Portugal in the twentieth century that build on the idea of the failure of both parliamentarism associated with the First Republic and the authoritarian temptation of presidentialism under the Estado Novo. The main political figure of the deposed regime was not a president but the head of government, António de Oliveira Salazar, and this was another reason to resist the idea of powerful individuals, including a prominent prime minister. This was the context within which Portuguese politicians looked for an alternative and semi-presidentialism emerged. Constitutional Revisions: Controversies and Consequences In the 1980s and 1990s, two moments when significant revisions of the constitution were implemented need to be considered. One was mostly technical and did not impinge on the nature of the presidential powers nor on the relations between the president and the prime minister: it took place in the 1997 revision that abolished CRP section 124.2 restrictions

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of suffrage to those who could cast their vote in the national territory, and enlarged franchise in presidential elections to citizens living abroad (Abrantes and Miguéis 2005).1 A serious and controversial one took place at the time of the first constitutional revision (1982) which introduced important changes in the government system, but keeping semi-presidentialism as its matrix. The most relevant one was the decision to abolish the Council of the Revolution, signalling the institutional end of the transitional period during which the military possessed tutelage powers over civilian governments. The powers bestowed upon this council were redistributed among other organs of sovereignty, including the president, the government, the parliament and the newly created Council of State and Constitutional Court. The extinction of the Council of the Revolution removed the previous mandatory approval by that council of several decisions pertaining to the realm of presidential competences, therefore enlarging the presidential autonomy hitherto compromised by his function as chairman of that council and by collective deliberations in which he was merely primus inter pares. Presidential competences were redrafted. Most important among those changes are the competences of the president regarding the initiation and termination of the government’s mandate. If presidents are bound, as in any semi-presidential system, by the results of the legislative elections that pertain to the confidence governments must enjoy in the House, their discretion to choose a prime minister are considerable—namely, the power not to choose any candidate for the post and opt for the dissolution of parliament.2 As for the powers regarding the termination of the term in office, the competence to dismiss the prime minister has been reconfigured. Rather than being a free power, the exercise of this competence must now 1 For a discussion of presidential elections under the Second Republic, see Feijó (2017a). 2 There are at least two cases deserving consideration: President Eanes (1983) refusal

to appoint a new prime minister (Vítor Crespo) supported by the parliamentary majority that had won the previous election, after the resignation of the head of the executive; and President Soares refusal (1987) to appoint the secretary-general of the socialist party, Vítor Constâncio, supported by a coalition formed after the approval of rejection motion of the minority government headed by Cavaco Silva. However, parliament cannot be dissolved in the first six months following its election, nor in the president’s last six months in office, a circumstance that makes the choice of prime minister subject to varying conditions. The example of Cavaco Silva’s last prime minister will be further discussed in Chapter 5.

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only occur when “the normal functioning of democratic institutions” is at stake—although CRP refrains from making those conditions explicit and leaves it up to the presidents’ discretion, and thus to their political judgement (Farinho 2017). In fact, “there are spaces in which the constitution refrains from establishing an exhaustive regulation, leaving a more or less generous margin of indeterminacy, which only the course of time will translate into constitutional customs, conventions and doxa” (Canotilho and Moreira 1991: 8). Following Octávio Amorim Neto and Marina Costa Lobo, “this presidential power has been curtailed but not eliminated” (2009: 240)—it exists regardless of the frequency of its use. As the constitutionalists J. J. Gomes Canotilho and Vital Moreira wrote, the powers and the constitutional competences of the organs of sovereignty do not lapse by disuse, and the fact that for a larger or smaller period of time a restrictive understanding or a position of contention has been adopted does not prevent the full recovery of all the constitutional capacities. (1991: 8–9) 3

At the same time, presidential power to dissolve the legislature has been increased to full discretion (with restrictions regarding the timing of dissolution), whereas it previously depended on a mandatory agreement of the Council of the Revolution. Presidential veto powers have also been considerably enlarged (government decrees are subject to a definitive veto, parliamentary laws require an absolute majority to override the veto, and in some cases a two-thirds majority is required). Much has been written on the topic of the redefinition of presidential powers in the constitutional revision of 1982, and controversy endures to this day because this issue impinges on the actual performance of presidents. A note of caution is thus required at this stage. Called by President 3 A comparative example could be mentioned here, referring to Austria, another country with a semi-presidential regime in which the president is normally regarded as a ceremonial figure not interfering with the formation of government. However, in 1999, after the party that got the plurality of the vote (which happened to be his own party) initiated negotiations to form a majority coalition with a radical right-wing party (Euro-sceptic and xenophobic), President Thomas Klestil made it known that he would impose clear boundaries to the political platform of Chancellor Wolfgang Schussel coalition. In so doing, he brought to the fore the nature of the powers of the president in spite of the dormant nature of those powers that had never been used before but had not lapsed by disuse. In this light, the approach that sustains the importance of the constitutional matrix that allows for different political praxes seems to emerge reinforced.

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Soares to provide a reasoned opinion on presidential powers, J. J. Gomes Canotilho and Vital Moreira, constitutionalist experts from the University of Coimbra, initiated their study acknowledging that “the powers of the president represent an area where different constitutional understandings are known to exist, where prejudices are abundant, and where politically uncommitted studies are rare” (1991: 5). Controversy does not seem to have subsided in the last quarter century, and neither did the political motivation of the players in this field in spite of a growing number of independent academic studies.4 Voicing discontent with the stipulations of the primitive CRP that had grown in the leadership of several democratic parties, in 1980 PPD/PSD prime minister Sá Carneiro (1934–1980) inspired a proposal for a profound revision of the constitution and pleaded for an openly presidentialist drive (Santana Lopes 2013: 15–16).5 At that time, he proposed a slogan that would be long-lived although with little practical favour— “one government, one majority, one president ”—supposed to encapsulate his vision for a radically new political arrangement. But when the constitution revision process was set in march two years after his tragic death, Sá Carneiro’s position had been abandoned by his party which, together with the socialists, was then in favour of asserting the powers of parliament and moderating presidential ones without changing the nature of the system (Canotilho and Moreira 1991: 23–24). The full implications of such moves remain controversial. On the one hand, André Gonçalves Pereira—a constitutionalist and member of the government that negotiated the 1982 revision—maintains that the depth of the changes implied a substantial alteration in the nature of the system: [A]ccording to the characteristics that we have mentioned, it would be erroneous to persist sustaining its configuration as a semi-presidential one. Therefore we sustain that right now we are before a ‘rationalized parliamentary’ system. (Pereira 1984: 61)

4 In the following pages I mention the most obvious political connotations of various influential authors to underline this critical element of Canotilho and Moreira’s argument. 5 See Novais (2010: 112–113) for a summary of the original positions of the major political parties.

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This classification has also been upheld by other constitutionalists, one of whom (Vital Moreira) had been an active member of parliament both in 1976 and 1982 (Canotilho and Moreira 1991). Many years later, Cristina Queirós (2007), still echoes the view of the abandonment of the semi-presidential nature of the political system following the 1982 constitutional revision. This position is at odds with the definition of semi-presidentialism adopted in this essay, which echoes Robert Elgie’s proposed definition of this government system. A radically different view has been adopted by political scientist Luis Salgado de Matos (sometime political advisor to President Jorge Sampaio), one of the first to discuss the issue of the Portuguese government system in the framework proposed by Maurice Duverger. For him, [t]he constitutional revision of 1982 has kept the essential powers of the president who can still dismiss the prime minister and dissolve the parliament. As far as a comparison of two different juridical norms is allowed, one can say that this revision has increased or at least maintained the presidential powers. (1983: 241)

In the same vein, coming from constitutionalist quarters, Isaltino de Morais, Ferreira de Almeida and Ricardo Leite Pinto—all associated with a right of centre party—wrote: The first constitutional revision, at the level of the government system, has consecrated semi-presidentialism […] consolidating the position of the Parliament but without implying a devaluation of the presidential status which was, in several points, reinforced. [In fact] not all the alterations were translated into a limitation of the presidential status. Whereas some meant a fine tuning of form and content, which did not imply a change in that status, others, which are not minor precisely because they are located in the area of the most relevant juridical powers, came to reinforce the role of the president in the logic of the system. (1984: 89, 100)

The middle ground is where one finds, as would perhaps be expectable, the larger number of opinions, stressing the notion of rebalancing of powers as the defining feature of the constitutional revision. A prominent centre-right politician and constitutionalist, Marcelo Rebelo de Sousa (currently president of the Republic), sustained that

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[t]he current government system [after the 1982 revision] is semipresidential, with a tendency for the equilibrium between its two main components, and it may evolve either in the direction of more significant presidential intervention or in that of a more important parliamentary component. (1984: 54)6

Pedro Santana Lopes, who was involved in drafting Sá Carneiro’s proposal and later in the 1982 parliamentary discussions (long before he was appointed prime minister of the XVI Constitutional Government in 2004), dubbed the process as “the revision that was possible” (2013: 92). In earlier writings, he claimed that after considering the systemic accounts, the redistribution of constitutional powers yields a crystal clear confirmation that the juridical-constitutional arsenal of the chief of state in his relations with the executive has been curtailed [even if] accrued difficulties emerge as soon as any holder of the presidential chair decides to influence the direction of the national political life. (Santana Lopes and Capitão 2001: 111)

Later, he would explain that the purposes of limiting the presidential powers by means of restricting his capacity to freely dismiss the prime minister was actually frustrated by granting the same president powers to freely dissolve the parliament. In his opinion, the parliamentarians “just forgot that they were entrusting such a power to a directly elected president” (Santana Lopes 2013: 101) who would not exert that power according to a parliamentarist vision but rather in the context of semi-presidentialism. 6 A lot has been written on this possibility of open evolution and the actual configuration of powers between the president and the prime minister as emerging from the succession of elections which have returned vastly different outcomes. Examples include Blanco de Morais piece on the “metamorphoses” of the Portuguese semi-presidentialism (1998) or António de Araujo on the “evolution of the political system” (2003). A major piece is the one by Marina Costa Lobo in Poguntke and Webb’s volume on the Presidentialization of Politics in which she argues that the Portuguese is a case of “increased autonomy and power resources of the prime minister” (2005: 269). However, I am not so much concerned with the differentiated praxes of the regime, which has shown various possibilities in response to a variety of political circumstances, but rather with the constitutional matrix that allows room for those changes to emerge, and which in the last resort determines the nature of the system. Arend Lijphart (1999) has shown how similar constitutions are applied in vastly different manners without implying that the nature of the system be called into question.

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Suggesting that the 1982 revision inaugurated a new period of “constitutional normalization” which was to be completed by political developments that reinforced the civilian nature of the Portuguese democracy, Carlos Gaspar (sometime political adviser to two presidents) sides with those who stress that the government ceased to be “politically responsible before the president” at the same time that the presidential powers to dismiss the prime minister were “circumscribed” (1990: 22). Manuel de Lucena referred that what often happens [to political regimes] is a metamorphosis in a strong sense, which alters their political essence even if formal constitutions remain mostly unchanged. That is the case with the Portuguese constitution of 1976. (1996: 834)

His suggestion is that the regime evolved mostly due to political factors such as the first single-party majority in 1987 (which put an end to eleven years of minority governments or fragile coalitions that placed the president on the centre stage) without requiring a substantial alteration of the terms of the Constitution. On the left of centre, the socialist jurist António Vitorino considered that we can identify in the 1982 revision the central concern of maintaining the original matrix of a semi-presidential system of government, which led in some cases to reinforce the presidential component of such system, and in others to the strengthening of the parliamentary one. (1984: 780)

This apparent contradiction is explained by virtue of one of the central goals of the revision being the extinction of the Council of the Revolution “and consequently redefine the equilibrium of powers between the different organs of political power […] namely attributing new powers to the President of the Republic, the Assembly of the Republic and the Government” (1984: 779) The nature of the power to dismiss governments and/or to dissolve parliament has been recently discussed by Domingos Farinho (2017), who considers that the distinction between “institutional” and “political” responsibilities of the prime minister before the president “creates a problem for the interpreter who has to search for the intended meaning assigned by the legislator” and concludes that, in the last instance,

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ascertaining what the “regular functioning of institutions” actually is constitutes something that ought to be solved with solid bases within the broad framework of the Portuguese constitution, even though our system allocates the power to gauge the situation to one sole person, without any possibility of a subsequent juridical syndication of the decision, and does not contemplate any form of sanction for an incorrect appraisal of the existence of substantial reasons to dismiss the government. (2017: 187)

The distinguo that has often been put forward as a major innovation of the constitutional revision—“institutional” versus “political” confidence—is shown in those words to be more of a legal fiction than a political constraint for Portuguese presidents, and thus the strength of the argument sustaining major changes in the nature of the relation between presidents and prime ministers suffers a blow. The Latin maxim virtus in medium est does not always produce the best results, and in this specific case Jorge Reis Novais, a constitutionalist who was for ten years advisor to President Sampaio, and authored the most thorough analysis of the Portuguese semi-presidentialism (2007, 2010) should be followed. Novais devotes a full chapter of his later book (2010: 111–143) to the 1982 revision of the constitution, and to substantiate the reasons why he has concluded that in the end of the day, against all expectancies and against what is the more generally accepted conclusion, the powers and the status of the President of the Republic have been accrued, and in a significant way. (2010: 114)

Jorge Novais signals an important change in that the political dependency of the government before the president has been replaced by a more diffuse notion of responsibility that includes the obligation to keep the president informed (2010: 135). In this sense, the role of the president is redefined in line with what Francisco Lucas Pires, a conservative politician and sometime leader of the right-wing CDS, wrote: In the logic of rebalancing, what can truly be said is that the powers of political direction of the president have been reduced, but on the other hand the powers of moderation and arbitration were increased. (1987: 305, my emphasis; see also Pires 1988)

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This is to say: the 1982 revision of CRP carved for the presidency a cluster of competences that are critical in the definition of what “moderating power” is in the Portuguese political system. Although the precise competences are different from what they were in the 1976 version, CRP underlines that the ethos of the presidency is not of an executive nature but rather of a different one. This assertion does not imply that the relationships between the president and prime minister have been subverted. A dual responsibility of the prime minister before the parliament and the president subsist to this day, fluctuating in importance with the balance of forces in the House and the nature of the parliamentary majority. The non-executive realm of presidential competences is thus a common trait between the two versions of the Portuguese democratic constitution.7

Timor-Leste When the Carnation Revolution broke out in Lisboa, Portugal still had sovereignty over half an island in the Lesser Sundas archipelago of Southeast Asia, surrounded by Indonesia, fourteen thousand kilometres away. A few years earlier, a colonial administrator had characterized the territory as a “colony without colonizers” (Corrêa 1944: 15), and it received scant attention anywhere in the world. According to international law, “Portuguese Timor” was a “non-autonomous territory” which deserved the right to self-determination. The novel authorities duly obliged, and a selfdetermination process was initiated. It would prove to be very tumultuous and long-lasting (see Feijó 2016b, 2017b). The first phase of decolonization ended in late 1975. Following a brief and bloody civil war, the revolutionary nationalists of Fretilin (Frente Revolucionária do Timor-Leste Independente/Revolutionary Front for an Independent Timor-Leste) proclaimed independence on November 28, a move that met with international refusal to acknowledge the new state. The Democratic Republic of Timor-Leste was short-lived, as the Republic of Indonesia launched a full scale military invasion on December 7, and 7 There is ample agreement that, right after the promulgation of the 1976 Constitution, Portugal presented a “president-parliamentary” form of semi-presidentialism. For the majority of scholars and commentators writing on Portugal, the 1982 revision changed the situation, and they propose to consider current day Portugal as an example of “premierpresidentialism”. I consider that the basic feature of the system—the double responsibility of the prime minister before the president and the parliament—has not been substantially altered, and therefore the previous classification describes the system in a better way.

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took control that would last until a UN-sponsored and supervised selfdetermination Referendum on August 30, 1999. International law never acknowledged the annexation of the territory, and only a handful of countries recognized the de facto situation. Prominent among the countries that did recognize the proclamation of independence were the former Portuguese colonies in Africa—which would provide much-needed assistance to the Resistance—and some Asian countries, including the People’s Republic of China. Having voted overwhelmingly for independence, the UN stepped in for a transitional period during which a new constitution was drafted. Timor-Leste proclaimed the re-establishment of its Democratic Republic to international applause on May 20, 2002.8 The Constitution of 1975 At the time of proclamation of independence, Fretilin announced a constitution for the country. This is a relatively short document (55 sections in all) which established a single-party state in which Fretilin would be the sole political organization. The president would be nominated by the party’s central committee. He would appoint a prime minister and a government acting under instructions from the party. The party had the right to remove the president. The East Timorese constitution of 1975 is typical of post-colonial single-party regimes, and pays little attention to state institutions which are regarded as subordinate to the single party. As such, this document had little to offer when a new situation emerged: independence had been achieved by means of the mobilization of several strands of public opinion, and it gained traction in a world in which democracy was the zeitgeist. In 1999, East Timorese nationalism was pluralistic and Fretilin was then one among various entities that had joined forces under a common umbrella, Conselho Nacional da Resistência Timorense (CNRT) (National Council of the Timorese Resistance). True, Fretilin remained the most extensively structured political organization, but lots of water had run under the bridges, and new actors had important roles to play. The 1975 constitution was altogether abandoned, and played no part in the discussions leading to a new fundamental law of the country.

8 See Feijó (2019) for a brief survey of recent history of the territory.

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The Constitution of 2002 The Constituent Assembly of Timor-Leste was elected exactly two years after the Referendum, at a time when the UN had full control over the territory. This election was inscribed in the preparations for full independence. Both the UN and several friendly nations—most notably, Portugal—provided technical assistance to the members of the assembly, but by and large they were given free rein to draft the constitution. The document was approved in April 2002, just in time for it to be associated with the celebration of the restoration of independence on May 20—a date chosen to coincide with the anniversary of the foundation of ASDT—Associação Social-Democratica de Timor-Leste / Timor-Leste’s Social Democratic Association—later transformed into Fretilin.9 Background During the long period in which the territory was incorporated by force into the Republic of Indonesia as its 27th province (Timor-Timur), few countries provided active support to the Resistance. Portugal and Lusophone countries were among the exceptions. Mozambique was then a major haven for exiled Timorese, especially for Fretilin leaders. Portugal benefitted from the fact that the international law acknowledged its role as administering power of a non-autonomous territory to keep the issue alive in many fora. All this reinforced the links between the leadership of Timor-Leste—and indirectly, the people of the territory—and the Lusophone world (Feijó 2010). In the aftermath of African independences, in 1975, all former Portuguese colonies adopted single-party regimes. This was to evolve, and by the late 1980s a movement was in place to adopt democratic constitutions. Portugal supported the democratic drive of the novel Lusophone countries, and provided technical support to constitutional drafting. Many professors from the Faculty of Law of the University of Lisboa discharged advisory functions (Gouveia 2005). Among the items that inspired many of those constitutions one counts the government system. In fact, the majority of Portuguese speaking countries in Africa formally adopted semi-presidentialism (the main exception being Angola, which has later evolved to its present presidentialist system).

9 I have discussed the process of constitution drafting and the emergence of a specific form of semi-presidentialism in various occasions. See Feijó (2014, 2016a, c) for detailed analyses.

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Many important leaders of Fretilin and the Resistance in exile lived in Mozambique and witnessed a political process by which a singleparty state was transformed into a multiparty, constitutional democracy. To a large extent, the experience of Fretilin mirrors the evolution of Mozambique. It would play a role in the East Timorese constitutional process. Despite having assumed a feeble form during the colonial period, the influence of Portugal and the Lusophone countries represented a major inspiration for the new political developments, namely the drafting of the constitution. Government System Timor-Leste adopted semi-presidentialism as its government system. Presidents are directly elected for a five-year term, which can be renewed only once, and coexist with prime ministers whose legitimacy derives from parliamentary support, the House being also directly elected for five-year terms. This double election creates a diarchy of power which Giovanni Sartori considers to be at the heart of semi-presidentialism. This choice pertains to an ensemble of constitutional provisions destined to establish a power-sharing system which political scientists such as Arend Lijphart (2004) consider better suited to foster inclusion and root democracy. These include, for instance, the adoption of proportional representation rather than first past the post electoral systems. However, few if any of the members of the assembly was familiar with sophisticated political science recommendations, and they all acted based on different, pragmatic arguments. Power-sharing is present in the political culture of Timor-Leste. Historians and anthropologists dealing with the issue of power and governance in the territory have established that the diarchy of powers is a longestablished social phenomenon (Traube 2019). When the Portuguese arrived in the island in early sixteenth century, they found two “kingdoms”—Belos/Wehali and Servião—which were not, as in the European experience, territorially demarcated entities based on mutual exclusion of sovereignty. Rather, they were units of power capable of peaceful coexistence given that they responded to different levels of governance (Mattoso 2005; Hägerdal 2012). Ricardo Roque interprets the Portuguese colonial domination grounded on indirect rule, where the European governor coexisted with local rulers, as a way of expressing “the native diarchy of powers” (2016: 57). For Judith Bovensiepen, the

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dual structure has been kept in contemporary bases for social organization, in association with other binary, complementary oppositions (2016: 83). Among those, one may recall the myth of the two brothers—the elder who stays behind, the younger who travels abroad. When both meet together again, the former assumes ritual power whereas the latter tends to be entrusted with political power (Traube 2007). In presentday Timor-Leste, in grassroots communities, two different power holders coexist: the liurai (lit., the owner of the land), a political leader entrusted with executive prerogatives; and the lia nai’n (lit., the owner of the word), normally an elder person who is revered for its moral power and who is supposed to hold the knowledge of the good rules governing the community. In this sense, Timor-Leste is far from the neighbouring Melanesian people who possess a highly centralized “Big Men” system (Sahlins 1963). A dual structure of power is thus easily understood. A more mundane and direct origin of Timor-Leste’s institutional choice refers to the history and politics of the Resistance. At the time the constituent assembly was drafting the law, the situation in the territory could be described in these terms: a strong, structured organization— Fretilin—dominated the party system, having polled 55% of the vote for the assembly, and commanded a comfortable majority (which was nevertheless insufficient to dictate the terms of the constitution without negotiations required for a 60% majority); alongside this party, the Resistance hero, Xanana Gusmão, a charismatic leader in Weberian sense, had a very significant popular following without being committed to any political party. In fact, Xanana Gusmão was Fretilin’s leader when he broke ranks with his party in the mid 1980s only to emerge as a national leader capable of entertaining relations with all strands of the increasingly stronger and more diversified Resistance (Niner 2009). In 1999, he refused to return to Fretilin (Alkatiri 2014), keeping his status above the party fray as CNRT’s chairman. The constituent assembly had the task to devise a government system in which both formal parties (most of all created expressly to fight the constitutional elections, with weak structures) and non-partisan personalities (Xanana is the leading example, but others like José Ramos-Horta, co-recipient of the Nobel Peace Prize in 1996 and the mastermind of the Resistance’s Diplomatic front would be another) could find a room. Also, it had to devise a system which would prevent the clash between

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charismatic forms of leadership, supported in wide popular mobilization, and legal-rational forms of legitimizing power. A dual system like semi-presidentialism made sense. Two structured proposals were presented to the Constituent Assembly—one by Fretilin, inspired by Mozambique’s experience, but significantly re-tuned as the strength of presidents is concerned and the other formally subscribed by PSD—Partido Social Democratico/Social Democratic Party—but actually designed in Lisboa by Jorge Miranda, one of the “fathers” of the Portuguese constitution. Fretilin’s project differed from the constitution of Mozambique—which presents the most powerful president in all the Lusophone countries with this type of system (Lobo and Neto 2009)—in that the party decided to revise presidential powers in order to limit those given that it considered highly unlikely it could aspire to win a presidential election in the near future. As Fretlin’s leader Mari Alkatiri put to me in an interview, Xanana’s refusal to re-join the party triggered his decision to seek to institutionalize a presidency with limited powers (Alkatiri 2014). In fact, Fretilin’s initial proposal reduced the president’s powers to little more than ceremonial. However, the assembly required compromises. It became apparent that Xanana could well refuse to serve as president—as was widely expected and could influence international actors to react angrily—should the powers of the presidency be severely limited. The project subscribed by PSD gave presidents substantial powers. A compromise had to be reached, and the final version comes mid-way between the two early proposals. Pedro Bacelar de Vasconcelos and Ricardo Sousa da Cunha have analysed the constitutional powers of the East Timorese president in the context of Lusophone semi-presidential regimes, and concluded this to be the weakest of them all (Vasconcelos and Cunha 2009). Elsewhere, I have discussed these results and argued they underestimate the actual powers of East Timorese presidents (Feijó 2016a). Still, there is agreement that a defining trait of the adopted system is the attribution of an array of competences to the president that are different from those entrusted to the executive branch, and that the presidency has been envisaged as an institution which should be above the “party fray”. To a significant degree, the presidency of Timor-Leste has been tailor-made for a peculiar situation—the desire to have Xanana Gusmão installed as president with no party links, and with an array of competences that would not directly interfere with the realm of the executive, which was dependent on party competition. However, once inscribed in the constitution, the

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model superseded the circumstances in which it was conceived and tended to gain traction as the norm which formats the behaviour of political agents. Emerging as a compromise between two projects that were both inspired by the Portuguese model, one cannot be surprised when reading Marina Costa Lobo and Octávio Amorim Neto’s claim that there exists a “Lusophone brand” of semi-presidentialism (2014).

Finale Institutional solutions designed at an early stage of the democratizing process—and in the case of Portugal, reaffirmed by president Soares in the wake of the constitutional revision—in response to a mix of sociopolitical conjunctures and structural elements (historical, sociological, cultural, political) have become associated with a grand historical narrative with normative implications. They have shown a high degree of resilience and adaptability to new situations. The conditions under which the government systems of Portugal and Timor-Leste were first conceived have evolved very significantly, and very young democracies have grown adult. Yet, despite a constitutional revision that redrafted presidential powers in Portugal a few years after the promulgation of the main law and henceforth kept the model in its basic shape for almost forty years, the main provisions of the system, namely the fact that presidents are not supposed to discharge executive functions but rather “moderating” functions and behave in an “independent” manner not directly attached to the competition between political parties, have been by and large maintained. A specific ethos is thus attached to the presidency that lays the foundations for its independence in regard to other organs of sovereignty. Marina Costa Lobo and Octávio Amorim Neto (2014) have posited that besides the direct involvement of Portuguese scholars from the field of constitutional law in the drafting of many Lusophone countries new constitutions in the 1990s, one finds a diffusion of a specific “brand” of semi-presidentialism. The effective dynamics of Lusophone semi-presidential systems is revealed when focusing on how heads of state deal with heads of government and parliamentary support for the executive. In this particular, the authors claim that there is a “family resemblance” among those regimes. The definition of the specific role of presidents within the system as structurally different from executive functions, as occurs in the cases of Portugal and Timor-Leste, can thus be considered one of the differentiating traits of the “family” and analysed in a comparative perspective.

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Feijó, R. G. (2016a). Dynamics of Democracy in Timor-Leste: The Birth of a Democratic Nation 1999–2012. Amsterdam: Amsterdam University Press. Feijó, R. G. (Ed.). (2016b). Timor-Leste: Colonialismo, Descolonização, Lusutopia. Porto: Afrontamento. Feijó, R. G. (2016c). Constitutionalism Old and New in the UN Kingdom of East Timor. In M. Buente & B. Dressel (Eds.), Constitutional Politics in Southeast Asia. London: Routledge. Feijó, R. G. (2017a). As eleições presidenciais e a consagração do estatuto independente do presidente da República. In C. P. Teixeira (Ed.), O Sistema Politico Português: uma perspectiva comparada (pp. 101–128). Cascais: Principia. Feijó, R. G. (2017b). Timor-Leste. In A. Reis, P. B. Santos, & M. I. Rezola (Eds.), Dicionário de História de Portugal – o 25 de Abril (Vol. 7, pp. 148– 165). Porto: Figuerinhas. Feijó, R. G. (2019). Timor-Leste 1945–2019: From an Almost Forgotten Portuguese Colony to the First Democratic Nation of the 21st Century. In Asia Maior (Vol. XXX, pp. 241–166). Freire, A., & Pinto, A. C. (2010). O Poder Presidencial em Portugal – o dilema do poder dos presidentes da República. Lisboa: D. Quixote. Gaspar, C. (1990). O processo constitucional e a estabilidade do regime. Análise Social, XXV (105–106), 9–29. Gouveia, J. B. (2005). As Constituições dos Estados de Língua Portuguesa (2nd ed.). Coimbra: Almedina. Hägerdal, H. (2012). Lords of the Land, Lords of the Sea: Conflict and Adaptation in Early Colonial Timor, 1600–1800. Leiden: KITLV Press. Lijphart, A. (2004). Constitutional Design for Divided Societies. Journal of Democracy, 15(2), 96–109. Lijphart, A. (2012 [1999]). Patterns of Democracy: Government Forms and Performance in Thirty Six Countries. New Haven: Yale University Press (New edition with important updates). Lobo, M. C. (2005). The Presidentialization of Portuguese Politics? In T. Poguntke & P. Webb (Eds.), The Presidentialization of Politics (pp. 269–288). Oxford: Oxford University Press. Lobo, M. C., & Neto, O. A. (Eds.). (2009). O Semi-presidencialismo nos Países de Língua Portuguesa. Lisboa: ICS. Lopes, P. S. (2013). O Pecado Original. O choque entre Belém e São Bento. Lisboa: D. Quixote. Lopes, P. S., & Capitão, G. D. (2001). Os sistemas de governo mistos e o actual sistema português. Lisboa: Difel. Lucena, M. (1996). Semi-presidencialismo: teoria geral e prática portuguesa. Análise Social, XXXI (138), 831–892.

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Martins, H. (2018). Reflexões sobre as Mudanças de Regime em Portugal no Século XX. Um estudo transnacional e transcronológico (R. G. Feijó, Ed.). Lisboa: ICS. Matos, L. S. (1983). Significado e consequências da eleição do Presidente da República por sufrágio universal. O caso português. Análise Social, XIX (76), 235–259. Matos, L. S. (1986). Le cas portugais de 1976 à 1983: le Président opposé à la majorité. In M. Duverger (Ed.), Les regimes semipresidentiels (pp. 209–236). Paris: Presses Universitaires de France. Mattoso, J. (2005). A Dignidade. Konis Santana e a Resistência Timorense. Lisboa: Temas & Debates. Miranda, J. (1978). Fontes e Trabalhos Preparatórios para a Constituição. Lisboa: INCM Moeda. Morais, C. B. (1998). As Metamorfoses do Semipresidencialismo Português. Revista Jurídica (Associação Académica da Faculdade de Direito de Lisboa), 22, 141–160. Morais, I., Almeida, J. M. F., & Pinto, R. L. (Eds.). (1984). O sistema de governo semi-presidencial: o caso português. Lisboa: Editorial Notícias. Moreira, A. (1989). O Presidencialismo do Primeiro Ministro. In M. B. Coelho (Ed.), O Sistema Politico e Constitucional (pp. 31–38). Lisboa: Imprensa de Ciências Sociais. Movimento das Forças Armadas [MFA]. (1974). Programa do Movimento das Forças Armadas. Accessed at www1.ci.uc.pt/cd25a/wikka.php?wakka=est rut07. Movimento das Forças Armadas [MFA]. (1975). 1ª Plataforma de Acordo Constitucional. Accessed at http://app.parlamento.pt/LivrosOnLine/Vozes_ Constituinte/med01100000j.hmtl#conteudo. Movimento das Forças Armadas [MFA]. (1976). 2ª Plataforma de Acordo Constitucional. Accessed at http://app.parlamento.pt/LivrosOnLine/Vozes_ Constituinte(med01120000j.html#conteudo. Neto, O. A., & Lobo, M. C. (2009). Portugal’s Semi-Presidentialism (Re)Considered: An Assessment of the President’s Role in the Political Process. European Journal of Political Research, 48(2), 234–255. Neto, O. A., & Lobo, M. C. (2014). Semi-Presidentialism in Lusophone Countries: Diffusion and Operation. Democratization, 21(3), 434–457. Niner, S. (2009). Xanana: Leader of the Struggle for Independent Timor-Leste. Melbourne: Australian Scholarly Publishing. Novais, J. R. (2007). Semi-presidencialismo. Vol 1: teoria do sistema de governo semi-presidencial. Coimbra: Almedina. Novais, J. R. (2010). Semi-presidencialismo. Vol 2: o sistema semi-presidencial português. Coimbra: Almedina. Pereira, A. G. (1984). O semipresidencialismo em Portugal. Lisboa: Ática. Pereira, J. P. (2005). Álvaro Cuhal: uma biografia política. Vol. III: o prisioneiro (1949–1960). Lisboa: Temas & Debates.

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Pires, F. L. (1987). O sistema de governo: sua dinâmica. In M. B. Coelho (Ed.), Portugal: o sistema politico-constitucional (pp. 291–319). Lisboa: Imprensa de Ciências Sociais. Pires, F. L. (1988). Teoria da Constituição de 1976. A transição dualista (Doctoral dissertation). Coimbra. Queirós, C. (2007). O Sistema de Governo Semipresidencial. Coimbra: Coimbra Editora. República Democrática de Timor-Leste. (1975). Constituição da Republica Democrática de Timor-Leste. Dili: Fretilin. República Democrática de Timor-Leste. (2002). Constitution of the Democratic Republic of Timor-Leste. Dili: Assembleia Constituinte. República Portuguesa. (1976). Constituição da República Portuguesa. Accessed at www.parlamento.pt/Parlamento/Documents/CRP1976.pdf. República Portuguesa. (2005). Constituição da República Portuguesa, [updated] in Diário da República, I Série A nº 155. Accessed at https://dre.pt/util/ pdfs/files/crp.pdf. Roque, R. (2016). O governo da linguagem ceremonial: costume e etiqueta no Timor-Leste colonial. In R. G. Feijó (Ed.), Timor-Leste: Colonialismo, Descolonização, Lusutopia (pp. 51–72). Porto: Edições Afrontamento. Sahlins, M. (1963). Poor Man, Rich Man, Big-Man, Chief: Political Types in Melanesia and Polynesia. Comparative Studies in Society and History, 5(3), 285–303. Sardica, J. M. (2012). A Carta Constitucional Portuguesa de 1826. História Constitucional, 13, 527–561. Sedelius, T., & Linde, J. (2017). Unravelling Semi-Presidentialism: Democracy and Government Performance in Four Distinct Regime Types. In Democratization. Accessed at https://doi.org/10.1080/13510347.2017.133 4643. Sousa, M. R. (1984). O sistema de governo português, antes e depois da revisão constitucional (3rd ed., revised and expanded). Lisboa: Cognitio. Traube, E. G. (2007). Unpaid Wages: Local Narratives and the Imagination of the Nation. Asia-Pacific Journal of Anthropology, 8(1), 9–25. Traube, E. G. (2019). Outside In: Mambai Expectations of Returning Outsiders. In R. Roque & E. G. Traube (Eds.), Crossing Ethnographies and Histories - Following Colonial Historicities in Timor-Leste (pp. 49–75). Oxford: Berghahn. Valente, V. P. (2002). Marcello Caetano: as desventuras da razão. Lisboa, Gótica. Vasconcelos, P. B., & Cunha, R. S. (2009). Semi-presidencialismo em Timor: um equilíbrio institucional dinâmico num contexto crítico. In M. C. Lobo & O. A. Neto (Eds.), O Semipresidencialismo nos Países de Língua Portuguesa. Lisboa: ICS. Vitorino, A. (1984). Os poderes do presidente da República na Constituição portuguesa actual. Accessed at www.biblio.juridicas.unam.mx/libros/2/899/ 39.pdf.

CHAPTER 3

Electing Presidents with “Moderating Power”

Abstract The way presidents are elected constitute a main trait distinguishing the realm of their status. Presidents are directly elected and require an absolute majority to win. Legislative elections use proportional representation and are associated with fragmented party systems that seldom return absolute majorities. Presidents cannot rely solely on the party they happen to be affiliated with (or not), and must build broad electoral platforms and base their appeal on individual reputation. Successful presidential candidates present themselves as distanced from any political party. They are not party leaders, and do not behave as “party agents”. Presidential elections do not attract less popular participation than legislative ones, and should not be classified as “second order”. The individual legitimacy of presidents thus elected is very high. The second part examines the complex relation between presidents and the party system, including instances of “independent” presidents stepping down and forming new political parties to enter the competition for the premiership. The final section places the cases of Portugal and TimorLeste in broader comparative perspective, and speculates on scenarios in which similar solutions may emerge. Keywords Presidential electoral systems · Electoral participation · Individual legitimacy · Presidents and political parties · Presidents as moderators

© The Author(s) 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5_3

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In democratic presidential republics, the ways in which presidents are elected represent a critical element to understand the workings of the government system. Under semi-presidentialism, electors are called to cast a direct vote for the president. Most often, an absolute majority of the vote is required to proclaim the winner. According to Passarelli (forthcoming), that happens in 77.45% of the cases. Some countries use preferential systems. Ireland uses STV (Single Transferable Vote) vote to avoid a second ballot. Others, like Iceland, adopt first past the post systems and disregard absolute majority. Portugal and TimorLeste are among the countries that stipulate for the need to obtain 50% +1 of the votes. The Constitution the Portuguese Republic (CRP section 126.1.) determines that the candidate with the absolute majority of legally expressed votes, excluding blank votes,1 shall be declared the winner. The Constitution of the Democratic Republic of Timor-Leste (CRDTL section 76.2) stipulates exactly the same. In case no candidate obtains such a score, a runoff election will be held. The need for an absolute majority in presidential elections is a critical stipulation of Portuguese and East Timorese political systems, and is accompanied by the adoption, in each of these countries, by a different approach when it comes to legislative polls. Presidential elections must therefore be understood in close relation with other polls, as they have an individuality that emerges very clearly in comparative contexts. Proportional representation has been chosen as a system to apportion seats in legislative elections.2 As theoretically anticipated, both countries have fragmented party systems, and absolute majorities have been rare events. As of 2020, Portugal has ten parties sitting in the Assembly of the Republic. Under the Second Republic, fifteen legislative elections were held, and only three returned a single-party majority (one of them with only 45% of the vote, benefiting from the workings of the d’Hondt method coupled with low district magnitude). Pre- or post-electoral

1 In general, “blank votes” are considered as legally expressed votes. However, in the special case of presidential elections, these are not counted as such. This detail has been consequential in Cavaco Silva’s first presidential victory: he scored 50.5% of the “legally expressed votes” excluding blank votes; had these been counted (they were in excess of 1%) as in other elections, a runoff would have been necessary. 2 In the case of Portugal, this is also true for regional and local elections.

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coalition governments (10) or minority executives (7) have dominated.3 However, the number of effective parties, which started at 3.47 (1976) and went as high as 4.23 (1985) was down to 2.31 and has kept reasonably stable—below three—till now (Lobo et al. 2017). In TimorLeste, with eight parties currently in the assembly, only one election in five returned a single-party majority—the very first one. Governments based on coalitions—pre- or post-electoral—account for five of eight governments, the other three occurring when there was a single-party majority. In contrast, presidential elections in Portugal have almost always returned a winner on the first ballot: it happened in eight of the nine polls. Only the very competitive 1986 election fought solely by civilian candidates for the first time in sixty years required a second ballot which Mário Soares won by a whisker, turning a second-place finish in the first round (25.4%) into victory with 51.2%. Also important is the fact that, as a rule, there was no coincident majority between presidential and legislative polls. For instance, in 1991 the centre-right PSD—Partido Social Democrata/Social Democratic Party obtained its second consecutive majority, and in the same year President Soares, coming from the left side of the spectrum, reached over 70% in his re-election. In 2005, the Socialist Party won its only majority, and a few months later the rightwing candidate Cavaco Silva scored a victory in the first round. A popular narrative has emerged out of successive oppositions between legislative and presidential elections results: the people “do not like to place all the eggs in the same basket”. In fact, only once was there a case of a “coattails” effect, when Cavaco Silva dissolved the assembly shortly after being re-elected (2011) and the right-wing parties that had endorsed him were returned to power. Timor-Leste has a different experience: two elections were decided on the first ballot (2002 and 2017), two required a runoff (2007, 2012). However, Xanana Gusmão—the charismatic Resistance leader— was always on the winning side: first, securing for himself a landslide in 2002 (78.5%), later endorsing all the candidates that eventually won the election. The first presidential election took place when Fretilin enjoyed a clear majority in the assembly, and the party did not endorse the winning candidate. The last one, again decided on the first ballot, witnessed an 3 During President Ramalho Eanes first term (before the 1982 constitutional revision), there were three “governments of presidential initiative” formed by “independents”.

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unprecedented convergence between Fretilin and Xanana Gusmão, two actors who had been on opposing sides in all previous elections. The contrast between presidential and legislative elections suggests that these are indeed independent polls, and are perceived by the electorate as entailing different attributes. The very first element to take into consideration is the conditions under which candidatures are filed. The Portuguese constitution (CRP 1976, article 127.1; presently article 124.1) established a rule: all candidates must present their bid in a personalized form, sustained by at least 7500 registered electors. This is a clear contrast to the virtual monopoly granted to political parties— that were then in the process of formation and social rooting in other spheres of intervention and required legal protection, which subsists to this day—to field candidates (Magalhães 2003). The requirement of direct, personalized support cannot be replaced by party endorsement (although parties can be active in collecting signatures to help candidates). Timor-Leste has adopted a similar model. CRDTL section 75 stipulates that each candidate must receive the active support of at least 5000 electors. The electoral law for the president of the Republic (Law 7/2006) further states that among these there must be at least 100 from each of the thirteen districts in order to ensure a minimum of national representativeness. This bill further states in its introduction that it aims to “stresses the independent and supra-partisan character of the presidential magisterium which is transmitted by the obligation of candidates to be proposed by a minimum of 5,000 electors”. It is telling that the law should spell out so clearly what the purpose of its mechanism actually is. The legal requirements have a clear political reading: candidates must prove they have individual capacity to secure support. They are supposed to reveal some form of independence vis-à-vis political parties. These requirements were formulated at an early stage of the democratization process of both countries. They made it possible for non-partisan candidates to emerge—in Portugal, a military which is by definition nonpartisan; in Timor-Leste, the charismatic Resistance leader who was not, at the time, member of any specific political party. As such, at the roots of democratic presidencies the notion was very alive that candidates should not represent political parties, but entertain direct, individualized relations with the electorate. No prohibition was established regarding the possibility of parties supporting or even presenting their own presidential candidates. They may mobilize their members in the collection of signatures required for the candidature to be accepted—although by and

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large candidates try to avoid transmitting the idea that they are somehow dependent on any party machinery. Financial considerations are also relevant. The paradigmatic case was that of Diogo Freitas do Amaral in 1986, who was supported by PSD and its leader. However, Cavaco Silva refused to contribute for the campaign outstanding debts in excess of the public subvention. Official public subventions minimize the need to secure party financing.4 The stage for candidates with winning ambitions is clear: they need to generate political coalitions going beyond single-party support, based on a direct appeal to the electorate. That principle remains true to this day.

Electors Valuation of Presidential Elections Not all elections are equal. Citizens value some polls more than others, and this appraisal may be translated in the way voters turn out to perform their civic duty. The underlying assumption is that the more significant electors deem an election to be, the higher their participation in the polls. In this light, analysing in a comparative way the level of electoral participation in presidential and legislative elections may gauge the public perception of the importance presidents assume within the political system. That’s precisely what we shall do next. Before we move on to empirical data, two notes of caution are required. There is an established, common sense type of narrative with significant number of followers in Portugal and Timor-Leste stating that personalized elections, of which presidential elections are the epitome promoting the candidates’ personality to the fore—or, to use the words of Samuels and Shugart (2010), “a personal reputation distinct from the party’s collective reputation”—given that presidents are the sole single person job in democratic regimes, all others having a collective character, provide a more direct interlocution with citizens. These may find it easier to identify with or oppose a given candidate, prompting a more significant degree of public mobilization. Partisan elections, in which personalities 4 The Portuguese 2016 presidential election is paradigmatic. Marcelo Rebelo de Sousa ran a “frugal” campaign (circa e150,000) without any party assistance. At the end, the public subvention he was entitled to in virtue of the number of votes he received was above his official campaign expenses. Likewise, António Sampaio da Nóvoa, the runnerup with a score in line with what had prompted Soares to a runoff in 1986, organized the collection of signatures without party support and paid for his campaign with the public subvention (about e700,000).

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are somehow diluted into a collective “party” are supposed to elicit a lesser degree of mobilization. The issue of “personalization” in politics has generated a vast literature which partially impinges on the electoral aspect under consideration in this section. To a large extent, this issue is also associated with an alleged “presidentialization of politics”—an elusive concept recently discussed by Elgie and Passarelli (2020, esp. 363–367). Margit Tavits (2009: 237) has cast doubts on the possibility of generalizing from a number of instances in which this seems to have been the case, and, much as this may sound against popular wisdom, no rule is to be expected. Consistent differences in political mobilization between elections of diverse natures have been summoned as the basis on which Reif and Schmitt (1983) have grounded their proposal for a distinction between “first order” and “second order” elections (see also Marsh 2000). Electors are supposed to understand that some sort of elections imply larger and more significant impacts on their country’s political life than others, and mobilize accordingly. Among the elements that tend to vary from “first order” to “second order” election, participation is a key one. What is the nature of presidential elections in semi-presidential regimes? Do they fit in the “first order” group, or rather, are they “second order elections”? More precisely: how should one interpret the comparisons between presidential and legislative elections in countries where the presidency is entrusted with “moderating power”? Tables 3.1 and 3.2 present data on all presidential and legislative elections in Portugal and Timor-Leste. Rather than providing estimates for abstention or participation rates, the option has been to show rough numbers of participants. The reason is quite straightforward: in both Portugal and Timor-Leste electoral registers are prone to overestimate abstention by their inability to remove duplicate registration (for instance, when an elector moves to another place) and deceased electors. Every now and then, administrative action is taken to “cleanse ghost voters”, but this is not performed regularly, and the distortion on rates that take as their bases the overall number of registered electors is substantial.5 Using

5 For instance, in 2019 the Portuguese electoral register contained more than 10.8 million electors, whereas the resident population (all ages) in 2018 is less than 10.3 million. Of course, there are migrants registered as electors outside the mainland, but still the gap between adult population (aged 18 and over) and the total number of electors is very marked. For the actual number of Portuguese registered voters to be determined,

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Table 3.1 Electoral participation Portugal 1975–2019

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Year

Presidential

1975 1976

4.881.125

1979 1980 1983 1985 1986 1987 1991 1995 1996 1999 2001 2002 2005 2006 2009 2011 2015 2016 2019

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Legislative 5.711.829 5.482.723 6.007.453

5.840.332 6.026.395 5.707.695 5.796.929 1st round 5.742.151 2nd round 5.937.100 5.676.358 5.098.768 5.735.431 5.904.854 5.762.978 5.415.102 4.449.800 5.433.924 5.713.640 5.590.132 5.681.258 4.492.453 5.408.805 4.740.558 5.092.424

Source Feijó (2017: 133); Comissão Nacional de Eleições, Secretariado Técnico dos Assuntos Eleitorais, Secreatria Geral do Ministerio da Administração Interna

actual figures for voters minimizes the risks of administratively biasing social realities. Figures from Table 3.1 are rather suggestive. First, there is a progressive reduction in the number of citizens who care to vote. This is somewhat more marked in the case of presidential than legislative elections. Second, presidential elections in which an incumbent is running

a serious administrative decision was made in 2018: to include all emigrants holding a Portuguese identity card. This decision included in one move circa 1.1 million people in the register. Conversely, several estimates put the number of real “ghosts” at circa 1 million, with periodic fluctuation in their totals.

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Table 3.2 Electoral participation Timor-Leste 2001–2018

Year 2001 2002 2007

Presidential – 378.458 1st round 403.941 2nd round 409.923

2012

1st round 464.661 2nd round 449.879

2017

528.813

2018

–

Legislative 356.190 –

415.604

482.792 583.956 635.116

Source Secretariado Técnico dos Assuntos Eleitorais (Timor-Leste)

for a second term (1991, 2001, 2011) tends to elicit a smaller number of voters than those in which all candidates stand on an equal footing— the exception being the 1980 election, the first to really oppose left and right, albeit through military candidates. The 2016 presidential election also returned a president with a small number of voters (an issue debated in Feijó 2017: 114–115). Before the last presidential election, Carlos Jalali (2011) suggested a rationale for the smaller level of participation in elections without incumbent candidates: in view of the general rule that grants victory to incumbents, candidates who have strong claims to the presidency prefer to wait for the next electoral cycle, and “lesser” candidates take their place, provoking a smaller wave of enthusiasm in the electorate. The most relevant suggestions, however, pertain to the comparisons between presidential and legislative polls. Except for the 1986 presidential election—the only one so far to require a runoff—that deeply polarized Portuguese society along a left/right axis, and which generated slightly higher turnout than legislative polls either before or after that date, all other presidential elections fell short of the number of voters participating in parliamentary elections. Pedro Magalhães and Braulio Gomez Fortes compared the results for both sets of elections up to 2005, and found out a mean difference of 5.1% (2005: 896). In itself, a 5% deviation is perhaps not sufficient to draw a curtain between the two sets. Moreover, if one excludes the elections in which an incumbent was running, “the difference evaporates” (Magalhães 2007). Other scholars, André Freire and

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António Costa Pinto, have calculated the correlation of electoral participation between presidential and legislative elections, oscillating between 0.93 (1976–1982, that is, before the constitutional revision) and 0.97 between 1982 and 2010 (Freire and Pinto 2010: 96). In brief: there seems to be no reason to conclude that Portuguese electors would react in significantly different manners to presidential and legislative elections as far as participation is concerned. By this token, there is no ground to suppose presidential polls might be considered as “second order” elections. Just like in Portugal, presidential elections in Timor-Leste seem to mobilize a slightly smaller number of citizens to the polls. In 2002, Xanana Gusmão managed to mobilize more citizens to the polling stations that the previous elections for the Constituent Assembly—the very first elections in the novel country. But Xanana Gusmão is an exceptional personality and holds a unique place in the political landscape of Timor-Leste as the undisputed leader of the Resistance to Indonesian occupation after the death of Nicolau Lobato (born 1946) on December 31, 1978. Xanana is a charismatic leader in Weber’s terms, his influence transcending several layers of political divide, even after he inspired the creation of a specific political party in 2007 (CNRT—Congresso Nacional para a Reconstrução de Timor-Leste/National Congress for the Reconstruction of Timor-Leste)—not surprisingly, adopting the same acronym of the disbanded Resistance umbrella organization, Conselho Nacional da Resistência Timorense/National Council of the Timorese Resistance. Both in 2007 and 2012, presidential and legislative elections were within less than a 5% margin of difference. In fact, only in 2017—perhaps the least competitive presidential polls given the unprecedented agreement between Xanana Gusmão and Fretilin that turned the polls into a formality6 —did the difference in mobilization surpass the 10% mark. For some observers in Timor-Leste, the widespread certitude of the electoral result that had never been felt so acutely, induced higher abstention. The overall picture, even though still grounded on few cases that call for extreme caution, suggests that, as far as electoral participation is concerned, there is not a structural divide between presidential and legislative election in Timor-Leste, and no reason emerges to consider

6 In Robert Elgie’s blog on presidential powers I wrote a piece on those elections under the title: “Snow White and the seven dwarfs”.

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that the East Timorese downgrade presidential polls to “second order” ones. The suggestion emerging from both tables is that Portuguese and East Timorese citizens value presidential and legislative election roughly on par, cyclical movements involving incumbent presidents running for a second term interfering in the overall picture without impairing the structural value of the suggestion. Presidents are, thus, first-rate actors in the eyes of the electors.

Presidents and Parties Maurice Duverger, in a scantly quoted piece, reflected on the structure of the French political system and suggested that one of its main features resides in the fact that [i]n France […] all the party system and the majoritarian mechanism have been organized around the election of the president by universal suffrage. (1996: 510)

In this context, parties consider the presidency to be the most coveted prize, and choose as their leader individuals who aspire to become presidents and possess individual characteristics that potentiate such goal. As Bachelot and Haegel put it, French parties “must now adopt and work with the imperative of selecting a candidate capable of winning presidential elections. [They] could therefore be described as ‘president-seeking’ organizations” (2015: 92). In fact, “French political parties did take control of the presidential race” (idem: 89). A comprehensive view of the political system must thus comprise a clear understanding of the party system and the ways in which it is interrelated with institutional predicaments. It is not sufficient to postulate, in line with Passarelli, that party systems differ according to the nature of the regime—presidential, semi-presidential or parliamentary. It is necessary to explore the variation within the various modalities of semi-presidentialism. This is particularly necessary as in semi-presidential regimes presidents do not control directly the assembly, and parties may—or may not—emerge as “the crucial tool that presidents have in dealing with the legislature” (Passarelli 2019: 4) What has been observed for France does not cover all the possibilities in semi-presidential democratic polities. As far as Portugal is concerned,

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Jalali suggested that “[t]he position of prime minister has been the central locus of political leadership throughout the democratic period and remains the key political prize for parties” (2011: 160). As such, party leaders are chosen as a function of their ability to fight legislative elections and discharge prime ministerial functions. Presidential elections pose a different kind of problem, and candidates receiving party support are not, as a rule, party leaders, nor are they actively involved in party activity. They need to have personal prestige, but in the cases under consideration, they are not “the most eminent politician in a party” (Passarelli 2019: 6). Timor-Leste follows the Portuguese model, and the party landscape is organized around candidates for the premiership. Retrieving—and paraphrasing—Bachelot and Haegel’s words, one might say that political parties in Portugal and Timor-Leste are “prime-minister seeking organizations”. This characteristic approaches Portugal and Timor-Leste to a parliamentary form of party organization. Presidential hopefuls need other sort of personal characteristics.7 The reason why political parties in Portugal and Timor-Leste place the premiership as the most coveted prize is that executive power is concentrated in prime ministers, presidents having historically been assigned other type of functions.8 Bear in mind what the constitutions stipulate. CRP section 182 reads: The government is the organ that guides the general policies of the country and the superior organ of the public administration9

7 In parliamentary republics, the position of president is generally given to a prestigious figure who is not a party leader. There is this degree of similitude between parliamentary republics and semi-presidential ones in which presidents are vested with “moderating power”. 8 This is not the case in all semi-presidential regimes. In France, one of the most quoted

examples, the presidency is the key political position, and parties are organized around a leader who aspired to the presidency rather than the premiership. 9 The locution “government” is polysemic. In the Anglo-Saxon world it normally has a meaning that significantly differs from the one prevalent in Latin countries. In English, it has a broader sense, comprising “the group of men and women who are in charge of the different sectors of the public services” (Blondel 1982: 14 quoted in Passarelli 2010: 404). This sense is used in expressions such as “divided government” in presidential regimes. In Latin Europe and beyond, such a broad concept would be labelled “State”. Pierre Bourdieu refers to the State as “the site of all political actions which aim at having an impact in the social world” (2012: 26). In this context, the “State” has various branches, one—just one—of which is the “government”. One may consider that the

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In Timor-Leste, the constitution echoes the same principle (section 103) The government is the organ of sovereignty responsible for conducting and executing the general policy of the country and is the supreme organ of Public Administration.

By contrast, presidents have more diffuse powers. CRP section 120 reads The President of the Republic represents the Portuguese Republic, guarantees national Independence, the unity of the State and the regular functioning of democratic institutions and is, by virtue of his position, the Supreme Commander of the Armed Forces.

CRDTL defines the presidential function in much the same vein (section 74) 1. The President of the Republic is the Head of State and the symbol and guarantor of national independence and unity of the State and of the smooth functioning of democratic institutions. 2. The President of the Republic is the Supreme Commander of the Defence Force.

Unquestionably, executive functions are reserved for the government headed by a prime minister, and presidents are supposed to discharge different functions that will be addressed in detail in Chapter 4, below.10 Modern democracy is exercised, to a large extent, through a system of political parties. Parties are “institutions that bring together people for the purpose of exercising power within the state” (Ware 1996: 2).

“government” in this narrow sense is akin to what the Anglo-Saxons call “cabinet”. For Bagehot (1876, quoted in Passarelli 2010: 405) this is “a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation”. As such, the “cabinet” is, par excellence, the organ of sovereignty entrusted with executive power. In this book, the term “government” is used in the narrow sense, similar to “cabinet” (although a “government” may have more members—prime minister, deputy prime ministers, ministers, junior ministers—than a proper “cabinet”). The “Council of Ministers” in Portugal and Timor-Leste sits only part of the extended government. 10 Gianluca Passarelli has proposed a telling comparison between the “governments” of France and Portugal, pointing to significant differences in the sense attributed to this term in each of those countries, as well as to the specific forms of relation between presidents and prime ministers under similarly semi-presidential systems (Passarelli 2010).

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But not all state power is supposed to be exercised through political parties. In a great number of democracies, judicial power is thought of as an independent institution not reliant on public elections.11 In contrast, democracies stand on the principle that legislative and executive power are exercised by individuals chosen through competitive elections for which parties contribute if not as the sole actors, as main players. Comparative politics is commonly biased to value the role of political parties in democracies. However, this book argues that attention to political parties need not be the whole picture as it may induce a bias that distorts the actual performance of political mechanisms. Competitive elections need not reserve parties the right to participate: these can be open to citizens in other capacities. Much depends on the context. But in general, parties are the institution that aggregates public choices, and as such they are critical wherever legislative and executive functions are concerned. In other areas of power exercise within the state, their function need not be so prominent. In 1976 Portugal, the party system was feeble, generally very young, and its social rooting not particularly significant. These circumstances led most of them to devise strategies of social implantation based mostly on the control of the state apparatus and not so much through an independent apparatus rooted in mass mobilization (Magalhães 2003: 184, 193). All but one of the main parties—and certainly those espousing a liberal democratic approach—had been created either on the eve of the Revolution under strict clandestine conditions (socialist party, created in exile in 1973), or immediately after it (PPD/PSD in May 1974, CDS in July), and were then in a phase of juvenile affirmation.12 The obvious exception is the Communist Party (PCP), formed during the First Republic, in March 1921, which possessed the better organized social basis and party machinery. This was not an individualizing feature of the Portuguese transition to democracy, as many other countries experienced similar lack of partisan experience during the “third wave of democratization”. One 11 Both in Portugal and in Timor-Leste, there are no popular elections for any position within the judicial system. The USA is a paradigmatic case in which the judicial depends on elections for key positions. 12 A joke was told in Portugal in 1975 based on a linguistic pun suggesting that the communist party had militants (a word that evokes the number one thousand—“mil”) while the other parties had only “centitantes” (a neologism meaning “a hundred or so”). In 1980, the communist party membership alone almost doubled that of PS, PSD and CDS combined (Mair and van Biezen 2001: 19).

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should not forget that the last democratic experiment had collapsed in 1926, half a century before. Portugal persisted with a low ratio of party members per electors: in 2000, this ratio was 3.99 whereas the mean European ratio was 4.99. The figure for Portugal suffered little variation between 1980 and 2000 (see Mair and van Biezen 2001: 9, 12). In this context, the party system could not aspire to monopolize the expressions of popular will, which tended to experiment with other channels to make itself heard—a circumstance that military from different persuasions tended to capitalize upon not only in the first months after the revolution, but till the end of the transition period. This fact was expressed, for instance, in the radical candidature of Major Otelo Saraiva de Carvalho in the 1976 presidential elections, where he polled 16.5%, alongside the centrist Admiral Pinheiro de Azevedo, who scored 14%— both without any major party’s endorsement. The three major parties of the regime, from the right to the centre-left, which would dominate the political landscape for many decades, endorsed General Eanes who scored 61.5%. The second democratic presidential election was again disputed between two generals with major partisan endorsements, although several minor candidates entered the race. On the other hand, the adoption of proportional representation in legislative elections facilitated the fragmentation of the party system and made the emergence of single-party majorities quite unlikely. The issue of political fragmentation was further compound by the fact that the left side of the political spectrum included a party—PCP—which, as a result of its positions during the height of the revolutionary period, had been excluded from participation in government solutions, the so-called “arch of government” which lasted until 2015.13 Only local government was open to the communists (who held strong positions in the Lisbon industrial belt and the southern Alentejo region). This fact limited the options of one of the major players in the Portuguese parliament—the socialist party—who did not wish to be a prisoner of alliances with the right-wing parties and needed to explore the chance of forming minority governments to guarantee effective alternation. The consequence was the need to contemplate minority governments and the critical negotiations that 13 In 2015 the socialist party entered a confidence and supply agreement with the communist party and the Left Bloc to sustain a minority executive. It was the very first time since the approval of the constitution in 1976 that the parties to the left of the socialists were involved in a government solution.

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might sustain them. The consecration of “presidents without majority” who might stand above the party fray and discharge moderating functions separated from executive power reserved for political parties was thus a welcome additional device to make the system work. It is also relevant to consider the specific type of parties that emerged in the wake of the Carnations Revolution. The communist party is a very centralized one, with a clear ideological mark; once capable of polling one-fifth of the vote, it has significantly decreased its importance and now hovers around 5%. On the other extreme, CDS is a party of cadres, emerging from the reconversion of members of the old regime and fluctuating between Christian democracy, economic liberalism and right-wing populism; in its best performance, it polled about 16% and at present it is down to 4%. CDS has been a junior partner in several governments. PS and PSD are “government parties” with broad appeal—one a typical social democratic party (PS), the other (PSD) a combination of various political strands, capable of moving between the centre and the hard right. Both share the monopoly of the premiership (with the exception of president Eanes “governments of presidential initiative” in 1978–1979), and are mostly decentralized and not fundamentally marked by strict ideological obedience. This party system contributed to the frequent emergence of “presidents without a party”, that is, “a situation in which the candidate who won the presidential election does not have any party under whose label he or she stood for election [and] consequently does not have a corresponding political partner in the legislative branch” (Passarelli 2019: 13). The direct election of the president, mainly if he was a personality characterized by his independence vis-à-vis political parties, emerged as a solution capable of rationalizing institutional life and mitigate weaknesses of a young party system. The presidential prerogative to choose a prime minister (which was reduced in 1982 but not altogether abandoned), combined with the fact that prime ministers are not required to submit their programme to a vote in the House permitting investiture “by default”, represents an element of flexibility for political solutions, allowing for minority governments to be installed and rule, and facilitating a rotation of majorities that did not imply a formal left-wing coalition between socialists and communists. Under these terms, one might conclude that the institutional model adopted in the 1976 Pact and later in CRP represented a short-term response that rose above its time

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as it proved well adapted to systemic needs of the nascent Portuguese democracy. Even some elements that might appear time-bound, like the “independent” nature of presidents, turned out to be enshrined in the matrix of the political system by means of a grand historical narrative that praises the virtues of this solution. It influences the way in which parties chose their candidates, and the ways in which electors assess candidates. As Luís Paixão Martins, an important media consultant with substantial experience in Portuguese elections said, the role of the President of the Republic as a referee implies that the perception of the candidate as an independent person becomes an electoral advantage. For this reason, when the candidates are “professional politicians” and prominent members of political parties […] electoral marketeers tend to work on the creation of an image of independence. (Expresso E 2223, 6 June 2015: 31)

The extent to which the marketeers’ work creates a veritable fig-leaf hiding deeper facts that would be negatively perceived by the citizenry or legitimately stress some features that might be obscured will be discussed further down. Suffice it to note that the perception of “independence” is a major factor in presidential election. In Timor-Leste, political parties were hastily formed in 2001 when the UN administration decided that the way forward implied competitive elections for a constituent assembly (Feijó 2016a: 149). Fretilin was the only political organization that benefitted from a quarter century of experience, even though living now under quite different circumstances. All other streams of opinion which had emerged during the period of Indonesian occupation, or had turned against the situation, were offered a few weeks to register and more than that, to establish themselves as independent organizations. The move was criticized by a significant number of players as generating artificial situations in order to please the “international community” and its template for liberal democracy, and very relevant individuals refused to form or join any such organizations. Xanana Gusmão and José Ramos-Horta are but two of them. Their attitudes exposed a basic fact: the emerging party system was feeble and could not aspire to represent all options. An attempt was made to circumvent this situation, as non-partisan candidates were offered a chance—albeit

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a very limited one—of participating in the constitutional elections.14 However, this was later removed from the electoral law, and legislative elections are now open to parties only. Presidential elections, however, could not follow the same route, as pressures for the election of Xanana Gusmão came from various corners. It was decided that presidential elections would therefore be open to non-partisan candidates who could be better identified with a society which seemed to have little esteem for partisan politics. In fact, the formation of political parties was to a large extent associated with the memory of the brief but bloody 1975 civil war. This danger required that measures be adopted to contain the potential for division along party rivalries. The scene was set for a special role to be entrusted to non-partisan presidents with competences in the realm of “moderating power”. The ensuing political landscape of the country saw the emergence of new political parties—namely those formed by presidents Xanana Gusmão (CNRT formed in 2007) and Taur Matan Ruak (PLP formed in 2017). All the relevant political parties in the country are dependent on the prestige of their leaders, highly centralized, and have little ideological consistency. To a large extent, parties in Timor-Leste are an extension of strong personalities. Presidential Parties Much as a constitution may be clear—and often it is not—in the definition of presidential powers and competences,15 eventually complemented by ordinary legislation touching upon the same reality (for instance, defence laws that “translate” the concept of supreme commander of the armed forces in pragmatic terms), the critical political fact is that the direct election of presidents, coupled with the need to guarantee an absolute majority of the votes, generates a powerful incentive for presidents to have a loud voice in the political arena. Presidents have a justification to claim a strong personal legitimacy. Both in Portugal and Timor-Leste there are 14 In those elections, Timor-Leste voted for 75 parliamentarians using a national constituency and the d’Hondt method to apportion the elected; on top of that, each of the 13 districts elected one representative on a first past the post election open to non-partisan figures. Only one of these 13 elected MPs was an independent candidate. 15 In Portugal, and to a lesser extent in Timor-Leste, there is a seemingly endless debate about the “implicit” (as opposed to “explicit”) powers of presidents, precisely because some sentences in the constitution are not clear about their own practical implications, and are thus subject to interpretation.

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experiences of presidents who were elected as non-partisan individuals and grew frustrated with the limits of their constitutional mandate. General Eanes thought his competences as president had been severely curtailed by the 1982 revision of the CPR.16 After that revision, he instigated the formation of a new political party, and when he stepped down from the presidency he became its leader and fought legislative elections with the aim of eventually becoming prime minister. The “presidential party”17 was born while General Eanes was still in office, scored a significant result (18%) in the 1985 elections, becoming the third largest party in parliament, and disposed of the power to decide on the survival of a minority government led by Cavaco Silva (PSD). Two years later, with the former president as its formal head, this party plunged to a mere 5%, lost political relevance in the face of Cavaco Silva’s first absolute majority, and was later disbanded. In Timor-Leste, similar situations occurred twice. Xanana Gusmão was the country’s first democratically elected president. During his term in office (2002–2007), a major crisis erupted that pitted the president against the prime minister. In the wake of that crisis, Xanana decided not to seek a second term. Rather, he inspired the creation of a new political party—CNRT (Congresso Nacional para a Reconstrução de Timor-Leste/National Congress for the Reconstruction of Timor-Leste). In the first legislative elections, CNRT became the second largest party in parliament, and thanks to a post-electoral coalition Xanana was sworn in as prime minister. He would lead the IV and V Constitutional Governments, and be a simple minister in the next one. CNRT has performed well in legislative elections, being either the first or second largest party in 16 This issue is discussed in detail in Chapter 2. 17 “Presidential parties” in the sense used in here differ from the definition proposed

by Gianluca Passarelli (2019). Passarelli used the term to refer to “the organization that selected and supported a candidate who ran under its label and who subsequently became president” (2019: 2). It refers to the modalities of presidential political attitudes while in office. In this section I refer to parties created by presidents to further their political views after the end of their term in office. Paradoxically, the “presidential parties” in Portugal and Timor-Leste to which I am referring, created in order to try and institutionalize charismatic elements of presidents—and to that extent they are parties that ultimately cannot either “choose” nor dismiss their leaders,—do not sustain a “presidentialization” of those regimes but rather the importance of the premiership. The creation of those new parties without an intention to change constitutions stresses the fact that in both countries the leadership of parties is organized around candidates to the premiership rather than the presidency.

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all legislatures from the second onwards, and participating in all executives except the short-lived, minority VII Constitutional Government. Ten years later, President Taur Matan Ruak followed the same route. As president, he had become increasingly distant from a government he has been credited with significantly helping to create, to the point of vetoing a budget that had been unanimously approved by parliament. In order to pursue his political ambitions, he gave his blessing to the creation of a new party—PLP, Partido da Libertação do Povo/People’s Liberation Party. This new party scored a modest 10% in the 2017 legislative elections, joining other parties in a post-electoral coalition that brought down a minority government and triggered early elections. In the 2018 poll, PLP ran in a pre-electoral coalition with Xanana’s CNRT and a smaller party, KHUNTO. The coalition obtained the majority of seats in the House, and despite the fact that CNRT had more deputies than PLP, Taur Matan Ruak became the prime minister of the VIII Constitutional Government. Regardless of the success of these “presidential parties”, which varied significantly, they all share a common trait: former presidents who inspired them became convinced that the best way to influence the direction of the countries’ policies was to step down and fight for the premiership, the job that concentrates executive competences. It has been established that “the genetic nature of a party is a relevant factor in explaining parties’ features and organization” (Passarelli 2015: 112), including the role of charisma in the party’s formation—as is the case with these examples. Curiously, none of the three presidents we are referring to made proposals for constitutional revisions that would redraft—and increase—their powers, and accepted to play by the established rules. A local commentator in Dili referred to their ambition to switch positions as the “syndrome of the wrong palace”: in the presidential palace, room to take initiatives on fundamental policy choices is limited, but in the government’s palace those competences are the hallmark of office holders, even if presidents are in a position to impose some sort of conditions, and thus, limits to executive power. In this context, one may regard the decision of presidents to step down and fight for the premiership as a strong sign that they acknowledge that there is a fundamental difference in the nature of the powers entrusted to the Head of State and to the Head of Government—the distinction between executive and moderating power.

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Contexts for the Emergence of Presidents as Moderators Having examined the ways in which the notion of a “moderating power” emerged in Portugal and Timor-Leste and found way into their institutional and political systems, it is now possible to speculate on which are the circumstances that may favour such a political solution in broader contexts. Two sorts of roots will be considered for the emergence of presidents who are supposed not to perform as party agents and to embrace a “moderator” position: one relates to systemic features of the electoral system of different countries, the other to conjunctures that historically mark the life of democracies. Systemic Features The key element to consider, from a systemic point of view, is the degree to which the relevant political institutions—and in particular the electoral legal framework—are more or less candidate centred or rather partisan driven (Brancati 2008). To put it differently, one needs to ascertain the extent to which the pattern of electoral politics is dominated by political parties or rather by more autonomous political forces (Mughan [2000] quoted in Elgie and Passarelli 2020: 362). The number of studies referring to this sort of relation between electoral systems and independent presidents is small. However, evidence from Portugal and Timor-Leste suggests that presidential elections are radically different from parliamentary ones as a function of the rules commanding the presentation of candidatures. Whereas parliamentary elections grant parties a monopoly to field candidates by presenting closed lists (in which they are free to include non-party members), presidential elections are open to individual citizens upon the mandatory fulfilment of a number of requirements that cannot be replaced by the official support of any legal party. These stipulations have far-reaching consequences in the organization of the whole political system. Both the Portuguese and the East Timorese electoral systems require that presidential hopefuls present individual candidatures supported by a significant but not too large number of electors. On top of these provisions, in both countries there is a system of public funding for presidential candidates that represents an incentive for a large number of candidatures,

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especially in Timor-Leste where this is (in relative terms) quite generous and devoid of a threshold—which in Portugal is fixed at 5% of the vote. The presidential electoral system in both Portugal and Timor-Leste are thus candidate centred, removing political parties from official roles in the process. The emergence of “independent” candidates is facilitated by the low barriers to access both ballot and public funding for campaigns. A short history of presidential elections in both countries illuminates this point. In Portugal, in 1986, the first election to be fought among civilian candidates alone, had four major contenders. On the right side of the political spectrum, Diogo Freitas do Amaral stood with the endorsement of both PSD and CDS. He had been a founder of CDS and its first leader until he stepped down in 1982. In April 1985, he called a press conference where, without anyone on his side, declared to be a candidate (Freitas do Amaral 2019: 44). Both his former party and PSD (in a greatly divided congress—Cavaco Silva 2002: 64) decided to support this individual who appeared not to convey the positions of a single party, but emerged as a polarizing figure for the broad centre-right political family. He would poll almost 49% on the runoff. The left fielded three candidates. The first to emerge was Maria de Lurdes Pintasilgo— the first woman to be a minister (1974) and a prime minister (1979) in Portugal—with the support of a grassroots movement clearly on the left side of the spectrum. This truly “independent” candidate scored 7.4%. Francisco Salgado Zenha, who had been a very high ranking cadre of the socialist party, stood as a candidate for General Ramalho Eanes’ PRD— Partido Renovador Democrático/Party for Democratic Renewal, and was later endorsed by the communist party. He received 20.9% of the vote. Finally, Mário Soares presented his candidacy before an audience of nonpartisan figures well before his divided party decided to throw its official support behind him—a difficult decision that left wounds in the party. In the previous election, Soares had broken with party discipline in order not to support General Eanes re-election bid, and suspended his functions as party leader. He was credited with sufficient capacity to distance himself from the party again. Having secured the second position in the first round (25.4%), he went on to win in the runoff with 51.2%. On the evening of his election, Soares resigned as leader of the party, formally returned his membership card, and proclaimed that “there is no such a thing as a presidential majority” (Avillez 1996: 306). “I shall be the president of all the Portuguese”—a dictum every subsequent president has

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repeated. To a large degree, Soares shaped the presidency in the period subsequent to the 1982 constitutional revision. He contributed decisively to the emergence of the new dominant narrative on presidential powers and functions, albeit one that is tributary to structural elements of the one prevailing after 1976, with adaptations to be responsive to the new constitutional arrangements. Ten years later, the presidential election had the fewest number of candidates to date: only two on election day (minor candidates having dropped before then). Former prime minister Aníbal Cavaco Silva, who had led the country for ten years and conquered two absolute majorities for his party, had stepped down from the party leadership few months before the polls. His successor lost the legislative elections of 1995. Although not a formal leader, he was regarded by many as the main voice from a particular party. On the left, the candidate was Jorge Sampaio. Once a socialist party leader who had been defeated at the polls and the subsequent party congress, he announced publicly his bid in a move destined to cut short the hypothesis of other candidates from the same political family (Castanheira 2017: 323). Standing alone in a highly symbolically charged venue—the Rectory of the University of Lisbon, where he had been the most prominent students’ leader in the early 1960s—Sampaio actually forced the party leader that had succeeded him in an acrimonious battle to engage his support. Later, he would be endorsed by the communist party whose candidate stood aside. The battle was thus between two senior politicians, both well identified with their respective political families. However, neither was a party leader, and one was even regarded as a dissident from the party line. Sampaio scored 53.9% and won. In 2006, Cavaco Silva returned to the fight, this time having consolidated his persona as a senior figure detached from party-politicking. A few months before the polls, he distanced himself from his party to the point of publicly criticizing its prime minister and contributing to the emergence of a context in which his fall was inevitable. He would win the ballot with 50.5%. On the left, former president Mário Soares returned to the arena, this time as a strict party candidate, and performed poorly as his party was deeply divided: he scored 14.3%. A non-aligned candidate emerged from the ranks of the socialist party to fight as “independent”: Manuel Alegre. His score was very significant for a candidate without any official party endorsement: 20.7%.

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Five years later, Alegre would return, this time with the formal support of his party and the endorsement of BE—Bloco de Esquerda/Left Bloc. The left had a considerable parliamentary majority emerging from the 2009 elections, but once again the incumbent factor was at play (combined with a distrust for partisan-based candidatures): Alegre (19.8%) lost to Cavaco Silva (53%). The novelty was another non-partisan, centre-left candidate with sympathies in the socialist family. Fernando Nobre scored 14.1%. The last presidential election (2016) returned another centre-right president. Marcelo Rebelo de Sousa had been party leader (1996–1999) and was mostly known as a TV pundit. He stood with a platform that was not endorsed by the leaders of the two right-wing parties, who endeavoured to present another candidate, but were not able to do so thanks to the popularity of this senior figure. In the campaign, it was very clear that the candidate distanced himself from the leadership of his political family’s parties (and from the negative aspects of the Eurocrisis memory). He secured a clear victory—52%—again at a time when the left had a handsome majority in parliament and had, for the first time in the history of the Second Republic, made a confidence and supply agreement to sustain a minority government of the socialist party. The left presented several candidates. One of them was Maria de Belém Roseira, a former chairwoman of the socialist party (then in power) who scored a very poor 4.2%, coming in fourth place. Another was a non-partisan figure, former chancellor of the University of Lisbon—AntónioSampaio da Nóvoa,—who ran with a grassroots support movement and that of many socialists—but not with official endorsement. He scored an honourable 22.9%. Disregarding the situation that existed prior to the 1982 constitutional revision, Portugal offers a curious image that combines formal party affiliation with significant success for non-party candidates. Winning a presidential poll seems to require that candidates combine their attachment to a given political family with a capacity to distance themselves from the party fray. Close party links are generally regarded as detrimental to their cause, and examples are plenty of the wide gap between a party’s vote in legislative and presidential elections (for more on this issue, see Feijó 2017). In Timor-Leste, the image is somehow different. There, all first three presidents were not affiliated with any party at the time of their inauguration. Xanana Gusmão, the most celebrated hero of the Resistance threatened not to run if forced to place party symbols next to

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his photo in the ballots. Although he was endorsed by many political parties—the exceptions being ASDT (Associação Social-Democrata de Timor/Timorese Social Democratic Association) who presented its leader and former president during the ephemeral republic of 1975, Francisco Xavier do Amaral (1937–2012), and Fretilin which declined to endorse any candidate—Xanana claimed he had not asked for any partisan support. His victory was beyond doubt (82.7%). In 2007, José Ramos-Horta ran as an “independent”, being endorsed by some parties, namely Xanana’s CNRT, and easily took the second round (69.1%). Five years later, he stood for re-election without negotiating his position, and failed to get past the first round. That year, Xanana decided to support BrigadierGeneral Taur Matan Ruak, the man who had been the last commander of the guerrilla force and acted as commander of the armed forces for the best part of the years since independence. As a military, albeit off-duty, he was not affiliated with any party. He won the runoff (60.9%). Both in 2007 and 2012 the runoff was disputed with a partisan candidate: Francisco Guterres “Lu Olo”, the chairman of Fretilin, and the main cadre of the party living clandestinely in the latter years of the Indonesian occupation. Both times he lost heavily. In 2017 he ran for the third time—only the circumstances in which he did were significantly different. During the Third Legislature (2012–2017) inter-party relations evolved and all four parliamentary parties ended up supporting the VI Constitutional Government, led by Rui Maria de Araujo, dubbed a “Government of National Inclusion” (Feijó 2016b). Although there was no signed agreement, and Fretilin claimed to still “lead the opposition”, this party secured several key positions in government, not least the premiership to a member of its central committee. Fretilin also held the ministry for foreign affairs and a state minister in charge of the economy. The VI Constitutional Government was hailed as a symbol of the emergence of “consensus democracy” over “belligerent democracy” that had prevailed (Pereira 2014). When the 2017 electoral cycle approached, president Taur Matan Ruak, who had initially supported the rapprochement between all parties, was the sole voice to criticize the political formula. It emerged naturally that all the parties in the informal coalition that wished for its continuation would support the same presidential candidate. Xanana Gusmão and Fretilin were on the same wavelength, and thus Lu Olo secured an easy victory on the first ballot: 57.1%. The political landscape would rapidly evolve, and a card reshuffle would soon emerge. The

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assumption underlying Lu Olo’s election—continuity with the practice of the “Government of National Inclusion”—was brought to an end. Non-partisan candidates won three out of four presidential elections in Timor-Leste. Some maintain that this assertion suffers from excessive formalism, and that, in reality, there has been sort of a “curtain of convenience” covering actual articulations between presidents and specific parties which transcend momentary circumstances to be elevated to structural features. In fact, it is common to disregard the alleged “independence” of non-partisan political actors. Lydia Beuman is a case in point, as she grounds one of the most comprehensive analysis of the East Timorese political system (2016) on the assumption that presidents elected without formal party affiliation did perform in close, systemic association with parliamentary parties. For this reason, she discusses the appropriateness of concepts such as “cohabitation” (to refer to the relations between Xanana as president and Mari Alkatiri as prime minister during the First Constitutional Government), “divided government” for the period of Ramos-Horta premiership, and “unified majority government” for the term of Ramos-Horta as president with Xanana serving as prime minister. All presuppose that presidents are the visible hand of an invisible party. This form of envisaging the relations between presidents and political parties is opposed to the one pursued in this volume, where non-party affiliation is taken at face value and not as a sort of disguise.18 This does not imply that presidents do not articulate their performance with a more or less restricted number of parliamentary parties—but not to the point of performing as party agents.19 The emergence of “president’s parties” is a sign that the heads of state do not always find it easy to liaise with the parliamentary world as their realm for intervention is differently defined. Citizens running in presidential elections under the label “independent candidate”, or elected presidents claiming to discharge theirs functions as “independent” in line with popularly accepted protocols for the job, have fared well in both Portugal and Timor-Leste. They are also to be 18 For a critique of Beuman’s work, see my review of her book (Feijó 2016c). 19 President Ramos-Horta failed to guarantee the support of the party he allegedly

served for his re-election bid, and President Taur Matan Ruak not only had severe clashes with the prime minister and his majority but he launched a competing party. These examples do not suggest any hidden, secret accords between those presidents and the parties that endorsed their first candidature.

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found in several modern democratic republics. For some, these claims are little more than a smokescreen hiding not so palatable “politics as usual”, if not a farce that political analysts ought to unveil. As Brancati (2008) noted, “[a]lmost invariably, scholars consider political parties as essential to democracy and independents, conversely, as superfluous to it at best and antithetical to it at worst”. For others the phenomenon deserves to be analysed in the context of emerging democracies, the route they took to gain traction in their countries and the challenges of mature political landscapes. In common, these may reveal that political parties, important as they are to democratic practices, need not be hegemons and leave room for other political actors to emerge and perform significant functions.20 This is not a normative statement nor does it imply any sort of moral judgement: it is simply the verification of a social fact. Bearing in mind the experiences of Portugal and Timor-Leste the institutional arrangements put in place in the early phase of their respective democratizing processes strongly influenced the way in which political parties were formed and structured, how they deal with the issue of their leadership and its relation with state organs, and how they perform vis-à-vis presidential elections. The institutional framework for presidential elections is highly focused in the personal characteristics of candidates, and parties are brought into the picture insofar as they are able to accommodate requirements of personalized candidatures capable 20 It should be noted that presidencies are not the sole political territory open to “independent” citizens competing for office. Legislative elections (and even more so, local elections) are known to harbour the same phenomenon, which has been the object of mostly national case studies while comparative studies are still rare (Ehin et al. 2013). However, Brancati (2008) has made an exploratory analysis of 34 parliamentary cases worldwide. In the EU alone, half the member countries allow for the participation of “independents” in elections for the national or European parliament. Piret Ehin and her colleagues consider that “[i]ndependent candidacy is on the rise” as so is “interest in nonparty candidates”. Beuman (2014) made a brief analysis of the data contained in the World Statesmen website setting aside parliamentary regimes, and concluded that in presidential and semi-presidential regimes between 1990 and 2013 there had been 223 presidential elections, and 29 of them returned an “independent” candidate as the new president. This represents a percentage of just 13% worldwide—but in Europe 26% of all elected presidents in that period (18 individuals) were catalogued as “independent”, the vast majority of them in countries with semi-presidential systems. These findings suggest that Europe is where the phenomenon is most common, but that it does nevertheless occur in other latitudes. In addition, “independent” (mostly presented as technocrats) also find way into national governments, as shown by Costa Pinto and Tavares de Almeida (2009) or by Amorim Neto and Strom (2006).

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of extending their appeal beyond party frontiers. The overall context for presidential disputes takes into account the definition of the president’s function as distinct from executive power—they are entrusted with “moderating power”—and both elements feed on each other to generate a self-reproducing mechanism. For this reason, in both countries under consideration, the “independence” of presidents and the nature of their candidatures is a matter of installed political wisdom. One might say: they are the impersonation of presidents entrusted with moderating power. Having this in mind, one may venture to briefly consider the meaning of “independent presidents” for comparative purposes. Piret Ehin and her colleagues have proposed a broad formulation according to which one may speak of “independent” political actors in general to denote electoral candidates whose nomination is not subject to appointment or endorsement by a political party (or functional equivalent). Independent candidates are not included in the electoral list of any political party, and the information provided in the ballot does not link them to any party in any manner. (Ehin et al. 2013: 11)21

Both requisites have been upheld in presidential elections both in Portugal and Timor-Leste. Some voices have expressed the view that while they discharge presidential functions, individuals must severe partisan links. Alfredo Barroso and José Vicente de Bragança, two senior members of President Soares civilian household sustained that the role of president is incompatible with partisan functions (1987: 324). Recently, Xanana Gusmão expressed similar views, when he accused President Lu Olo of being a mere “puppet of his party” intent on modifying the system (Lusa 2020). Fretilin leader Mari Alkatiri in an interview back in 2014 espoused the view that president of the Republic should remain independent, above political parties. Even if he is supported by one or many, or if he is a member of a political party, once elected he should severe his ties with them. (Alkatiri 2014: 99)

21 Ehin and her colleagues formulated this definition having in mind legislative elections. However, its wording seems adequate to cover presidential elections as well.

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President Ramos-Horta, in another interview, expressed a similar view: In the circumstances of our country, the ideal figure for the post of President of the Republic should not be affiliated to any political party. It is very difficult for any party leader to get elected, and even if he would manage to overcome that hurdle, it would then be difficult for him to foster dialogue among all political parties, and he would have to spend considerable efforts to try and persuade everybody he really was the President of all Timorese. The vocation of the major parties is to form government, and thus they should privilege legislative elections and not spend too much energy in the presidential ones that are also known to leave scars. (Ramos-Horta 2014: 85)

One may now open the floor to President Mário Soares who expressed himself in the following words The President of the Republic should have as far as possible a consensual role, to place himself above the natural party’s controversies, and his action feature an accentuated independence. He should not claim to be part of any majority – even the one that elected him – against any other eventual partisan majorities, especially those that are formed in the legislative process in parliament, nor should he seek to bring benefice, in the course of his actions, to any single party of whatever kind, and least of all should he seek to form his own party. (quoted in Braga da Cruz 1994: 254)

The break with parties, however, need not be radical. The field where presidents are recruited is not enormous. As Dawn Bancati mentions [m]any independents […] are political insiders who previously participated in the government as members of particular political parties or government bureaucracy. (2008: 650)

Again, even when they claim to be “independent” in the exercise of their mandates, the civilian presidents of Portugal have all been “political insiders” with extensive civic lives in which they have attained sort of a “senatorial” status placing them in a different playing field. The critical issue is not the formality of party affiliation: it is rather to ascertain the extent to which such actors perform structurally as party agents or not. “Independent presidents”—the chosen model for presidents discharging “moderating power” which is favoured by the institutional requisites for

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their election—is not antithetical to party affiliation, but is definitively opposed to party agency. Conjunctures In the modern democratic world there are a number of historical conjunctures that impinge on the opportunities for candidatures to emerge and eventually to be crowned with success. Four possibilities will be considered, allowing for the fact that some of these may in some aspects overlap. The cases under scrutiny in this book—Portugal and Timor-Leste— share one significant trait: they returned independent, non-partisan candidates as winners of their first democratic election for the presidency. Eventually, this precedent was erected as a guiding principle for successive elections, vindicating Carey’s (2000) assertion on the importance of critical choices and decisions bargained at the early stages of a long political process to have an enduring impact on its development and consolidation. In the case of Portugal, there was an “implicit clause” in the transition agreement between the military who overthrew the authoritarian regime and the civilian forces guaranteeing the presidency should remain out of the hands of “politicians” for a number of years during which a member of the military hierarchy would discharge elected functions as president. The party system was very young and fragile, almost all parties being formed after the 1974 revolution—the obvious exception being the communist party who descended from one created during the First Republic; the socialist party shared with radical left smaller parties the fact of being created in the last few years of the authoritarian regime; right of centre parties were all formed after the Carnations Revolution. Thus, a combination of a weak party system and the tutelage of those who claimed “revolutionary legitimacy” resulted in two consecutive mandates for an independent figure, Eanes. Timor-Leste organized presidential elections under the aegis of the UN transitory authority, and accessed independence on May 20, 2002 with its newly elected president. The recent history of the territory was one of violence and conflict, and the odds that the Timorese might be successful in their original double process of state and democracy building was bleak (Tansey 2009; Feijó 2016a). Emerging from a quarter century of repression and a diffuse memory of a civil war that preceded the Indonesian invasion represented a serious challenge to the Timorese.

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However, in this case, a political leader existed—Xanana Gusmão, once guerrilla commander, later captive but still very active—who had no party affiliation. Just like Portugal, Timor-Leste had one old and fairly structured party—Fretilin—and little time to organize the various strands of opinion that had been forged under the occupation as effective rather than nominal political parties. Other old parties who survived in the diaspora like UDT were in need of gaining new traction inside the country. The charisma of Xanana who led CNRT, the umbrella organization of the Resistance without compromising with any of the forces that composed it, was bound to make an impact on presidential elections. Other countries might be quoted as having elected non-partisan presidents in the early stages of their transition to democracy, when the party system was still suffering from the difficulties imposed by previous authoritarian regimes, and where a towering figure invested with moral authority rose to embrace the aspirations of the emerging democratic forces. One striking example is former Czechoslovakia and its first post-communist president, Vaclav Havel. In sharp contrast to the situation of young democracies after their installation, mature democracies may provide opportunities for nonpartisan candidates to emerge. The consolidation of democracy is supposed to develop strong and vibrant civil societies which may entail that formal political parties loose some of its influence in the shaping of public preferences, and permit the expression of citizens who do not embrace politics as a profession but still command popularity for the ways in which they express entrenched popular values and preferences. Some institutions are well suited by virtue of their profile as distanced from the realm of parties to ground the appeal of personalities of this kind, including the university and the intellectual world, the judicial branch, the diplomatic career, some NGOs or indeed the military forces. Mary Robinson of Ireland (2000–2007) was a leading scholar, Christos Sartzetakis of Greece (1985–1990) a famous judge, Rudolf Kirchschlager of Austria (1974–1986) a prominent diplomat. Personal prestige derived from outstanding political and moral integrity often combines with civic, intellectual or professional service in institutions praised for their neutrality or independence. Party fatigue accompanied by a crisis of representation is another phenomenon that may pave the way for non-partisan candidates. This was the case in Austria, in 2016, when the two leading parties of the post World War II were reduced to unprecedented low scores (about 11%

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each), and the election was polarized by a far-right populist (Norbert Hofer) and an “independent” who has its origins in the Green party, of which he was sometime a leader. Alexander Van der Bellen ultimately won a close race. In France, the two parties which had virtually monopolized the presidency under the V Republic (whatever the name of the centre-right party happened to be) were also eliminated from the runoff. The incumbent president’s party fell to a mere 6%. Apart from the well structured extreme-right Rassemblement National (which secured a place in the second ballot), two candidates not reducible to partisan structures but rather to specially designed political rather loose movements, performed well. Jean Luc Mélenchon of France Insoumise scored 19%, and Emmanuel Macron leading En Marche polled 23%, opening him the door for a comfortable victory in the runoff and the subsequent creation of a new party. These examples highlight the fact that political parties may cause social fatigue. The emergence of populism in Europe in the last decade reminds one that democratic political parties are not immune to perversion, artificially narrowing the scope of public choice—and may thus be challenged by emerging social movements denying them the hegemony of yesteryear. In these cases, the crisis of representation of the traditional parties was patent, and the political field was thus open to outsiders to come to the fore and make significant impact. A fourth conjuncture may occur in highly fragmented party systems that make it difficult for any of them to dispose of conditions to impose one of its members as a successful presidential candidate based on a necessary, more or less formal coalition, mainly if the electoral system imposes at least an absolute majority of votes.22 Independent personalities may provide a solution as they notionally guarantee that no special preference be attributed to any given party, introducing a distance between the realm of the president action and that of parliamentary competition. One example of a situation in which an independent figure may emerge to break a deadlock derived from party fragmentation is the recent case of Italy. President Giorgio Napolitano successfully concluded his first term in 2013 only to find that the electoral college was unable to overcome the fragmentation of votes and volatile coalitions to elect his 22 John M. Carey (2000) presents an overview of electoral systems, showing that some admit the election of presidents by simple plurality of the vote. Indirect (or parliamentary) presidential elections sometimes require qualified majorities.

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successor. Although he was a member of the Democratic Party when he was first elected, his performance well above the party fray gained him the sobriquet of King George, and he reluctantly accepted a broad appeal from different parties to stand again, this time as independent—and was elected for an unprecedented second term. In 2015 he was succeeded by the Constitutional Court judge Sergio Mattarella, running again as an independent candidate.

Conclusion The highly personalized requisites for a presidential candidature, combined with generous public financing for candidates, presents a sharp contrast to the closed partisan model used in legislative polls. Proportional representation generated, in both Portugal and Timor-Leste, fragmented party systems. Yet, presidents require an absolute majority of votes to be elected—something single parties are seldom in a position to deliver. Successful candidates, with or without party affiliation, must offer a platform that transcends partisan considerations. This is conducive to witness the emergence of personalities who are not party leaders and can thus offer assurances to broader sectors of the electorate. In so doing, they are better equipped to discharge “moderating power” and to secure an independent realm of intervention within the broad system of checks and balances, enhancing horizontal accountability. The emergence of presidents as distinct from party agents has historical roots in the complex processes of democratic transition in Portugal and Timor-Leste. This characteristic of the political system has shown a tendency to endure over circumstances and conjunctures. However, we have also ventured to explore other frameworks in which similar solutions have occurred—young democracies vying for stability; mature democracies with vibrant civil societies that occupy a terrain previously hegemonized by parties; situations in which traditional parties suffer from social fatigue; fragmented political systems in need of a third independent instance to guarantee the regular functioning of institutions.

References Alkatiri, M. (2014). A exclusão política cria conflitos. In R. G. Feijó (Ed.), O Semipresidencialismo Timorense. História, Politica e Desenho Institucional (pp. 89–105). Coimbra: CES/Almedina.

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Avillez, M. J. (1996). Soares: Democracia. Circulo de Leitores: Lisboa. Bachelot, C., & Haegel, R. (2015). The Presidentialization of Dominant Parties in France. In G. Passarelli (Ed.), The Presidentialization of Political Parties (pp. 88–106). London: Palgrave. Barroso, A., & Bragança, J. V. (1987). O Presidente da República: função e poderes. In M. B. Coelho (Ed.), Portugal: o sistema politico-constitucional (pp. 321–349). Lisboa: ICS. Beauman, L. (2014). Non-partisan Presidents. Presidential-Power.com, April 14. Beauman, L. (2016). Political Institutions in Timor-Leste: Semi-presidentialism and Democratization. London: Routledge. Blondel, J. (1982). The Organization of Government: A Comparative Analysis of Government Structures. London: Sage. Bourdieu, P. (2012). Sur l´État. Paris: Seuil. Brancati, D. (2008). Winning Alone: The Electoral Fate of Independent Candidates Worldwide. Journal of Politics, 70(3), 648–662. Carey, J. M. (2000). Presidential Electoral Systems. In R. Rose (Ed.), International Encyclopedia of Elections (pp. 220–224). Basingstoke and Oxford: Macmillan Reference. Castanheira, J. P. (2017). Jorge Sampaio: uma biografia (Vol. 1). Lisboa e Porto: Edições Nelson de Matos/Porto Editora. Cruz, M. B. (1994). O presidente da República: génese e evolução do sistema de governo português. Análise Social, XXIX (125–126), 237–265. Duverger, M. (1996). Le Système Politique Français. Droit Constitutionnel et Science Politique. Paris: PUF. Elgie, R., & Passarelli, G. (2020). The Presidentialization of Political Executives. In R. Andeweg, R. Elgie, L. Helms, & F. Müller-Rommel (Eds.), The Oxford Handbook of Political Executives (pp. 359–381). Oxford: Oxford University Press, Ehin, P., Madise, U., Solvak, M., Taagepera, R., Vassil, K., & Vinkel, P. (2013). Independent Candidates in National and European Elections. Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Brussels. Feijó, R. G. (2014). O Semi-presidencialismo Timorense. História, política e desenho institucional na trajectória de uma jovem democracia. Coimbra: CES/Almedina. Feijó, R. G. (2016a). Dynamics of Democracy in Timor-Leste. The birth of a democratic nation, 1999–2012. Amsterdam: Amsterdam University Press. Feijó, R. G. (2016b). The Long and Winding Road: A Brief History of the Idea of a “Government of National Inclusion” and Its Current Implications (UNU SSGM Discussion Papers 2016/3). Canberra.

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Feijó, R. G. (2016c). Review of Lydia Beuman’s Political Institutions in TimorLeste: Semi-presidentialism and Democratization. Contemporary Southeast Asia, 38(2), 318–320. Feijó, R. G. (2017). As eleições presidenciais e a consagração do estatuto “independente” do Presidente da República. In C. P. Teixeira (Ed.), O Sistema Político Português. Uma perspectiva critica (pp. 101–128). Cascais: Principia. Freire, A., & Pinto, A. C. (2010). Os poderes dos Presidentes na República Portuguesa. Lisboa: D. Quixote. Freitas do Amaral, D. (2019). Mais 35 anos de Democracia. Um percurso singular. Memória Políticas III (1982–2017). Lisboa: Bertrand. Jalali, C. (2011). The President Is Not a Passenger: Portuguese Evolving Semi-presidentialism. In R. Elgie, S. Moestrup, & Y.-S. Wu (Eds.), Semi-presidentialism and Democracy (pp. 156–173). Basingstoke: Palgrave Macmillan. Lobo, M. C., Pinto, A. C., & Magalhães, P. C. (2017). The Making and Remaking of Portuguese Democracy: An Overview. Paper presented at Brown University, Providence. Lusa. (2020, March 24). Xanana Gusmão acusa PR timorense de ser “um boneco” nas mãos da Fretilin. Magalhães, P. C. (2003). Elections, Parties and Policy-Making Institutions in Democratic Portugal. In A. C. Pinto (Ed.), Contemporary Portugal: Politics, Society and Culture (pp. 183–202). Boulder, CO: Social Science Monographs. Magalhães, P. C. (2007). What Are (Semi) Presidential Elections About? A Case Study of the Portuguese 2006 Elections. Journal of Elections, Public Opinion & Parties, 17 (3), 263–291. Magalhães, P., & Gomez Fortes, B. (2005). As eleições presidenciais em sistemas semi-presidenciais: participação eleitoral e punição dos governos. Análise Social, XL(175), 891–922. Mair, P., & van Biezen, I. (2001). Party Membership in Twenty European Democracies 1980–2000. Political Studies Review, 7 (1), 5–21. Marsh, M. (2000). Second Order Elections. In R. Rose (Ed.), International Encyclopaedia of Elections (pp. 287–289). Basingstoke and Oxford: Macmillan Reference. Mughan, A. (2000). Media and the Presidentialization of Parliamentary Elections. London: Palgrave Macmillan. Neto, O. A., & Strom, K. (2006). Breaking the Parliamentary Chain of Delegation: Presidents and Non-partisan Cabinet Members in European Democracies. British Journal of Political Science, 36(4), 619–643. Passarelli, G. (2010). The Government in Two Semi-presidential Systems: France and Portugal in Comparative Perspective. French Politics, 8(4), 402–428. Passarelli, G. (Ed.). (2015). The Presidentialization of Political Parties. Basingstoke: Palgrave Macmillan.

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Passarelli, G. (2019). The Presidential Party: A Theoretical Framework for Comparative Analysis. Political Studies Review. https://doi.org/10.1177/ 1478929919862232. Passarelli, G. (forthcoming). Presidential Elections, Two Round System and Runoff Comebacks in Comparative Perspective. Pereira, A. (2014). Transforming Belligerent Democracy into Consensus Democracy. Tempo Semanal, January 24. Pinto, A. C., & de Almeida, P. T. (2009). Portugal: The Primacy of ‘Independents’. In K. Dowding & P. Dumont (Eds.), The Selection of Ministers in Europe: Hiring and Firing. London and New York: Routledge. Ramos-Horta, J. (2014). O modelo semi-presidencialista diluido que temos é adequado à realidade timorense. In R. G. Feijó (Ed.), O Semipresidencialismo Timorense. História, Politica e Desenho Institucional (pp. 57–88). Coimbra: CES/Almedina. Reif, K., & Schmitt, H. (1983). Nine Second Order National Elections— A Conceptual Framework for the Analysis of European Elections Results. European Journal of Political Research, 8, 3–44. República Democrática de Timor-Leste. (2002). Constitution of the Democratic Republic of Timor-Leste. Dili: Assembleia Constituinte. República Portuguesa. (1976). Constituição da República Portuguesa. Accessed at www.parlamento.pt/Parlamento/Documents/CRP1976.pdf. República Portuguesa. (2005). Constituição da República Portuguesa. [updated] in Diário da República, I Série A nº 155. Accessed at https://dre.pt/util/ pdfs/files/crp.pdf. Samuels, D., & Shugart, M. S. (2010). Presidents, Parties and Prime Ministers: A Framework for Analysis. Cambridge: Cambridge University Press. Silva, A. C. (2002). Autobiografia Política I . Lisboa: Temas e Debates. Tansey, O. (2009). Regime Building: Democratization and International Administration. Oxford: Oxford University Press. Tavits, M. (2009). Presidents with Prime Ministers. Oxford: Oxford University Press. Ware, A. (1996). Political Parties and Party Systems. Oxford: Oxford University Press.

CHAPTER 4

What Do Presidents Do with “Moderating Power”?

Abstract Constitutions provide the main basis for an analysis of the scope of presidential competences, an autonomous area of state powers which has emerged with the support of non-institutional, established practices. A framework is proposed to cluster presidential competences— both negative and positive ones—in six different aspects: the power of the word (combining institutional and de facto powers grounded in sustained practices), the power of the sword, power of appointment and dismissal (including a detailed discussion of this power in relation to governments), legislative supervision (including a discussion of veto powers), competences in foreign relations and a residual category of other powers, including ceremonial and extraordinary ones (ranging from calling referendums to the declaration of states of exception). Keywords Presidential ethos · Constitutional provisions · Established practices · Positive powers · Negative powers · Presidents and governments

The heart of a semi-presidential system of government such as the ones adopted in Portugal and Timor-Leste consists of a diarchy of powers

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between the president and the prime minister grounded on their independent sources of legitimacy to perform the functions in which they are invested (Sartori 1997). In a broad sense, one may consider that this is a model with an inbuilt notion of power-sharing. When one is confronted with power-sharing arrangements, those powers that are shared are limited by the respective competences of those who hold them, or to put it in other words, they are not unrestricted but pertain to a complex structure of equilibrium involving different actors. The key question, then, is: what is the nature of the powers to be shared? Are those sorts of powers amenable to the classical tri-partition of state branches formulated by Montesquieu—meaning that the main thrust of the power to be shared between presidents and prime ministers is the executive one?1 Or is there a specific fourth power outside the classical division—such as posited by Benjamin Constant—which tends to be parallel to, and thus not cross lines with, executive power and the other state branches? The perspective adopted in this book is that notionally “moderating presidencies” aspire to define their munus of authority as autonomous from the realm of executive competences. Also, “moderating power” is not to be confused with either legislative or judicial authority. This would be, so to speak, a “pure” model. However, in actual practice, and by virtue of the holistic nature of their attributes which place them in direct relation with the institutions that embody all three classical powers, “moderating presidencies” find themselves confronted with the need to exercise limited responsibilities over matters which in parliamentary systems generally pertain to the executive authority alone. A clear example is the constitutional provisions that grant presidents responsibilities over foreign relations (albeit “in consultation with the government”—Constitution of the Portuguese Republic [CRP] section 135; Constitution of the Democratic Republic of Timor-Leste [CRDTL] section 87). In this sense, it is natural that the diarchy of powers entails limitations to the power and competences of both organs that benefit from the direct popular legitimacy. Governments do not dispose of unlimited executive power. As a matter of fact, both the Portuguese and the Timorese constitutions distinguish between the presidents’ “own competences” (CRP section 134; CRDTL section 85) and those which assume the form of prerogatives “with regard to other organs of sovereignty” (CRP section 133; CRDTL 1 In Chapter 3, note 7, I elaborate on the notion of government in Latin Europe as distinguished from it sense in the Anglo-Saxon worlds.

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section 86). This distinction suggests that (a) presidents dispose of an autonomous realm of powers; and that (b) they exercise competences that to an extent limit those of the executive (or indeed the legislative). For this reason, regimes which admit the existence of an independent realm of presidential competences with a specific ethos—to regulate the whole system of separated powers and discharge a “neutral” role—even if they marginally cross the frontiers with the other three branches of state power, adopt a quadripartite formula inspired in Constant’s proposal. Constitutionalists (i.e. Miranda 1997; Queirós 2007) have proposed to envisage in a systemic way the powers bestowed upon presidents, by distinguishing between two different kinds of competences. First, presidents dispose of the “pouvoir d’empécher”, also described as power of reaction or negative power—that is, the competence not to approve some actions undertaken by other organs of sovereignty, mostly the legislative and the executive, through a panoply of instruments such as the veto of legislation, the surveillance of constitutionality, the refusal to appoint individuals proposed for a number of state positions and so on. Secondly, they are vested with the “pouvoir de statuer”, also referred to as powers of action or positive powers to take initiatives that are not previously presented to them by other state organs, and depend on the presidents’ own volition to intervene. The distinction is useful to highlight the extent to which presidents dispose of autonomous competences to initiate political action and exercise a “moderating power” that articulates his own realm of competences with those of the other constitutional bodies. Traditional parliamentary regimes and to large extent premier-presidential forms of semi-presidentialism tend to concentrate on the former and limit or exclude the latter. The combination of positive and negative powers in the sense just presented (which finds room in presidential-parliamentary regimes) reinforces significantly the presidential status and the political weight they may have in the equilibrium of powers and in the mechanisms of power-sharing. Presidents under these arrangements have clearly more than symbolic and ceremonial functions and are not subject to act solely upon government recommendation. Neither are they directly responsible for the definition of public policies pursued by the executive branch, except in very limited cases.2 Presidential attributes may 2 For instance: the Portuguese constitution granted the president executive powers in matters pertaining to Macao (defined as Chinese territory under Portuguese administration) and Timor-Leste (a “non-autonomous territory under Portuguese administration”,

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combine in different degrees the positive and negative powers considered above. This distinction will be adopted as a background to the next step, admitting that it is somewhat difficult to distribute all the presidential competences squarely to the one or the other, as some overlapping often occurs.

Operationalizing “Moderating Power” In order to operationalize “moderating power” one doesn’t need an extensive list reminiscent of Don Giovanni’s Aria del Catalogo,3 nor to contemplate a checklist of 27 items proposed by Frye (1996), but rather to concentrate on a cluster of key constitutional provisions and competences attributed to presidents that may shape for them a particular domain of intervention. Presidential activism may thus exist, contemplating a mix of proactive and reactive powers (Köker 2017: 4–8) and be compatible with a power-sharing arrangement not conducive to foster competition, but rather compromise, between the president and the prime minister as both are entrusted with reasonably well defined, substantial and autonomous competences. Competences attributed to the presidency may be grouped together under six headings4 : public word, military command, legislative supervision, political appointments, foreign relations and symbolic and protocol. They need not all be present in every case, and the scope of each one may vary, but the six contemplated here easily find room in presidential arsenals of political competences that define a “moderating power”. Power of Public Word The first presidential competence to consider is, by and large, an exercise of positive power, which is often underrated: the power of the public

according to the UN), and up to the end of the twentieth century those files rested primarily with the president. 3 In Mozart and Da Ponte’s opera Don Giovanni, Leporello, a servant to the main hero, sings an aria to a women his master is courting (Donna Elvira) in which he tells her of the many amorous adventures he had. The aria starts “Madamina, il catalogo è questo”, and is widely known as the Aria del catalogo. 4 Further analyses of different empirical cases may add new elements to those mentioned here.

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word. Through this specific power presidents dispose of the capacity to set and influence political agendas. Jalali has termed it an “extraconstitutional power” (2011: 170), raising the controversial issue of ascertaining whether or not there are “implicit powers” that do not find express mention in the letter of the fundamental law5 —but without which a comprehensive analysis of the presidential action cannot be fully grasped, as is clear in the following words of António de Araújo: It is not possible to understand the weight of the President of the Republic in the Portuguese government system without paying due attention to the important informal mechanisms at his disposal, mainly when those mechanisms are articulated and interact with the so-called “de facto powers” […] The Palace of Belém can become an important center for political struggle even when the President does not exercise any of the powers that the Constitution bestows upon him. (Araujo 2003: 95, my emphasis)

In practice, there are two ways for presidents to “exteriorize their political thought” (Valle 2013)—one inscribed in a formal framework, another one derived from the presidents’ own initiatives in the public space. On the formal side of this power, presidents have the constitutional prerogative to address the Parliament, in writing or in person (CRP section 133d; CRDTL section 86e). The Timorese president regularly addresses his parliament every year at the beginning of the legislative session (disposing of a major tool to influence the agenda of the legislative chamber). In 2006, President Xanana Gusmão requested the introduction of legislation to regulate the forthcoming elections, and set out the main themes such bills ought to address. Portuguese presidents go to the Assembly of the Republic for the celebrations of the Revolution on April 25th. Speeches on those occasions are regarded as politically important. On more than one occasion those addresses triggered the fall of governments. Presidents may also request the extraordinary convening of parliament in order for them to convey a message (CRP section 133c; CRDTL 5 There is an ongoing debate on the extent of “implicit” presidential powers versus those

explicitly set in the printed word of a constitution. See Canotilho and Moreira (1991) for a constitutionalist approach, or Costa Pinto and Freire (2010) for a political scientists’ one. “Implicit” powers are those not specifically stated in the listing of presidential competences but that can be derived from generic functions such as “Supreme Commander of the Armed Forces” or “guarantor of the normal functioning of institutions”.

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section 86d). President Taur Matan Ruak took such an initiative in the last stage of his term, when institutional relations with the prime minister were strained; he was unsuccessful in generating a political turn, and was forced to promulgate legislation he had vetoed, but he made his position clear before the whole nation. This episode was important in his decision not to seek re-election. Although some ambiguity subsists, it is adequate to presume that presidents can—and have done so—use this prerogative to address parliamentarians and convey their desire to have specific topics debated and acted upon—an extraordinary power that verges on a capacity to introduce legislation in a more formal way than merely mentioning its desirability in public. Presidents also have the competences to address important political and social actors. In both countries, presidents usually speak at the opening session for the new judicial year. On this occasion, presidents use their power of the word to make proposals to be taken by other actors. Also, the Portuguese president can chair and address the cabinet at the prime minister’s invitation (CRP section 133i). Historically, this has been a competence rarely used, and never in critical situations. Rather, it has assumed the character of a protocol formality. Given that presidents have competences in nominating important public officers (as will be discussed below), they usually take the opportunity of a public ceremony to mark the inauguration of those individuals to offer their thoughts that range from justifications of their decisions to offering advice and make some public proposals. More informally, presidents can speak directly to the nation at special moments of their own choosing, and this power has been frequently used. In Portugal, the president traditionally makes a protocol address on New Year’s Day and also on June 10, the “Day of Portugal, Camões and the Portuguese communities”, but often uses the media for special, formal addresses. One example: Cavaco Silva made a public address to the nation when he was confronted with a piece of legislation related to the Autonomous Region of Azores he considered would reduce his constitutional prerogatives, which was subsequently altered to suit his concerns. In Timor-Leste, at the height of the 2006 political crisis, President Xanana Gusmão made a very long address using the media in order to state his vision of the political situation which was very influential for the resolution of the political stalemate.

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Presidents organize events in which they elaborate on their ideas and views for political action. President Ramos-Horta organized the “youth parliament” in order to push for a generational turnover, and President Jorge Sampaio held seminars with “specialists” to publicly debate several sensitive policy issues which were later published as a “contribution” to define a political agenda and some traits of the desired solutions. It is frequent for presidents to publish books with selected speeches that leave no doubt as to their capacity to influence the political agenda. This general competence of presidents puts them in contact with all three branches of government, and is sustained in the informal “fourth power”—the media. Cavaco Silva has initiated communications via the modern social networks and used them to transmit important decisions. President Mário Soares, an expert in the use of this competence once remarked that through the media ideas make their way into popular consciousness. President Soares’s “communication strategies and media apparatus” has been analysed by one of his close aides (Serrano 2002). The high point of such strategy was an “invention” that would take stock in Portuguese politics with some variation according to each subsequent president, and also been exported to Timor-Leste: the so-called “open presidencies” in which the president travelled outside the palace accompanied by the media, in order to meet the population and to expose important problems requiring the government’s attention. This was a very strong weapon of political pressure, forcing governments to adapt their agendas under popular support for presidential initiatives. In 2020, Portuguese president Marcelo Rebelo de Sousa is another case in point. Having been for a long time a TV pundit entering every home on Sunday evenings to comment any aspect of public life, he slightly adapted his style to the president’s persona, and remains prone to let the country know his position on myriad aspects. President Marcelo uses the media almost everyday, and his interventions range from anodyne comments when he visits a street market, to important statements before the cameras. For instance, he has used this means to convey his views on such issues like the fundamental law on health services (suggesting he might veto one that did not secure a significant share of the health system to the private sector, diverging from the government’s left-wing parliamentary basis), the legislation on the election of metropolitan authorities (a theme present in the government’s party electoral manifesto and the government programme which he objected to) or the constitutionally mandatory reform of the public administration through the introduction

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of regional authorities (a theme he opposes and managed to postpone despite the government’s pledge to “keep working on this issue for the medium term”). President Taur Matan Ruak made a point of visiting all 442 sukus (the smaller administrative unit) of the country, entertaining direct contact with the population away from his palace and heard the most common complaints of a country struggling with dire necessities. These visits became a basis upon which he developed a critical view of the strategic options of the executive. His concerns with the government’s strategy became increasingly present in his public statements, escalating up to the point that in late 2015 he vetoed the state budget which had been unanimously approved in parliament based on his dissent with the strategic options it contained. Constitutional provisions were obeyed, political entente clearly broken. The tone of the confrontation was high, as the president openly criticized the government’s option to favour mega investment plans and comparatively disregard funding for pressing needs of a welfare state—health, education and social security. His views echoed palpable dissatisfaction in the Timorese society, and he received support from a younger generation who pressed him to be increasingly proactive. Presidential activism was more explicitly perceived as a function of his power of the word than in his role as supervisor of legislation, as the number of diplomas receiving presidential veto was in fact rather small (although surgically addressed to key points). It will come as no surprise that Taur Matan Ruak decided to veto the Freedom of the Press Bill that was presented to him with the unanimous backing of the National Parliament. He weighted the outright opposition of the media who feared limitations to their liberty, not only because it allegedly infringed constitutional prescriptions but mainly because he felt it was his capacity to make himself heard as an independent voice that could be put in jeopardy. In so doing, he confronted all political parties and obtained a change in some of the most controversial aspects of the legislation. In parallel to the power of the public word, presidents maintain regular meetings with prime ministers (in both cases, these meetings are supposed to take place once a week) in which the power of the word is present, albeit in a private manner. Apart from their right to speak directly to the heads of government to make their position on every matter of public policy, often resulting in that legislation is actually negotiated between the two sides (as will be discussed below), or that political initiatives are

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recalibrated, presidents have a special right: to be kept informed. Jorge Novais has argued that prime ministers have the obligation to keep presidents well informed, and that this aspect is critical to establish their responsibility before presidents (2010: 135). Failure to keep the president informed on matters pertaining to negotiations regarding public finance and the need to resort to foreign aid at the height of the financial crisis in 2011 has been considered by Cavaco Silva’s “a total and unforgivable breach of institutional loyalty” by prime minister José Socrates (Cavaco Silva 2017: 434). This clash between Cavaco Silva and his prime minister hastened the president’s pressures to have the head of government removed. In fact, the prime minister lost a crucial vote in parliament within a couple of weeks and resigned, when it was public that he did not enjoy the president’s confidence. The power to use the word, both in public and in private, constitutes thus a major weapon in the presidential toolbox. It has been used by all presidents to make their presence in the political landscape assume a higher profile than a straight reading of constitutions would imply. This power is not unlimited: it depends, to a substantial extent, on the popularity of presidents. Power of the Sword The second critical attribute confers the head of state with the “Supreme Command of the Armed Forces” (CRP, section 120; CRDTL, section 85b) and has inscribed in its nature a form of positive (but limited) power. This attribute is present in the Portuguese Constitution since 1982,6 and in Timor-Leste since 2002, in both cases inserted in the constitutional sections that define what the president is. It happens to be one that is not exempt of ambiguity, as no mention is specifically made of the practical competences that this high position entails, and what presidents are entitled to do—and has generated some serious problems, namely in Timor-Leste (Beuman 2016). In order to overcome the ambiguities arising from the letter of constitutions, both countries have adopted specific laws on national defence 6 Jorge Novais (2010: 126–129) notes that before 1982 the role of the president in military affairs was merely inscribed in ordinary law. In the first years of the transition phase the president cumulated his office with the actual command of the general staff of the armed forces.

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which translate into ordinary regulations what is stipulated in their constitutions. In Portugal, the first Law of National Defence after the Revolution was approved in 1982 and implied a strong opposition between the centre-right government supported by the socialist party in this particular issue, and those who sided with president Eanes. The president was a general who regarded the political parties’ proposal as a drastic reduction of his competences, in particular, and in more general terms a hasty move to bring the military under civilian tutelage. The president vetoed the first draft of the proposed law, but the Assembly of the Republic insisted on its defence and decided to override the presidential veto (Freitas do Amaral 2008: 353–358). Among president Eanes reasons to oppose the law was the consideration that presidents ought to be granted more extensive competences that the bill established given that the presidency “is the only organ of sovereignty that is always characterized by its original democratic authority, by stability, and by the natural distance in regard to political parties” (quoted in Freitas do Amaral 2008: 355). Successive laws of national defence in Portugal have kept the principles established after the constitutional revision of 1982 abolished the Council of the Revolution and outlined a different distribution of competences between presidents and governments. Currently, Organic Law 5/2014 oversees national defence in Portugal. Sections 9 and 10 deal with the competences of the president of the Republic, making explicit what the constitution defines in broad terms. As for Timor-Leste, Law 3/2010 which was approved without major controversy, establishes the basis for the organization of national defence, and section 14 defines the presidential competences. These are quite similar in both countries. Among its provisions, the Timorese law stipulates that presidents have the right to determine, in agreement with the government, the rules of engagement of the armed forces; the right to be informed on all matters pertaining to the service; the right to engage directly with the commander of the forces and the right to counsel government on defence policies. Appointment and dismissal of the commander in chief and his subordinates is a presidential competence subordinated to a previous proposal made by the government. As for Portugal, where these provisions are replicated, a special one has been added: presidents have a special duty in case the armed forces are requested to intervene in the international arena.

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In democracy, the armed forces are placed under the supervision of the legitimate political authorities, and for most practical purposes they are under the aegis of the executive branch. However, the frequent association of the armed forces with national unity and the need to embody principles of political impartiality generates pressure for the supreme command to be in the hands of the institutional symbol of those public virtues—the president of the Republic—who disposes of open and direct regular communication channels with all stakeholders. “The president does not dispose of the power to issue instructions to the military commands, but he is entitled to communicate directly with them within the realm of his own powers, bearing in mind his constitutional functions” (Queirós 2013: 224). It is also important to notice that in both countries under consideration, it rests upon the presidents the critical tasks of declaring war and making peace—and obviously to be active part in all processes that imply the use of bellicose means (CRP section 135c; CRDTL section 85h). Another aspect of their common powers with relevance in regard to the military issues is the competence to declare the state of emergency and the state of siege (CRP section 134d; CRDTL section 85g), both touching upon the role of the armed forces and security means during the periods of exception. In processes of democratic transition, often from regimes in which the armed forces performed active political roles, some form of association between the head of the state and the military command can assume critical relevance (as was the case in Portugal right after the Revolution of April 25, 1974 up until the 1982 revision of CRP). Timor-Leste is a case in which the leadership of the guerrilla fighters played a prominent role in the choice of presidents Xanana Gusmão and Taur Matan Ruak. An opinion poll conducted in 2016 revealed that the role individual politicians played in the Resistance to Indonesian occupation was, by a very substantial margin, the most important factor that determined citizens’ vote (Asian Foundation 2017).7 In both cases, presidents have the formal power to appoint the military leadership, and as chairmen of consultative bodies specialized in matters of defence and security, both dispose of the capacity to directly discuss matters with the military hierarchy. 7 Asked “What would you consider the most important driver for you to vote for a particular candidate?”, 58% chose “Role of the candidate in Timor-Leste’s independence movement”; second choice was “don’t know” (at 12%), followed by “Previous leadership experience” at 8% (Asia Foundation 2017: 35).

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The role of the president as “Supreme Commander of the Armed Forces” came to the fore twice during president Sampaio’s term. First, in 1998 the president took the initiative to write a formal letter to the government expressing he had lost “political and functional confidence” in the commander in chief. The government swiftly proposed to relieve the military commander from his duties, and the president dismissed him (Castanheira 2017: 962–964). Although the presidential act was preceded by a formal governmental proposal, the political initiative pertained to the president who later claimed he had acted just “like President Truman when he dismissed General MacArthur” (Sampaio 2018: 36). The second time, it evolved around the Portuguese participation in the Iraq war. Durão Barroso, as prime minister, welcomed the Azores Summit that gave the green light for the attack, and was intent on taking direct part in the military operations. President Sampaio, however, refused to allow the Portuguese military to take an active part in the war. After negotiations with the prime minister, the president admitted that the paramilitary police—not under his command—be deployed. As he would later explain The president has the constitutional right to show his disagreement with the conduction of foreign policy and is not obliged to accept, passively and without intervention, the government’s decisions; in the present case […] I avoided opening up an institutional conflict that would not serve the country, but on the other hand, as I opposed the deployment of troops in Iraq, I restated very firmly the effective role of the president of the Republic as supreme commander of the Armed Forces. (Sampaio 2016)

In Timor-Leste this issue also emerged forcefully twice. First, the Timorese crisis of 2006 was rooted in a dispute between the president and the prime minister, the former accusing the leader of the government of conniving with a decision of the military command to expel a substantial number of soldiers from the ranks in contravention to his stance (Nuttall 2017). The scope of the purge (600 soldiers out of a universe of less than 1500) required that strategic considerations be addressed, and those in turn depended upon the presidential consent as “Supreme Commander” under the constitution. The crisis was violent, producing a number of casualties, the collapse of the police force, the emergence of over 150,000 internally displaced people, the resignation of cabinet ministers in charge

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of defence and homeland security and the deployment of a new International Stabilization Force to avoid the escalation of violence. It was only momentarily overcome with the resignation of prime minister Mari Alkatiri, followed by the appointment—negotiated between the president and Fretilin—of an “independent” prime minister (José Ramos-Horta) who disposed of the president’s confidence and also held the defence portfolio. The crisis was more durably solved with the organization of the 2007 round of elections that returned new office holders for both the head of state and that of government.8 The second episode was far less serious but nevertheless revealing of the institutional implications of power-sharing. A growing divergence between the president and the executive came to a climax in early 2016 over military matters. The government formally proposed the extension of the term in office of the commander in chief of the armed forces, to which the president raised objections as he was intent on promoting a generational turnover and wished a member of the younger generation to take the job. The president himself had been, for almost ten years, the commander in chief, after having discharged leading functions in the guerrilla structure in the later years of Indonesian occupation. He held passionate views on military matters. An impasse was reached that for a while signified that no action was taken. However, president Taur Matan Ruak decided to appoint a new commander without a previous proposal emanating from the government. This was in blatant breach of his constitutional competences, and the government reacted angrily. The word “impeachment” was voiced—but the president backtracked before any such moves were actually deployed. In the meantime, he used his power to summon a session of the National Parliament, which he addressed to expose his views and made a severe personal attack on the main leaders of the majority (Xanana Gusmão and Mari Alkatiri). This act would be the highest point of tension, after which the president decided to lower his profile and to step down at the end of his term, form a party and run in the legislative elections. As it had been the case in 2006, the military aspect of the crisis reveals that this issue remains an “Achilles heel” of Timorese semi-presidentialism 8 For a thorough analysis of the presidential competences derived from the statute of supreme commander in Timor-Leste, conjugating constitutional provisions with relevant legislation such the Law of National Defence, see Bacelar de Vasconcelos (2011: 288– 289).

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(Beuman 2016), a fact that is aggrandized by the circumstance that some active politicians have a military background mostly emanating from the guerrilla struggle that still influences their behaviour (Falur Late Raek [Domingos Raul] 2018)—and military ethics are not necessarily democratic nor do they equip individuals to perform in complex political arenas that have to deal with institutionalized dissent. To be defined as “Supreme Commander of the Armed Forces” in the letter of constitutions may be an ambiguous statement. It may require that additional institutional prescriptions be made, namely in the laws regulating defence matters, as it has been done in both Portugal and Timor-Leste. However, the basic definition is highly symbolic, and it implies that on military and defence matters power is shared between elected presidents and governments, both necessitating the compliance of the other to implement decisions that must represent a consensus. Presidents as hierarchically superior to all other political officers hold a considerable power to guide the emergence of binding decisions on these matters. The fact that they are supposed to symbolically embody the military aspiration and virtue, that is, to serve the nation above particular interests that party politics may not guarantee, places presidents as agents of policy formulation regarding military and defence issues without parallel in other realms of public life. This becomes a central tenet of the definition of their “moderating power”. Legislative Supervision The third element in the presidential toolbox consists of the power to supervise all legislation, and it may be regarded as the quintessential negative power. If the power of the word represents the capacity presidents have to set forth their own ideas in a proactive manner, legislative supervision permits that presidents restrain the government’s and/or the parliament’s power to enact legislation. It is not a question of initiative but of reaction. Presidents are supposed to ratify all bills, emanating from the government or the parliament. But they have the choice to veto them (CRP sections 136 and 137; CRDTL section 88), which is not limited and depends solely on their decision. Vasco Franco (2017) presented a framework to understand the nuances of the presidential “intervention in the legislative process”, distinguishing six instances: (i) veto of government

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decrees; (ii) veto of parliamentary laws; (iii) “transitional” veto of governmental decrees (applied when a government ceases its term before the president had the opportunity to make a decision); (iv) constitutional referral of government decrees; (v) constitutional referral of parliamentary laws and (vi) interference with the content of government decrees (Franco 2017: 259). Veto power can be exercised either as a direct political veto, or as a result of referral for constitutional review. Government decrees cannot overcome a presidential veto—although they may be moved to parliament and be re-enacted as a law if the government disposes of enough votes to perform such a manoeuvre, which is not necessarily the case when the country has a minority government. The quality of the majority required to override a presidential veto on parliamentary bills depends on the form this has assumed. Veto based on constitutionality issues requires the piece of legislation be amended before it can be re-submitted for promulgation. For a substantial number of cases, the minimum requirement is the absolute majority of members of parliament effectively in office—a circumstance many minority governments cannot comply with. In some others, the requirement is more stringent, and implies a positive vote of two-thirds of the parliamentarians. That is the case, for instance, of legislation on Portugal’s foreign relations, frontiers of the three regimes of ownership (public, private and co-operative), electoral matters and all “organic laws” (CRP section 136); for the case of Timor-Leste, the country’s boundaries, territorial divisions for administrative purposes, the defence of civil liberties, electoral matters, basic definitions of education, health laws and social security, the national budget and more (CRDTL section 95).9 This is a special case in which the power of the president in Timor-Leste is considerably larger than his Portuguese counterpart, as the two-thirds majority requirement covers a wider range of cases.

9 The extension of the president’s veto over budget matters, in Timor-Leste, has been much debated in 2018–2019 when Lu Olo opted not to promulgate the state budget for 2019. Dissenting voices were heard, some claiming a simple majority would suffice to overcome his veto, others sustaining that budgets fall within the realm of matters that require a two-thirds majority. The constitutional expert Bacelar de Vasconcelos, in his comprehensive treatise on Timor-Leste’s fundamental law, states that “budgetary matters” pertain to the ensemble that requires a qualified majority (2011: 319). This interpretation, if validated by the Constitutional Court—as I believe would likely be the case—would substantially enlarge presidential powers given that he might oppose a state budget emanating from a majority government.

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The ways presidents deal with the legislative process, however, is complex. The political implications of their attitudes vary more than one might expect. Following Vasco Franco again, one may consider that the use of presidential veto can reveal three different attitudes in regard to the government. The most obvious one is conflict. This happens when presidents veto government decrees or when they veto parliamentary legislation approved with the votes of the government supporting parties. Referral for constitutional revision can also be interpreted as a conflictual gesture when presidents so decide in regard to diplomas emanating from the governmental majority, be they government decrees of parliamentary laws. Conversely, vetoes may have a co-operant significance when the diploma presented for promulgation emerges from the parliamentary opposition to the government, or when presidents block initiatives of the previous government with a different political basis still pending approval. Likewise, constitutional referral of parliamentary initiatives made against the wishes of the government—not unusual when the government commands only a minority of parliamentarians—can be regarded as a form of president–government cooperation (see Franco 2017: 257–260). Obviously, this presidential prerogative has a significant impact on legislation and constrains governments’ capacity to deploy their own agenda—especially in the case of minority governments. In order for governments to pursue their political aims, negotiations with presidents may have to occur, as situations regarding the promulgation of legislation are far from a “take it or leave it” situation. Cavaco Silva has revealed that he has been responsible, through his “powers of persuasion” that are parallel to his veto powers, for changes introduced in almost a quarter of all legislation proposed to him, which was not accepted nor formally rejected through a veto but “amicably” returned to its origin for changes to be introduced (Cavaco Silva 2017). Exchanges between presidents and government are easier to operationalize than between presidents and the parliament. In the later case, presidents either accept or reject a piece of legislation; in the former, however, room exists for the sort of attitude just mentioned. President Marcelo follows the same principle. In the first half of his term, the president received 430 legislative pieces emanating from the government. Only two were vetoed. But 18 others were returned to the prime minister without a formal decision attached for further elaboration (PUBLICO, July 8, 2018).

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It is important to notice that presidents, aiming to be perceived as independent, procedurally neutral entities, have not shied away from vetoing legislation coming from governments or parliamentary majorities of their own political families. Paulo Canelas Rapaz found for the period 1986–2013 that presidents had issued 42 “political vetoes” regarding laws emanating from the House, of which 10 related to legislative proposals made by parliamentary majorities that were “congruent” or in accord with the presidents’ political family (Rapaz 2017: 203, Table 8.4). As for governmental decree-laws, the same period witnessed 24 instances of “political veto”, of which 8 originated in governments of the presidents’ political family (Rapaz 2017: Table 8.5) This practice reinforces the idea that there is a sense in which the performance of presidential duties is expected to be based on independent judgement rather than party considerations.10 Power of Appointment and Dismissal Another set of presidential competences that require individual attention regards the power of appointment (and dismissal) of an ample number of institutional positions. Costa Lobo and Amorim Neto rank this competence among the key presidential powers, contributing to ground his intervention in the policymaking process (Neto and Lobo 2009). This power places the president at the centre of the complex network of powers, and allocates the presidency “the possibility of exercising an indirect from of conditionality over the country’s political orientation”, ultimately revealing the “potential for equilibrium, collaboration and control” of all branches of power that depends on presidential decisions, as well as the “space of deep solitude” that surrounds the president in the exercise of his interpretation of the constitutional mandate (Bacelar de Vasconcelos 2011: 293–295). First and foremost, presidents in Portugal and Timor-Leste have considerable power in the initiation and termination of the governments’ term in office distancing this government system from the overriding influence of parliaments. Both the Portuguese and the East Timorese constitutions state that the government is responsible before the president of the Republic and the parliament (CRP section 190; CRDTL 10 A comprehensive list of presidential vetoes in Portugal can be seen in Franco (2017, vol. II: Appendix B).

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section 107), and that the president has the power to nominate the prime minister (CRP section 187; CDRTL section 106). A difference exists in that in Portugal the president must “bear in mind the electoral results”, having wide room for interpretation, whereas in Timor-Leste the prime minister is supposed to be “designated by the political party or alliance of political parties with parliamentary majority”, a slightly stricter view of the electoral results. However, as noted by Pedro Bacelar de Vasconcelos, the role of the president remains important, and “may become determinant when the electoral results do not return government solutions capable of congregating majority support in parliament”, in which case the role of the president consists of “actively promoting forms of mutual understanding among parties with parliamentary representation” (2011: 349). In line with the fundamental assumption of semi-presidentialism that governments must enjoy parliamentary support, the composition of the assembly is a critical condition for the emergence of a new government. But if this is a necessary condition, it is by no means a sufficient one—as the confidence of the president must also be taken into consideration. When no party or pre-electoral coalition disposes of parliamentary majority, presidential discretion tends to more important. But it exists even when parliaments hold a majority. In Portugal, a convention existed from 1976 to 2015 according to which the largest party or coalition should be offered the chance to form a cabinet and be invested in parliament. Several minority cabinets emerged out of this convention (PS in 1976, PSD in 1985, PS in 1995, 1999 and 2009). In 2015 Cavaco Silva followed the tradition even when he faced an unprecedented postelectoral convergence of the left-wing parties, and appointed the leader of the largest parliamentary party to form a government which eventually failed within days as its programme was rejected in the assembly. Unable to dissolve parliament (protected by the rule that it cannot be dissolved in the first six months following an election—CRP section 172.1; CRDTL section 100.1), the president reluctantly appointed the leader of the second largest party who was successful in having its programme passed in parliament. This government lasted the duration of the legislature. A similar situation existed in Timor-Leste in 2007, but then president Ramos-Horta opted to appoint Xanana Gusmão as leader of the second largest party, and also leader of a post-electoral coalition to form a government that lasted five years, eliciting furious complaints—voiced by the largest but minority party—of “unconstitutional behaviour” that were

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never substantiated. The interplay between parliamentary support and presidential discretion is never decided without weighing the balance of forces. Presidential discretion may be more important when parliaments have no majority, as was the case in Portugal in 1976, 1985, 1995, 1999 or 2009, and Timor-Leste in 2007. However, the circumstance that a majority exists does not eliminate the need to dispose of presidential confidence. In 1983, after prime minister Francisco Pinto Balsemão, leader of a majority coalition, resigned and proposed another name to replace him, president Ramalho Eanes refused such a solution and opted for a dissolution of parliament. Likewise, in 1987, after the fall of the first cabinet led by Cavaco Silva, the opposition that had brought it down with a no confidence motion proposed the socialist leader to head a new executive backed by other parties—and president Mário Soares opted to dissolve the parliament instead of appointing a prime minister of his own party. In Timor-Leste, after the 2017 elections, no party disposed of majority in the House, and the president offered the largest party the chance to form a government that would try to be invested in parliament. The government failed to pass its programme as three other parties formed a post-electoral majority coalition and claimed the right to be offered the right to form a cabinet, only to see President Lu Olo opt to dissolve the parliament and call fresh elections. To dispose of majority in parliament is thus not a sufficient condition to form a government. It requires the confidence of the president of the Republic. At times, presidents act reluctantly, as Cavaco Silva did in 2015 at a time when he was constitutionally barred from calling fresh elections. He chose to use the government’s inauguration to deliver a speech explaining why he was forced to accept a solution he did not trust, and to set up a number of guidelines the government should follow or risk being dismissed. President Lu Olo also reluctantly accepted to appoint the leader of a preelectoral coalition as new prime minister after the early elections of 2018. His actions were more consequential, as we shall, see in Chapter 5. As far as the termination of the term in office is concerned, two weapons are in the presidents’ arsenal—dismissal of the prime minister or dissolution of the assembly (CRP section 133e and g; CRDTL section 86f and g). Neither is an unrestricted power, as some particular rules apply. In both cases, a necessary condition for the dismissal of the prime minister—apart from normal cases of expiration of his term, a rejection

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of government in parliament or serious incapacity to perform his duties— resides in the need to “ensure the regular functioning of of the democratic institutions” (CRP section 196; CRDTL section 112). Although the constitutional drafters included this point to refrain presidents from extensive interference with the government, these provisions keep a wide room for presidential discretion. Some presidents have expressed to this author their views on this issue. President Sampaio11 said: After the constitutional revision of 1982, the power of the president to dismiss the government has been diminished but not suppressed. On the one hand, there are circumstances which are independent of the president’s will that imply the dismissal of the prime minister and the government, such as the termination of a legislature, the approval of a rejection motion, or a serious alteration of the prime minister’s capacity to effectively lead his cabinet. But there is another sort of situation which occurs when the regular functioning of political institutions is in question. This cannot be equated with a mere divergence of opinion between president and prime minister, but must stem from deep dissent with serious implications. As such, this is a limited and qualified power. In the end of the day, however, the president himself must decide what in actual terms is implied by the expression “regular functioning of democratic institutions”, and formulate a political judgement on the specific situation of the country at a given moment.

In Timor-Leste, president Xanana Gusmão produced the following statement12 : In the face of circumstances revealing, in the framework of the functioning of the state, that the government is no longer capable of adequately manage a situation that has implications on security and the social and political cohesion of the Nation, the president of the Republic has the capacity to dismiss the government and/or the prime minister. However, since the president of the Republic is not using any superstructural power of the state, the constitutional provisions on this issue must prevail for the purpose of justifying his decision. This entails that the president of the 11 Personal communication, Lisbon, May 16, 2013. My responsibility for the accuracy of his words. 12 Xanana Gusmão, Dili, October 23, 2013. This statement was transmitted to the author by an email of the same date.

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Republic will discuss the matter with the prime minister and expose to him his own considerations. In case the prime minister does not assume a compromise to alter the situation, after consulting with all political parties sitting in parliament and the Superior Council for Defence and Security, the president must still consult with the Council of State. Only when all these conditions have been met can it be guaranteed that the president of the Republic does not dismiss the government because of a political whim or by virtue of his unrestricted will.

His successor, president Ramos-Horta, was formally interviewed while in office. Asked about the dual responsibility of government before the parliament and the president, he replied: The Constitution is clear and explicit: the government responds before the parliament and the president. This is written in section 107. Therefore, the head of state, being the guarantor of independence, sovereignty, peace and national unity has the responsibility and the privilege of demanding explanations from the government. The absence of good governance, or the existence of bad governance may create situations of great social tension, social and political conflicts that put in jeopardy peace and stability, which are the main responsibilities of the Chief of State. (Ramos-Horta 2014: 71–72)

Further asked to rate the power of presidents to dismiss the government in a scale of 0–10, he replied I would rate it 20! Very important. I never used it, nor do I intend to, but it is very important. (Ramos-Horta 2014: 76)

The ensemble of these first-hand testimonies from presidents leaves no room for any doubts on the interpretation of the power to dismiss governments and remove the prime minister: it is not an unrestricted power, as it is bound by constitutional provisions, but still it resides with the president and his or her political judgement. By and large, the restrictive conditions—apart from the specific ones related to the timing of the eventual dissolution of parliament which cannot take place either in the first six months following an election or in the last six months of the president’s term in office—do not limit the president from exercising his sole and political discretion in the lecture he makes of the political situation of the country at any given moment.

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Commenting on the constitutional provisions that apply in Timor-Leste (and are parallel to those of Portugal), Pedro Bacelar de Vasconcelos states: One may ask whether the president’s discretion when he analyses a serious institutional crisis is curtailed by the examples of circumstances that are explicitly mentioned in the constitution, or rather depends on his sole political wisdom. One should conclude that the presidents autonomy of judgment is paramount, otherwise risking being deprived of means of intervention in the face of more serious problems than those the legislator imagined. (2011: 294–295)

To put it in the words of another constitutionalist, Jorge Reis Novais, the actions of the president in case of dissolution or dismissal of the prime minister are not controllable by any external organ of power. In fact the sole interpretation or evaluation which is juridically relevant is the one produced by the President of the Republic himself. He has the sole and exclusive right to decide if the regular functioning of the democratic institutions is at stake and to decide if and when the dismissal of government is a necessary and adequate means to maintain or re-establish such a situation. The decision of the President of the Republic may be subject to political debate, may even be juridically erroneous or abusive, but it remains a decision pertaining to his discretion. (Novais 2010: 123)

In the same sense one might quote J. J. Gomes Canotilho and Vital Moreira for whom Even if there is no way to control the abuse or the deviation of the president’s competences in the exercise of his powers, it is true that there is a juridical-constitutional limitation. However, there is also ample room for the president’s liberty in the definition of those circumstances that enable him to evoke the “regular functioning of institutions”, being altogether impossible to typify them in any exhaustive or positive manner. (1991: 50–51)

This vision is sustained by Pedro Santana Lopes (a jurist turned politician who was prime minister when president Sampaio dissolved parliament against his will), who claims that the limitation rule of the dismissal power is an “uncertainty” rather than a positive rule:

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The problem with this uncertainty is that the Portuguese constitution became even more confused than before [1982], and to a large extent, more subjective, because it does not make it explicit what the “regular functioning of institutions” really means. No section of its text contains a precise definition. This depends absolutely on the interpretation of those who happen to hold the presidential office. (2013: 96–97)

It is therefore virtually impossible to eliminate political considerations in the president’s decision process regarding the dismissal of the prime minister. Moreover, one must bear in mind that constitutionalist António de Araújo claimed that [t]he circumstance that the Constitution, as any other law, is unable to determine with absolute precision the scope of presidential powers is, in the majority of cases, a weapon in the president’s hand and not one that goes against him. That is the reason why any attempt to approach presidential powers in a juridical form that does not take into consideration the “genetic code” of the regime or that is based solely on “quantitative” or “accountancy” methods is destined to fail. (2003: 98–99)

Many commentators and scholars expressed the view that the dual dependence of the government in regard to the parliament and the president was not balanced. They argue that the government’s dependence of parliamentary support is political in nature, whereas the dependence on the president’s confidence was merely institutional (see Chapter 2 above). It would be as if the president was sort of a notary that would verify if the prime minister had sufficient parliamentary support, and be devoid of powers to act if that would happen. This does not seem to be the case in either Portugal and Timor-Leste. The opinions of two senior constitutionalists quoted above disprove the idea that presidents are limited in their discretionary power, and are thus entitled to intervene in line with their political judgement. Another constitutional scholar recently argued The restriction [i.e., limiting presidential powers to institutionally dubious situations] can hardly have practical effects, given that it uses indeterminate concepts, on the one hand, and on the other, does not prescribe any juridical sanction. As such, they would always allow a president who wished to dismiss a government to look for an acceptable justification without being subject to any form of political scrutiny, and risking only a political form of censure. (Farinho 2017: 185)

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The presidential power to dismiss the prime minister must be understood in a context that allows a different route to achieve the same goal: the dissolution of parliament. In the case of a serious conflict between a president and a prime minister, presidents may be tempted to dissolve parliament and call fresh elections whenever they are convinced that the prime minister and his party no longer enjoy sufficient support in the country. Resorting to directly dismissing the prime minister would typically occur when the government disposes of minority support in parliament and the president is confident the House might return a new government formula. In Portugal, three episodes placed the president in direct confrontation with the prime minister. The first instance occurred before the constitutional revision of 1982, when president Ramalho Eanes withdrew his confidence in prime minister Mário Soares, after the government supply and demand agreement in parliament collapsed.13 The most discussed episode took place under president Sampaio, after José Manuel Durão Barroso stepped down in mid-term to accept the presidency of the European Commission (2004). As a socialist elected by a left-wing coalition, president Sampaio came under severe pressure to call fresh elections. In the very recent elections for the European Parliament (June 2004), the socialists had obtained a significant triumph with 44.5% of the vote, verging on an absolute majority, as compared to the ruling coalition score of just 33.3%. After ponderation, including attempts to find an alternative name within the ruling coalition, he decided to accept the right-wing majority coalition proposed new prime minister, Pedro Santana Lopes. At his inauguration, the president made a strong speech placing the government under surveillance. A few months later, President Sampaio lost confidence—political confidence—in the prime minister. Assuming that dismissing the prime minister would not solve the conflict with the parliamentary majority that had not accepted the idea of a different name for the premiership, the president dissolved parliament and called early elections (see Marques da Costa 2009). The opposition won a landslide, the first and only socialist absolute majority (albeit with only 45% of the popular vote). Reflecting on the sequence of events that took place 13 The II Constitutional Government had ministers from both the Socialist Party and the right-wing Centro Democrático Social, and could thus be considered a coalition executive, although it was publicly presented as based on a supply and demand agreement (“acordo de incidência parlamentar”).

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in 2004, Neto and Lobo suggested that “the president’s two key decisions […] were a strong reminder that despite constitutional changes, the role of the president in the appointment and dismissal of cabinets and the dissolution of parliament remains crucial in times of government instability” (2009: 243–244). The last open confrontation between a president and a prime minister took place right after Cavaco Silva initiated his second term, in the middle of the severe financial crisis of 2011. In his inauguration, the new president lambasted the government for its responsibility in the spread of the crisis (Cavaco Silva 2017). He did not take any institutional measure, but politically paved the way for the prime minister to be forced to seek a confirmation of his mandate before parliament—which he failed, prompting his resignation and the call of early elections. The opposition won the 2011 poll.14 As for Timor-Leste, only twice were the president and the prime minister in open conflict. This took place at the time of the severe 2006 crisis, and was resolved, after a very emotional presidential address to the nation and a threat of resignation made before the Council of State, by the decision of the prime minister to step down. Political pressure was high, but the president did not use any of his prerogatives to institutionally remove the prime minister.15 The second episode took place in 2016. President Taur Matan Ruak was in a process of distancing himself from the government’s orientation in domestic policies, and took the bold decision to veto the state budget that had received unanimous support in parliament. After a second reading, the parliament passed the unaltered budget, which the president was forced to sign. In the wake of this tug of war, a new confrontation emerged around the appointment of the commander in chief of the armed forces. The president sidestepped his powers and nominated an individual without previously obtaining a governmental proposal to that effect. This episode was discussed in a previous section of this chapter. In the end, 14 Chapter 5 further elaborates on this episode. 15 As a very young democracy, Timor-Leste had not, at the height of the crisis, elec-

toral legislation that could support a dissolution of parliament and fresh elections. In 2001, elections were held under provisional legislation that was superseded by constitutional provisions implying new solutions. President Xanana Gusmão, in his address before parliament in September 2005, had specifically addressed this issue and asked for legislation to be produced. It would be only in December 2006 that the National Parliament approved electoral legislation.

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when voices were raising the ghost of impeachment, the president backtracked. At no point mention was made of a presidential desire to replace the prime minister. The power of appointment of prime ministers and government members brings along a symmetrical power: that of non-appointment. We have seen how presidents chose not to appoint prime ministers even when there was a parliamentary majority in support. In the important case of government members, both constitutions stipulate that presidents appoint cabinet members proposed by the prime minister and do not dispose of a power of initiative in this domain, but it is general public knowledge that names have been rejected. President Ramos-Horta declared the prime minister would have to make proposals together with a file on the individuals concerned so that he could check their background with his intelligence staff and the Prosecutor General, and upon received information he rejected (in private) some of the names being proposed; president Taur Matan Ruak opposed (publicly) the prime minister’s choice for the defence portfolio in the Fifth Constitutional Government. Recently, Timor-Leste inaugurated a new phase in its political life when President Lu Olo refused to appoint a dozen members of the VIII Constitutional Government, implicitly denying the largest party offering parliamentary support to the prime minister of adequate representation in the cabinet. We shall return to this episode in Chapter 5. As for Portugal, in 2004 president Sampaio did not accept (publicly) the prime minister’s choice for foreign minister as he considered the candidate had Euro-sceptic views incompatible with his functions and the country’s commitments the president was supposed to uphold. Pressures have been exerted by presidents to have some cabinet ministers successfully removed under threat of direct presidential intervention (e.g. president Sampaio in the case of a minister in a socialist government who was involved in a major scandal). President Soares also famously opposed to promote the newly elected leader of PSD (Fernando Nogueira) from his position as defence minister to vice-premier on the eve of the 1995 elections. There are too many examples to be possible to list in here. The combination of extensive powers in the formation and in the termination of the governments’ term in office is thus a consequence of the dual dependence of the prime minister before the parliament and the president of the Republic, and constitutes a critical element in the analysis of the status of presidents within the political system.

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The presidential power of appointment extends beyond the government to encompass senior public officers in the executive and judicial branches, the military sector and diplomacy. It has been noted that these powers vary from absolute presidential discretion (and thus, to positive powers of initiative) to others in which presidents are required to act upon the recommendation of government (and are limited to eventually exercise powers of reaction). In the case of Timor-Leste, presidential discretion is exerted in the nomination of some members of the Council of State and the Superior Council for Defence and Security, the President of the Supreme Court of Justice, the Prosecutor General and his or her Deputy, several members of the Superior Councils of the Judiciary. Conversely, the president is limited by a previous proposal emanating from the government in the cases of the Chief of General Staff of the Armed Forces and the other military leaders, as well as in the case of ambassadors (CRDTL sections 86 and 87). In Portugal, the president is free to nominate the representatives of the state in the Autonomous Regions of Madeira and Azores, five members of the Council of State and the Superior Council of Magistrates, and depends on the governmental initiative in matters pertaining to the military and the diplomatic corps, the President of the Court of Audits or the Prosecutor General (CRP sections 133 and 135). In both cases, important room for political initiative is bestowed upon the president of the Republic. Returning once again to the words of constitutionalist Pedro Bacelar de Vasconcelos, [This power of appointment] is especially meaningful inasmuch as some of those nominations are not conditioned by a previous governmental proposal or to consultations with other organs of sovereignty. From these considerations emerges the real possibility of presidents disposing of powers to indirectly condition the orientation of national policies. (Vasconcelos and Cunha 2009: 243)

For the Australian constitutionalist Hillary Charlesworth, the privilege of Timorese presidents to independent initiative is assured In many constitutions there is a clear statement that the president exercises his powers on the advice of the government or the prime minister – unless the constitution states otherwise. The absence of any such statement in this Constitution, and the fact that there are clearly some powers which are

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to involve an independent judgment of the president creates uncertainty. (Charlesworth 2003: 9–10)

What these experts said for Timor-Leste applies, mutatis mutandis, to Portugal. What seems to have received lesser attention is the fact that presidents are entitled to refuse proposals submitted by the government or parliament, and also dispose, in most cases, of the power to dismiss those in office, or in any case, terminating their appointment—all depending on their own political judgement, not merely on institutional considerations or proposals originated in the government. The power of appointment and nomination—with the consequent power to terminate the appointees term in office—is thus a relevant power conferred on presidents located in a realm that is neither merely symbolic or institutional. It pertains to the domain of the presidential political functions as an independent moderator. One specific case—that of the Council of State, a body contemplated in both constitutions—can illuminate the ways presidents use to exercise their power of appointment. The Council of State—a statutory body destined to provide advice to presidents—is a telling example of the way presidents regard their function as moderators largely independent from their political parties. Contrary to the Revolutionary Council (1975–1982) which had tutelage over elected bodies, the new advisory board has limited capacity to intervene. However, summoning council meetings is mandatory before the president becomes fully entitled to exercise some of his powers (to dissolve parliament or dismiss the government, to declare the state of emergency or the state of siege, to engage in war or declare peace). The council meets in private, and its minutes are kept closed for thirty years. However, there is sometimes a press release with a summary of proceedings and eventual conclusions, and often there are leaks to the media that convey the sensibility of the council. Presidents often find it useful to portray their decisions as being in tune with the orientations of the Council of State. This circumstance appears to strengthen their status as a national figure capable of rising above partisan disputes. President Marcelo Rebelo de Sousa has inaugurated a new model: he makes it a point to summon the council at regular intervals and to invite illustrious guests to address it (the president of the European Central Bank, or the president of the International Monetary Fund, for instance) in

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order to contribute to the emergence of a “national consensus” on important policy matters. It also happens that presidents decide in opposition to the views expressed by the majority of the council’s members. President Ramalho Eanes faced the opposition of the majority of this council when he decided to dissolve parliament in 1983. In one of the most tense moments of his term, president Sampaio convened the council to debate the succession of Durão Barroso who had resigned as prime minister to head towards Brussels and the Presidency of the European Commission (2004). The council did not hold a formal vote. It transpired, however, that the majority of its members favoured the dissolution of parliament and new elections. The president would decide otherwise and appointed Pedro Santana Lopes as the new prime minister (Castanheira 575–573, esp. p. 562). As a result, the socialist party leader—the president’s party— resigned his post in protest, magnifying the projection of the president as a non-partisan figure intent on preserving the “superior interests of the nation”. In accordance with the constitutions, presidents freely nominate five citizens with a mandate coincident with their own term in office to sit in the Council of State (CRP section 142g; CRDTL section 90e). These nominees sit alongside several ex-officio members (e.g. the prime minister and the speaker of the House), life members (former presidents) and others elected by parliaments. President Mário Soares initial choice included only one member of his socialist party; three others were nonpartisan personalities who had supported his candidature and he made a point of having one member of PSD who had both served in a coalition government he had headed and supported his presidential bid; in his second term, he kept the same appointees, and when one of them needed to be replaced, the one socialist appointee gave way to an independent. Explaining his initial choices, Soares stated: [I appointed them] as a recognition for their past of consequent civic intervention and political engagement, of the services their rendered to the democratic state, in a multiplicity of functions, and their commitment to the struggle we undertook together in my campaign. […] Only one was a member of the socialist party. (in Avilez 1997: 11)

President Sampaio was returned on the first round of the 1996 election thanks to the implicit support of both socialists and communists, and thus he appointed one member of each of those parties; the majority, however,

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were non-partisan, and at least one was not a left-wing personality; he repeated the same formula in his second term. A distinct approach was followed by Cavaco Silva: only one of his nominees was a non-partisan figure, the other four being senior figures of the two parties supporting him; when a vacancy occurred, a partisan councillor was replaced by an independent personality. This approach was kept in his second term. Finally, the current president asserted the independence of his choices by naming two members of his party (PSD) and one of the conservative party (CDS) alongside two prominent socialists. When António Guterres, former socialist leader and prime minister was elected secretary-general of the United Nations, he was replaced by a non-partisan figure issued from the world of science (Presidência da República 2017). This brief survey suggests that presidents have a wide room for their choices, oscillating between a preference for balanced teams comprising mainly non-partisan figures (Soares) or elements of different political families (Marcelo Rebelo de Sousa), to narrow choices very dependent on personalities associated with political parties of one side of the spectrum (Cavaco Silva). The majority of presidents have shown a preference for balanced teams of councillors, mostly coming from non-partisan quarters. In Timor-Leste, the Council of State took time to establish itself, three years after independence. Xanana Gusmão inaugurated this advisory board in 2005, appointing five non-partisan citizens to fill the positions the constitution attributed to the free judgement of presidents. President Ramos-Horta did not follow a strict line on this issue. For one, he chose a member of a small, extra-parliamentary party in order to represent all those who had failed to secure seats in the House (at the time, parties running in elections that failed to secure a seat polled a combined total of circa 20% of the votes). The rationale was to “compensate” their absence in parliament, bringing them to the inner circle of political institutions. His choices included a representative from youth organizations, a woman and a resident in a remote area outside the capital. Except for one, his appointees were non-partisan, and the partisan one represented a very small organization. Anecdotal evidence suggests that presidents go to some lengths to project an image of personal power that includes the way they deal with parties, and president Ramos-Horta is a case in point. Having fought the election in competition with a Fretilin candidate that originated a runoff, he chose as his chef de cabinet an individual who was the member of that political party. Fretilin mounted a vociferous campaign against his

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choice for a prime minister, and stated it was an “opposition party”, but still was involved in important appointments. President Ramos-Horta appointed senior Fretilin cadres to serve in his civilian household and to sit in the Superior Council for Defence and Security. He nominated a former Fretilin cabinet minister to be Attorney General. All the moves were made with the purpose of establishing for the president a position above party competition, and to send a signal of political inclusiveness. Foreign Relations Both the CRP and the CRDTL devote a special section to “presidential competences with regard to international relations” (CRP section 135; CRDTL section 87), leading one to expect that they will be substantial. It is known that other semi-presidential countries instituted a “reserve of power” for their presidents in this domain, sometimes along with other competences in matters of defence. That is the well-known case of France. One example of the important role of presidents in international relations is their task to represent their countries in the European Union Council. France, Lithuania and Romania are represented by their presidents, whereas all other semi-presidential republics in the Union are represented by their prime ministers.16 The content of these specific sections of CRP and CRDTL, however, is rather modest. In the case of Portugal, the president is supposed to appoint ambassadors nominated by the government, to accept credential letters from foreign diplomats, to ratify international treaties “after their approval”, and to have a decisive word in the declaration of war and making peace. In Timor-Leste, presidential powers in this domain are slightly stronger, as they include “conducting, in consultation with the government, any negotiation process towards the completion of international agreements in the field of defence and security”. In both cases, they leave ample room for the government to conduct the foreign and defence policies of the country, and presidential power of initiative is virtually non-existent. In the past, Portuguese presidents disposed of one area in which they were directly involved and disposed of the power of initiative: the 1976

16 Other current semi-presidential member countries in the UE are Austria, Bulgaria, Croatia, Czech Republic, Ireland, Finland, Poland, Slovakia and Slovenia.

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Constitution prescribed that in matters pertaining to Macao and TimorLeste, by then Portuguese “overseas territories”, presidents had direct responsibilities to achieve their decolonization process. In 1999, with the devolution of Macao to the sovereignty of the People’s Republic of China, and the UN-sponsored self-determination referendum in Timor-Leste that returned an overwhelming desire of its population to proclaim independence, those powers were naturally extinguished. While they existed, they were a source of friction between presidents and governments. The powers to declare war and make peace have never been used in either country. Constitutional provisions for the declaration of war and making peace are more stringent, and in those cases the president may only act following a governmental proposal, and after consulting with the Council of State (Portugal) or the Supreme Council for Defence and Security (Timor-Leste), and following an authorization granted by their respective parliaments. There has been no reason to test these provisions. The only time such an initiative came close to materialize, in Portugal, took place in 2003 when the prime minister contemplated the possibility of sending national troops to Iraq—an issue that has been discussed in a previous section of this chapter. Other Presidential Powers Apart from the critical powers bestowed upon presidents that have just been discussed, constitutions prescribe that they have other competences. Some are of ceremonial nature—competences in protocol, attribution of decorations and clemency (granting pardons and commuting sentences). These powers are highly symbolic and nurture the ethos of the presidency as the “first and highest magistracy of the nation” (as it is often referred). One should not disregard the importance of some protocol prerogatives of the president of Timor-Leste. The country is undergoing a process of nation-building and solidifying its national identity (Leach 2017) in which the veterans of the liberation struggle and the martyrs who perished fighting for independence are treated as critical elements of the nationalist narrative. Both the veterans and the martyrs require proper attention by public powers (Kent and Feijó 2020), and presidents have been called to play a highly symbolic role in honouring those heroes, “awarding honorary titles, decorations and merits” (CRDTL section 85j). The fact that these actions are performed by the individual who is constitutionally the “symbol and guarantor of national independence and unity”

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(CRDTL section 74–1) reinforces their meaning and is eagerly expected by the community of citizens. Others powers, characterized by their exceptionality, offer ground for presidents to assert their authority and their condition of hierarchical superiority in regard to all other organs of sovereignty. Two will be considered in this section: (i) the power to determine the realization of referendums (CRP section 134c; CRDTL section 85f); (ii) the power to declare the state of emergency or the state of siege (CRP sections 134d, 138 and 19; CRDTL section 85g) Portugal has a limited experience with referendums, which were only introduced in the constitution in the 1989 revision (Filipe 2016). Only three were ever organized. Two of them took place in 1998 (one of them on the “voluntary interruption of pregnancy”, the other on the regionalization reform). In both, the “no” was the winner. Even though the minimum number of voters (50% of registered electors) was not attained, and the referendums could not be declared as binding, the parliament accepted their results. In 2005, socialist prime minister José Socrates proposed to rerun the vote on abortion, but president Sampaio, also a socialist, argued that the timing was not right and refused to call the referendum. In 2007 the prime minister insisted, and then Cavaco Silva in the presidency bowed to his proposal. The “yes” was the winner, again without binding support, and a new law accommodating the result of the referendum was enacted (Feijó 2009). No other referendum has ever been formally proposed. The episode of 2005 reveals the extent to which the power to call a referendum helps place the president in the centre of political life. In Timor-Leste, despite being specifically considered in its constitution (section 66), the referendum still awaits legislation that would translate the constitutional provisions into a common law. The country, however, counts one critical referendum in its recent history: on August 30, 1999 a UN-sponsored and organized self-determination referendum showed the overwhelming desire of the people of Timor-Leste to break away from the Republic of Indonesia and become independent. This poll counted on a participation of 98.6% of registered electors, and the result was clear: 78.5% voted for independence. Presidential powers in regard to the states of exception place presidents at the apex of the institutional pyramid. In both Portugal and TimorLeste the declaration of the state of emergency or the state of siege is

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a presidential prerogative. However, presidents must act in close articulation with other organs of the state. The Portuguese constitution stipulates that such declarations must be preceded by the “audition” of the government, and by a formal authorization of the Assembly of the Republic. According to its constitution, in Timor-Leste parliamentary authorization is also required, alongside the “audition” of government as well as of the Council of State and the Superior Council for Defence and Security. However, in 2008, at a time when a state of emergency had been effectively declared, the parliament approved Law 3/2008 which reinterprets the constitution and installs a governmental proposal as a requisite for the presidential declaration. In both countries, presidents need the agreement of their parliaments to make such a declaration; however, if parliaments consider it necessary to declare the state of emergency or the state of siege, they cannot do it without the presidents’ ultimate decision. Although states of exception are, by definition, rare events, TimorLeste experienced two in a short period, between 2006 and 2008. In 2006, at the height of the severe crisis that shattered the fragile institutional arrangements put in place in the wake of the proclamation of independence, president Xanana Gusmão proclaimed the state of emergency on May 30, having consulted with the Council of State (a special meeting to which several important players who were not members were invited to attend) but foregone the constitutionally prescribed vote in parliament. The president also declared that, as Supreme Commander of the Armed Forces, he was taking direct charge of all military and security forces, and would also be personally coordinating with international forces deployed in the territory. The constitutional grounds for such sweeping measures are open to discussion, and no formal presidential decree was ever published. The National Parliament was conscious of this fact, and soon after the situation was brought under control with the appointment of the II Constitutional Government headed by José Ramos-Horta, it decided to issue a declaration retroactively approving the “extraordinary measures taken by the President of the Republic to overcome the crisis”. Declaration 12/2006 was approved by unanimity. In 2008, rebel soldiers ambushed president Ramos-Horta and severely wounded him. He was evacuated for urgent treatment to Australia, and the speaker of National Parliament was sworn as interim president. The same day, prime minister Xanana Gusmão was equally ambushed, and he escaped unhurt. Xanana Gusmão went on TV to announce a 48 hours curfew and state of emergency. The interim president had duly signed

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the declaration after receiving parliamentary support and consulted with the Council of State. Parliament would vote twice to extend the state of emergency for one month at a time in the whole of the territory, and others to keep its place in several districts where rebellious soldiers were active. Even though a new law was introduced to regulate the declaration of the state of emergency and the state of siege, in the confusing political and institutional landscape that followed the ambushes, the prime minister played a role that was accepted by most actors, but not necessarily in line with legal prescriptions. The fact that Xanana Gusmão is a charismatic leader, much revered even by formal opponents, facilitated the emergence of the prime minister in a prominent role. His charismatic authority also explains why he could, as president, assume a commanding role in a previous situation not totally within the constitutional rules. Both these episodes reveal the extent to which, in cases of severe disturbances, the political institutions of Timor-Leste showed their fragility. Constitutional prescriptions were not strictly obeyed. However, no attempt was made to subvert them. Rather, efforts were deployed to act within reasonable limits and to return to normality. The government of Timor-Leste asked president Lu Olo in March 2020 to declare the state of emergency in the wake of the spread of Covid-19 pandemic. The process was strangely slow, but this time all constitutional and legal procedures seem to have been strictly followed. The original aspect of the situation was the fact that very same prime minister who asked the president for the state of emergency, and obtained a mandate to govern in exceptional circumstances, had recently tendered his resignation, and his government was unable to command a parliamentary majority to approve the state budget for the year. In Portugal, the only time a state of emergency has been declared was in the context of the fight against the Covid-19 pandemic. President Marcelo took the initiative to summon a meeting of the Council of State in order to discuss the merits of such a declaration. In the period between this convocation with the public announcement of its agenda and the actual meeting, the prime minister argued for restraint and made it known he considered it premature. However, he formally supported the president and his party was among those that voted in favour in a special parliamentary session. There were no votes against the authorization, but several parties opted to abstain. The terms adopted by the president for the specific implications of the declaration of the state of emergency were moderate, and more than imposing a course of action, they offered the

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government ample room to decide on a progressive, gradual approach to the problem. A compromise was thus reached. The president, who had been in self-imposed quarantine for two critical weeks, returned in a position of command, which he shared with the prime minister.

Final Thoughts The array of competences that pertain to the realm of the presidential powers in Portugal and Timor-Leste that have just been surveyed, and are summarized in Table 4.1. sustain the important role played by presidents in the political system of both countries as an “independent” instance, and contribute to understand their distinguishing ethos. However, it is not clearly mirrored in some indices frequently used in the academic literature to gauge the importance of presidents within the political system.17 Control of legislation and power of appointment are both present in the indices proposed by Siaroff (2003) and Shugart and Carey (1992), considered here in an updated version with contributions from Metcalff (1999), Marina Costa Lobo and Octávio Amorim Neto (used in Lobo and Neto 2009). But the very influential power of the word that allows presidents to play a critical role in the setting of the political agenda, and the function of presidents as supreme commanders of the armed forces are not specifically mentioned, nor can they be subsumed under any of the items that compose those indices. They contribute in singular manners to define the realm of presidential prerogatives as distinct from the executive, and to sustain a pivotal role for presidents in the political system of checks and balances. Further discussions of presidential powers should aim to incorporate a broader array of competences, namely those that are present in cases in which presidents are neither leaders of the parliamentary majority nor of the opposition to the government that responds before the House, but have carved for themselves a different role that has proved to be—at least to a large degree—an antidote to the emergence of clashes of legitimacy over policy design, as might occur given their vast powers in relation to the formation, control and termination of the government’s life. Analysis of the relations between presidents and prime ministers must not remain prisoner of the dilemma between actively supporting or alternatively opposing the two political figures. This implies 17 See Doyle and Elgie (2014) for a critique of several measures of presidential powers and a proposal to maximize their reliability and inclusiveness.

Foreign relations

Appointment/dismissal

Legislative intervention

Power of the sword

Informal

(continued)

Agenda setting Convene and address parliament Address the nation Address other organs of sovereignty Regular interlocution with PM Public speeches Organization of presidential initiatives Media coverage of public events Defence and security supervision Appointment/dismissal of military commanders Authorization for military engagement Legislative supervision Veto • Simple majority override • Qualified majority override Constitutional referral Global governance supervision Government appointment/dismissal Dissolution of parliament Appointment/dismissal of top public officers • Following government proposal • Own initiative Diplomatic supervision

Main powers of presidents according to the constitutions and the established practices in both countries

Power of the word Formal

Table 4.1

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Symbolic

Others Effective

Table 4.1

(continued) Declare war/make peace State representation Organize Referendums Declare states of exception Clemency Attribution of decorations

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taking Duverger seriously when he considers the three types of situations that we have evoked earlier, and contemplate that the notion of “cohabitation” may not be adequate for all forms of semi-presidentialism in which presidents and prime ministers are not from the same party— it may plainly be a vision out of focus when “independent presidencies” occupy the scene. In fact, the terrain is different when the presidential function is envisaged in line with the notion of “moderating power” that tends to be exercised by “independent presidents”.

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Feijó, R. G. (2009). O Refrendo de 11 de Feveriro de 2007. Sentido e alcance da primeira vitória de Sim numa disputa referendária em Portugal. In M. V. Cabral, M. C. Lobo, & R. G. Feijó (Eds.), Portugal: uma democracia em construção. Ensaios em homenagem a David B. Goldey (pp. 175–216). Lisboa: Imprensa de Ciências Sociais. Filipe, A. (2016). O Referendo na experiência constitucional portuguesa. Coimbra: Almedina. Franco, V. (2017). Semipresidencialismo em Portugal: Poderes Presidenciais e Interacção com o Governo (1982–2016) (PhD Dissertation). Faculdade de Ciências Sociais e Humanas da Universidade Nova de Lisboa, Lisboa. Freitas do Amaral. D. (2008). A Transição para a Democracia. Memórias Políticas II (1976–1982). Lisboa: Bertrand. Frye, T. (1996). A Politics of Institutional Choice: Post-communism Presidencies. Comparative Political Studies, 30(5), 523–552. Jalali, C. (2011).The President Is Not a Passenger: Portuguese Evolving Semi-presidentialism. In R. Elgie, S. Moestrup, & Y.-S. Wu (Eds.), Semi-presidentialism and Democracy (pp. 156–173). Basingstoke: Palgrave Macmillan. Kent, L., & Feijó, R. G. (Eds.). (2020). Timor-Leste’s Dead as Ancestors, Maryrs and Heroes. Amsterdam: Amsterdam University Press. Koker, P. (2017). Presidential Activism and Veto Power in Central and Eastern Europe. London: Palgrave Macmillan. Leach, M. (2017). Nation Building and National Identity in Timor-Leste. London: Routledge. Lobo, M. C., & Neto, O. A. (2009). O Semi-presidencialismo nos Países de Língua Portuguesa. Lisboa: ICS. Lopes, P. S. (2013). Pecado Original. O choque constitucional entre Belém e São Bento. Lisboa: D. Quixote. Metcalff, L. K. (1999). Measuring Presidential Power. Comparative Political Studies, 33, 660–685. Miranda, J. (1997). A experiencia portuguesa de sistema semi-presidencial. Direito E Cidadania, 1, 9–25. Neto, O. A., & Lobo, M. C. (2009). Portuguese Semi-presidentialism (Re)considered: An Assessment of the President’s Role in the Political Process, 1976–2006. European Journal of Political Research, 48(2), 234–255. Novais, J. R. (2010). Semipresidencialismo Volume II: O Sistema Semipresidencial Português. Coimbra: Almedina. Nuttall, R. E. (2017). The Origins and Onset of the 2006 Crisis in Timor-Leste (PhD dissertation), Australian National University, Canberra. Pinto, A. C., & Freire, A. (2010). O Poder Presidencial em Portugal. Os dilemas do poder dos Presidentes da Republica em Portugal. Lisboa: Dom Quixote.

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CHAPTER 5

“Moderating Power” and Partisan Presidents: Two Empirical Cases

Abstract Presidents in Portugal and Timor-Leste tend not to behave as party agents. Often they do not have party affiliation; when they do, they generally are senior figures who do not hold active responsibilities in their parties. However, the constitution allows for the existence of partisan presidents. After surveying the relations between presidents and governments in the democratic era of both countries, this chapter examines two instances in which presidents have forsaken the expected non-partisan rule and acted either as party agents or in very close association with a given coalition with significant impact on their capacity to act as moderators within the institutional system. The second term in office of Cavaco Silva and the first half of Lu Olo ongoing term are discussed in this chapter. Keywords Partisan presidents · Presidents and governments · Political congruency · Established practices · Deviation from protocol

Constitutional prescriptions in Portugal and Timor-Leste define an independent role for presidents, counter-distinguished from executive power. Electoral rules combined with party systems centred on leaders who aspire to be prime ministers favour the emergence of candidates who pledge to discharge presidential functions as moderators, distancing themselves

© The Author(s) 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5_5

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from situations in which presidents are either the leaders of the parliamentary majority, or the leaders of the minority. Using Duverger classification (1996: 516–517), they aspire to be “presidents without majority”, as President Soares proclaimed in the evening of his election. As such, the expected presidential attitude is not to be systematically pro or against the parliamentary majority and the governments of the day. By and large, presidents have performed their duties according to this principle, and because they have been credited with procedural impartiality, their popularity, where it can be measured through reliable opinion polling (Portugal), has vastly surpassed that of other politicians, and even of long-established institutions like the Catholic Church (Freire and Santana-Pereira 2017: 224). Sustaining independence in regard to governments has contributed to “maintain the president as the most popular and best-regarded figure in Portuguese politics” (Jalali 2011). Presidents tend to be regarded as the most trustworthy of all politicians, even though their role in the daily definition of political orientation is reduced. Popularity, in turn, becomes a critical weapon for presidents that significantly enlarges their room for manoeuvre. However, there are cases that defy the general principle, and deviation to the norm is consequential. This chapter examines two instances in which presidents have forsaken the expected non-partisan rule and acted either as party agents or in very close association with a given coalition with significant impact on their capacity to act as moderators within the institutional system. Before moving into those cases, one should have a general picture of the relation between presidents and governments in Portugal and Timor-Leste. That’s the purpose of Tables 5.1 and 5.2. Table 5.1 shows that only twice has there been a “congruency” between presidents and majority governments (Sampaio with Socrates’ XVII government, which lasted for about nine months; and Cavaco Silva with Passos Coelho’s XIX Government, lasting for a full legislature of four years). All other cases of congruency refer to minority cabinets. In the cases of presidents Soares and Sampaio, socialist minority cabinets did not survive in parliament thanks to arrangements with left-wing parties (which would be in line with their political family), but rather to longstanding arrangements with right of centre PSD that would abstain in critical votes to permit government alternance without the need to involve the communist party and, later, the Left Bloc in the governmental support

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Table 5.1 Presidents and Governments in Portugal 1976–2020 President

Party affiliation

Government

Parliamentary Party basis

Eanes I

Independent

I II

Minority Majority coalition Independent Independent Independent Majority coalition Majority coalition Majority coalition Majority coalition Minority Minority Majority Majority Minority Minority

PSD PSD PSD PSD PS PS

No No No Yes Yes

III IV V VI Eanes II

Independent

VII VIII IX

Congruency PR/PM

PS PS/CDS Independent Independent Independent PSD/CDS/PPM

Yes Yes Yes

PSD/CDS/PPM PSD/CDS/PPM PS/PSD

Soares I

Socialist

Soares II

Socialist

Sampaio I

Socialist

X X XI XII XIII XIII

Sampaio II

Socialist

XIV XIV

Minority Minority

PS PS

Yes Yes

XV

PSD/CDS

No

PSD/CDS

No

XVII XVII

Majority coalition Majority coalition Majority Majority

PS PS

Yes No

XVIII XVIII

Minority Minority

PS PS

No No

XIX

Majority coalition Minority coalition

PSD/CDS

Yes

PSD/CDS

Yes

XVI

Cavaco Silva I

Social democrat

Cavaco Silva II

Social democrat

XX

(continued)

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Table 5.1 (continued) President

Party affiliation

Rebelo de Sousa

Social democrat

Government

Parliamentary Party basis

Congruency PR/PM

XXI XXI

Minority Minority

PS PS

No No

XXII

Minority

PS

No

Note The column “Party” states the official affiliation of presidents at the time of their inauguration

base even though the left had the parliamentary majority.1 Cavaco Silva stands thus as a special case. As for Timor-Leste, Table 5.2 also puts in evidence the fact that only one president was inaugurated with party affiliation. For this reason, one should consider the implications of this singularity, which are consequential

Aníbal Cavaco Silva’s Second Term: “A Government, A Majority, A President” In Portugal, after 1982, “presidential” and parliamentary majorities coincided very seldom. Left-wing president Mário Soares coexisted with Cavaco Silva, the leader of right of centre PSD, first as prime minister of a minority government (1986–1987) and then of two consecutive majority executives (1987–1995), adding for nine and half out of his ten years 1 It must be stressed that parliamentary investiture is required once a prime minister has been appointed and his cabinet sworn in, as derived from the dual dependency of the government on the president and the parliament stated in both constitutions. However, parliamentary investiture does not require a positive vote of confidence. The prime minister may choose to present a motion of confidence or not. The opposition may likewise propose a vote of rejection or not. In almost every case in Portugal and Timor-Leste there has been no investiture vote (the exceptions being the rejection of the III Constitutional Government of Nobre da Costa in November 1978, in the context of governments of presidential initiative under President Eanes, the XX Constitutional Government of Pedro Passos Coelho and Paulo Portas in November 2015 and VII Constitutional Government of Mari Alkatiri in October 2017 by virtue of rejection motions tabled by the opposition). This mechanism has been considered a major contribution to the possibility of forming minority cabinets. For this reason, the “presidential majority” is by and large a strange concept to the survival of minority cabinets of his broad political family.

Independent

Independent

Independent

Fretilin

Xanana Gusmão

José Ramos-Horta

Taur Matan Ruak

Francisco Guterres Lu Olo

Majority coalition National inclusion Minority coalition Majority coalition

VI VII VIII

Majority Compromise Majority/president Majority Majority coalition

Parliamentary basis

V

III IV

I II

Government

CNRT/PLP/KHUNTO

Fretilin CNRT/PD/PSD/ Frenti-Mudança CNRT/PD/ Frenti-Mudança CNRT/PD/PSD/Fretilin Fretilin/PD

Fretilin Fretilin

Party

No

Yes/No Yes

Yes

No Yes

Yes

Congruency PR/PM

Note The “Congruency PR/PM” indicates whether the president and the prime minister are from the same political family (yes), from different ones (no), regardless of the ad hoc coalition that supported their election. In cases of congruency, minority governments may subsist on the basis of parliamentary arrangements that mobilize different parties in relation to the presidential electoral basis. The term “congruency” is taken from Jalali and Fernandes (2017) and its use preferred over “cohabitation” which is intimately bound to situations in which presidents are (and are perceived as) party agents (The issue of “cohabitation” is specifically referred to in Chapters 1, 3, and 6)

Party

Presidents and Governments in Timor-Leste 2002–2020

President

Table 5.2

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in office. The last six months of his tenure were shared with a socialist minority government. Prime minister António Guterres presided over two minority governments (1996–2002) under President Jorge Sampaio, who then had a PSD prime minister at the head of a right-wing majority coalition (2002–2005), before José Socrates became the first socialist to head a majority government (2005–2006). For nine months, there was both a socialist president and a majority government. Cavaco Silva was elected in 2006 and shared power with Socrates who headed a socialist majority government, followed by a minority executive of the same party (2005–2009; 2009–2011). After his re-election, early elections brought a right-wing coalition to power—and for the best of his second term, the right wing consolidated presidency and premiership, the second time a political family managed to combine both majorities. President Marcelo Rebelo de Sousa’s first term in office was shared with António Costa, the leader of socialist minority governments. In all, only five out of thirty five years witnessed a formal coincidence of “presidential” and parliamentary majorities. To be clear, even in the case of President Sampaio who shared power with a socialist prime ministers heading a minority government and could thus be placed in a category of its own—if one considers the alleged “congruency” between president and prime minister (Jalali and Fernandes 2017)—the parliamentary support for the prime minister did not come from other left-wing parties who had endorsed him and were part of the “presidential majority”. That is to say: “presidential” majorities had hitherto not been translated into a political, parliamentary majority. Prime ministers do not need a formal positive vote of investiture, and prior to 2015 the communist party and the Left Bloc never voted in favour of state budgets or any major structural legislation. The left had the majority of seats in parliament, but at that time did not act as a political converging family. However, existent analyses of President Sampaio’s political attitude towards governments suggests he did not substantially alter his stance with respect to successive prime ministers. For instance, the use of veto powers—presumably a major weapon of presidential opposition to governments—was mostly constant and independent of the premier, exception made for the short-lived Santana Lopes executive (Rapaz 2017; Franco 2017). The case of Cavaco Silva’s second term in office stands out of the norm. For one, it is the longest case of a coincidence between “presidential” and parliamentary majorities, and one in which, at a theoretical level,

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the coincidence of majorities had conditions to be politically consequential, as the two parties on that side of the spectrum had a track-record of forming government coalitions. Although his campaign was run on the principle of replicating the first one, and denying party leaders a place on the trail (Salgado 2007: 514), on election night the winner assumed a new posture. In my winning speech […] I thought I should not ignore what the other candidatures had done during the campaign. I made it clear that my victory had been the victory of truth over calumny, that honour had vanquished infamy. […] I was accused of not being dignified and tolerant at the hour of triumph. (Cavaco Silva 2017: 81)

In brief: there had been winners and losers. Cavaco Silva was a winner with a plan to introduce changes in the political landscape. His inauguration speech would make those intentions clear. My speech caused profound discontent in the government, and that did not surprise me […] I decided that in my second term inauguration speech I ought to make a significant intervention with the aim of putting pressure on the government to change course and adopt new policies destined to overcome the crisis which was becoming increasingly clear […] It was a patriotic duty to point out the way forward. (Cavaco Silva 2017: 432–433)

Two weeks later, the prime minister submitted a critical aspect of his policy to a vote in parliament which he claimed would act as a confidence motion of confidence and was defeated. The right-wing parties broke with the tradition of allowing for the subsistence of socialist minority governments and were joined by forces to the left of government, a situation that had not occurred since the fall of Mário Soares first government back in 1977. Doors were open for early elections—the first ever to fall under the label of “honeymoon elections” that are common in other semi-presidential regimes, like France—and the right-wing political parties benefitted from “coattails effect” and were returned with a majority, albeit one that necessitated the coalition. The convergence between presidential and parliamentary majorities went further than a mere “congruency”: it was the bedrock for the ensuing years. The analysis of the president’s position in the new political landscape is complex.

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In 1980, the right-wing political family devised a slogan—“a government, a majority, a president”—with two short-term goals. It was regarded as an inspiration for a far-reaching constitutional reform that would reinforce presidential authority and be subsequently put to a plebiscite—but, as we have seen in Chapter 2, did not materialize. It was also aimed at providing a political basis for a presidential campaign in which party leaders stood on the back seat, endorsing a military as a figurehead destined to play a secondary role. It is not clear what to infer from the survival of this political slogan: who should lead the majority— the president or the prime minister? Elsewhere, I have referred to this ambiguity and its impact on the current situation as Sá Carneiro’s dream turned into Cavaco Silva’s nightmare (Feijó 2013). From his long experience as prime minister, a soundbite he once pronounced was repeated time and again: “Please allow us to carry out our work” (Cavaco Silva 2004). This dictum, together with his generalized use of the expression “blockage forces” in which the presidency was included, and referred to all horizontal accountability instances, found their roots in his interpretation of the constitution that stressed the importance of the parliament as the true centre of powers and consequently reduced those of the president. Cavaco Silva’s long experience as prime minister made him prisoner of his own past words, associated with a minimalist interpretation of his new functions. No study exists on the internal life of the president’s party at this time. However, it is known that the man who took the partisan leadership and would become prime minister—Pedro Passos Coelho—had been, as leader of the party’s youth organization, an irreverent critic of then prime minister Cavaco Silva. Later on, he would mount a challenge for the leadership against Cavaco Silva’s close friend and political ally Manuela Ferreira Leite, an unsuccessful move that sent him into the wilderness for a while. He eventually returned with a comfortable victory after she lost the 2009 legislative elections. Parties with broad ideological breadth such as PSD accommodate diverse tendencies or even factions. Cavaco Silva and Passos Coelho were not necessarily in the same wavelength. Cavaco Silva—the longest serving Portuguese politician in office (one year as finance minister, ten years as prime minister and another ten as president)—construed a public persona in which he stressed his technical rather than political expertise. As a graduate in Public Finance (York University), he considered himself particularly capable of taking technically sound decisions in economic matters. This public persona was helpful

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in electoral terms, but a liability in terms of his second mandate when the Eurocrisis struck Portugal. Cavaco Silva had espoused very expansionist policies both a minister for finance (1979–1980) and while serving as prime minister, benefitting from the first wave of EU funds. The situation after 2008 was different, and even more so after Portugal avoided bankruptcy by calling in the troika (European Union, European Central Bank and International Monetary Fund) for a bailout. A significant new context emerged, and the president may have found it hard to combine past experiences with new requirements. It was also difficult to encompass the alleged technical expertise in public finances with the devastating effects of the policies being pursued on jobs, salaries and pensions acutely felt by the population. The situation was further compounded by the fact that the prime minister and his junior coalition partner espoused a radical, neoliberal stance summed up in the expression “We must go beyond what the troika demands”. The existence of a congruity between presidential and governmental majorities did not mean that tensions over policy orientation were not running deep inside the political establishment. Cavaco Silva appeared at times to distance himself from governmental choices, and took some initiatives. In 2012, just after the government announced a major change was to take place in the way social security is funded—by increasing the part paid by the workforce and reducing that of the employers—prompting the largest demonstrations in a generation, he convened the Council of State where the prime minister realized he had to withdraw the new legislation. This episode has not been interpreted as placing pressure on the prime minister but rather to offer him an escape route from the path he had chosen that was proving untenable. In a New Year’s address to the Portuguese, Cavaco Silva hinted that the government was travelling a “negative spiral” path leading to recession— but the prime minister soon responded by restating his position and not changing cap. Perhaps the boldest initiative took place in 2013, when the minister for finance who had been responsible for what he admitted was a “brutal tax increase” resigned his post. He was soon followed by the “irretrievable” resignation Paulo Portas, the leader of the junior coalition party (which was subsequently transformed into a governmental promotion). A major crisis was installed, and the prime minister managed to articulate a governmental reshuffle to overcome it. Instead of accepting the governmental reshuffle proposed by the prime minister, the president addressed the nation with a call for a “national salvation compromise” (Cavaco Silva 2018: 251–280). His suggestion was that the right-wing

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coalition should negotiate with the socialist party a broad-based, one-year long solution for the crisis, after which he would dissolve the parliament and call early elections. This would represent the “re-instauration of the spirit of compromise and inter-party confidence that had led to the Pact for Financial Assistance”, and had three explicit pillars. This was a major initiative through which Cavaco Silva sought to expand on the notion that the president is a moderator who can intervene in the political arena to facilitate new arrangements. The socialist leader was put under enormous, conflicting pressure from those who believed he had a political duty to cooperate, and those who believed this to be a political suicide for the leader of the opposition, and accepted the challenge. The prime minister and his rearranged team could not recuse themselves from the exercise, even though they showed no apparent enthusiasm for the scheme. An aide to the president acted as moderator, chairing the negotiations table. However, the government parties did not emerge as willing to make concessions that would have habilitated the other part to shown a significant gain. The articulation between the president and the prime minister had not been secured before the appeal went public. After several weeks of negotiations, talks were suspended without agreement. Cavaco Silva shifted the blame to the socialist leadership (2018: 278) and finally accepted the government reshuffle that had been proposed before. What might have been a successful intervention in the political crisis turned out to be an outright failure. Contrary to what Carlos Jalali (2011) had expressed when referring to past experiences, the president was now mostly a passenger in a moving car. In the dilemma represented by the alternative to respond to public sentiments or to abide by international pressures, the president followed the lead of his prime minister (Freire and Santana-Pereira 2017). As he would later express, A president serves better his country if he adopts a constructive approach and searches for his own space in the implicit powers of influence rather than using the negative powers conferred by the constitution, such as veto power and the competence to dissolve parliament. (Cavaco Silva 2017)

In the light of this statement, one should not be surprised to verify that during his second term in office Cavaco Silva made a very scarce use of his veto powers, as opposed to his first term: he was the president to use more consistently this power (Franco 2017: 358). Vasco Franco and Paulo José Canelas Rapaz have both studied in depth this issue. Franco (2017: 352)

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shows that in the period during which Cavaco Silva coincided with a rightwing government he only issued 3 political vetoes on laws emanating from the Assembly of the Republic, whereas he had used this power 12 times against Socrates majority government, and in the few months of António Costa minority executive he used it twice. This is in contrast to the previous experience of Portuguese presidents who are allegedly more prone to make use of this power in their second rather their first terms (Rapaz 2017). Placed before a political platform of his government that was very ideologically marked, Cavaco Silva opted to promulgate controversial pieces of legislation without prior referral to the Constitutional Court. However, there is the possibility to require the “successive appreciation” of the constitutionality of laws, that is, to ask the Court to decide whether approved laws met constitutional provisions. The narrative of the “forces of blockage” returned in force, as the Constitutional Court decided on many occasions that legislation promulgated by the president was not in line with constitutional provisions, prompting accusations of “political activism” on the part of the court. The image emerging from these data is that of a president who significantly reduced the horizontal accountability function of his mandate. In fact, “Cavaco Silva was the only civilian president who saw his use of ‘legislative’ powers be reduced in the second term as compared to the first” (Freire and Santana-Pereira 2017: 231). As a result of the projection of the image of a president under the influence of the prime minister who controlled the destiny of the country despite the official hierarchy, the confidence of the Portuguese in the presidency plummeted from 73.4 in 2008 to 36.3 in 2014—and probably further down until 2016 (Freire and Santana-Pereira 2017). Presidents have managed, by and large, to secure for the presidency the first place among the institutions that deserve public confidence, and it is not normal for figures to be lower than 50, sometimes reaching over 70. The public rate of satisfaction with Cavaco Silva, at the end of his term, was—12.9 in Expresso’s monthly polls—the only president ever to record a negative score (Teixeira 2016). This steady fall in popularity owes much to the association of the president with government’s policies. Whereas the independence of previous presidents had allowed them to keep high popularity even when governments disposed of low esteem because they were viewed in separate, Cavaco Silva failed to distance himself from the unpopular measures of the executive that translated in severe cuts in salaries and pensions, rising unemployment, downgrading of public utilities and extensive privatization measures. This public perception was

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combined with a series of unfortunate public statements that created an image of a cold man, distant from his people’s concerns, such as his lament that his pension—which he had preferred to his official salary when the two could no longer be combined—in spite of being more than twenty times higher than the minimum salary, was not enough for him to live a comfortable life without having to mobilize his savings. This was said at a time when salaries and pensions were being severely cut and generated a heated public reaction. Cartoonist Luís Afonso, who works for the mainstream daily Público famously captured the mood in the country in a strip of his Bartoon series whose captions read: Barman: The actions of Cavaco Silva may serve as a model for the candidates to the presidency when they reach their goal. Client: Do you think so? Barman: Of course. They just need to look at what he does and do the opposite

All this impacted his popularity and thus his capacity to engage public opinion on his side and to influence the course of political action.

Francisco Guterres Lu Olo and the Return of “Belligerent Democracy” The 2017 elections returned the first president of Timor-Leste to be a flag-bearer of his party—although not the top leader. Francisco Guterres aka Lu Olo (born 1954) is chairman of Fretilin, not its secretary-general. He was the top party official inside the territory in the last years of the Resistance struggle. Lu Olo represented his party in the 2007 and 2012 polls, coming ahead on the first round, but failing to forge a winning coalition for the runoffs. At his third attempt, he was crowned with success. Unlike what had happened before, Lu Olo was able to attract the support of Xanana Gusmão in the wake of the emergence the “Government of National Inclusion” (VI Constitutional Government, 2015–2017) which received the support of all parliamentary parties of the Third Legislature. Fretilin remained officially an “opposition party”, but the prime minister and some key ministers were members of its central committee. In fact, Fretilin was part of the government formula which all partners claimed was destined to endure. Electing Lu Olo was thus part of broader power-sharing arrangements—locally dubbed “consensual

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democracy”—that were presented as overcoming the reluctance to elect formal party members prevailing in the previous three elections. In the legislative elections that followed the presidential poll, in July 2017, the parties in government obtained a landslide victory. The continuation of the success formula was thought to prevail. Fretilin returned to its position as largest party by a mere thousand votes over CNRT, both slightly below 30%, with PD—Partido Democrático/ Democratic Party— coming in fourth place with 10%.2 The three parties combined secured 52 out of the House’s 65 seats—but unexpected developments brought in new scenarios and mobilized the president’s intervention. The secretarygeneral of Fretilin, Mari Alkatiri, claimed for himself the post of prime minister—which Xanana, as leader of the largest party in the previous elections had relinquished in favour of a Fretilin cadre of the “Gerasaun Foun” (the generation of those who had come of age under the Indonesian occupation). Alkatiri’s claim shattered the basis for the continuation of the previous government formula. Xanana Gusmão decided he would rather lead the opposition. Former President Taur Matan Ruak’s new party who had campaigned with a platform highly critical of the incumbent government’s strategic option, came third on 12%, and also declared it would sit in the opposition. Fretilin was left to negotiate with PD and a newcomer to parliament, KHUNTO—Kmanek Haburas Unidade Nacional Timor Oan/Enrich the National Unity of the Sons of Timor. President Lu Olo feared the consequences of having two powerful and popular figures sitting in the opposition, and convened a meeting for which he required the presence of Fretilin, CNRT and PLP leaders in person. In so doing, he was exercising a critical competence of presidents in the formation of governments, as derives from the constitution: The Fundamental Law confers exclusively upon the president the leadership of the process leading up to the formation of the new government and the final decision on that issue: the appointment of a prime minister who has proved his or her ability to form a government and to obtain the necessary parliamentary support to discharge its constitutional function. In this light […] one should exclude the parliamentary logic that would

2 Another junior partner of the ruling coalition, Frenti-Mudança, did not reach the necessary 4% threshold and did not take any seat.

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tend to reduce this presidential power to a mere passive arithmetic operation and transfer to the national parliament the political onus to reject the government. (Vasconcelos 2011: 349)

It was the first time the active role of the president in the negotiations for the formation of government, going beyond the statutory audiences with parliamentary parties, were made public. President Lu Olo was not able to persuade Xanana Gusmão or Taur Matan Ruak to accept Alkatiri’s conditions, nor Alkatiri to bow to the other leaders’ demands. Meanwhile, PD and KHUNTO were prepared to negotiate with Alkatiri. While conversations were being held, the parliament elected its speaker with the votes of Fretilin, PD and KHUNTO. With slightly less than 30% of the vote, Fretilin was on the verge of controlling the three most important public positions: the presidency, the premiership and the speaker of the House, a situation that was described as meaning an excessive concentration power. At the time of the First Constitutional Government headed by Fretilin, many observers had noted an “authoritarian temptation” which the party grounded in its assumption it enjoyed “historical legitimacy” to be a dominant party, inspired by the model of Mozambique where many of its leaders spent long years in exile (Siapno 2006; Simonsen 2006; Vasconcelos and Cunha 2009; Leach and Kingsbury 2012). Mari Alkatiri (2014) had recognized in a self-critical mood that “political exclusion generates conflicts”. Fears of a return to the past ran high. KHUNTO soon pulled out of the agreement negotiations, and Alkatiri presented Lu Olo with a proposal for a minority cabinet. Lu Olo took the bold decision to accept the first-ever minority executive in Timor-Leste’s history. By mid-September, Timor-Leste had a minority government, and a president politically engaged with it. It would prove to be the beginning of troubled months.3 The CRDTL stipulates that, after being appointed by the president, governments need to be invested in parliament (Vasconcelos 2011: 356). Investiture does not imply that a vote of confidence be proposed. If no rejection motion is presented, the government is invested in full functions. The three parties that had not come to terms with Alkatiri presented in

3 I have contribute several blog posts to “Presidential Power Blog” initiated by the late Robert Elgie, covering the main steps in the evolution of the political situation in Timor-Leste. They are useful for details that have to be omitted in this book.

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mid-October a rejection motion which was passed 35 vs. 30 votes. Investiture was denied. In such cases, the government has a chance to submit a revised version of the programme or a reshuffled cabinet, eventually with a different partisan composition—but the opposing parties formalized a political coalition that would make it difficult to reverse the sense of the second vote. Alkatiri delayed the presentation of the second programme much beyond the thirty days that are considered a maximum deadline and the opposition parties reacted to the delay by tabling a motion of no-confidence in mid-November, destined to provoke the dismissal of Alkatiri, escalating the political confrontation. The speaker of the House, in turn, refused to inscribe the motion in the agenda and, after consulting with the government, suggested it should be brought to the assembly at the end of January. In yet another escalation, the opposition tabled a motion to remove the speaker, which he referred to the judicial power. In the meantime, the government kept its caretaker nature, and was unable to submit a new budget for 2018. The regular functioning of democratic institutions was thus clearly put into question as government and parliament were failing their constitutional duties. A major task of the president was to restore normality. Lu Olo had various options: to dismiss Alkatiri and ask Fretilin, as the largest party, to try and form a different government; to ask the opposition majority coalition to indicate a prime minister and form an executive or to wait until he was legally entitled to dissolve the parliament (which is protected by a six-month buffer after its election). The president took the view that was supported by his own party, and opposed by the other parties: for the first time in Timorese history, he dissolved the parliament and called fresh elections for May 22. In practical terms, this meant that Timor-Leste lived the best part of a year with a caretaker government unable to pass a new budget—a stressing factor for an unconsolidated democracy. Lu Olo’s action along the process was in contravention with established conventions for the president’s attitude: he failed to acknowledge the existence of a post-electoral majority coalition (a route José RamosHorta had followed in 2007) and insisted on appointing the leader of the single largest party. He followed precisely the route that his party was publicly defending, moving away from a neutral stance that previous presidents had preferred. The May 2018 elections returned a coalition formed by Xanana’s CNRT, Lu Olo’s PLP and KHUNTO. President Lu Olo could not but

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appoint this coalition’s chosen name for the post of prime minister. Taur Matan Ruak became head of government. However, President Lu Olo refused to accept a dozen names proposed by the prime minister to take ministerial portfolios—almost all of them representing CNRT. The VIII Constitutional Government was sworn without key ministers, namely those who would hold finance, natural resources or health. Despite the fact that would-be ministers were hired as “advisors” to the ministry they were supposed to head, CNRT, the largest party in the coalition and second largest in parliament, had a very limited presence in the cabinet. The president had a direct influence in the composition of the cabinet by virtue of his power to refuse appointments. President Lu Olo’s decision was based on two sorts of arguments. First, he claimed—and rightly so—that both José Ramos-Horta and Taur Matan Ruak as presidents had rejected names proposed by prime ministers. The constitutional provision that stipulates that presidents appoint government members upon a formal proposal from prime ministers (CRDTL section 86 h) gives them room to reject those proposals. The second argument was that those individuals either lacked “adequate moral standing” or were involved in corruption schemes. Judicial authorities stressed none was actually being investigated or under suspicion. As a reprisal, the majority of deputies in parliament repeatedly refused President Lu Olo’s requests for authorization to travel abroad on official missions—to the UN, to the Vatican or to Portugal. The tug of war escalated with President Lu Olo’s withholding appointments for TimorLeste’s ambassadors in a dozen countries. In brief, relations between the president and the parliamentary majority deteriorated significantly. Using an expression coined by Agio Pereira (2014), “belligerent democracy”— i.e. a form of democracy based on strong competition between parties, with little or no room for compromise—returned to Timor-Leste. The president was acting ostensibly against the parliamentary majority, and the majority in the House responded in kind. President Lu Olo and prime minister Taur Matan Ruak were officially engaged in “negotiations” regarding the completion of cabinet. None showed any signs of moving from their positions. In early 2020, CNRT took a bold initiative. After criticizing the proposed budget to the extent that the prime minister had to withdraw the first draft from the House, it actually voted in a manner that prevented the second draft from being approved. Behind this decision was an attempt to force the “negotiations” to come to terms. In fact, they did, but not on CNRT’s

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terms. Prime minister Taur Matan Ruak proclaimed the ruling coalition as “dead” and tendered his resignation. Formally, president Lu Olo did not react to the premier’s resignation. Political manoeuvring took place, and a new majority coalition bringing together Xanana’s CNRT, PD, KHUNTO and three smaller parties (each one with a single seat in the House) was formed and overcame some unprecedented formal requirements set out by Lu Olo. Fretilin and PLP supported the continuation of Taur Matan Ruak as premier—but they were short of a majority. In the meantime, the Covid-19 pandemic knocked on Timor-Leste’s door, and the country moved to a “state of emergency” during which there was an actual suspension of partisan competition. Timor-Leste is a country with a fragile economic structure. Public finances and governmental spending play critical roles in the performance of the economy, heavily dependent on fossil fuel exploration that feed a Petroleum Fund and, indirectly, the state budget. The avatars of state budgets—the budget for 2018 was only approved in November of that year: the one for 2019 was vetoed by the president and took time to be amended in parliament; the one for 2020 twice rejected in the House, prompting the country to live under “duodecimal instalments” that restrict the capacity of governments to assure a normal flow of money—have been indicated as major cause for poor economic performance in those years (Leach 2019; Cabasset 2019; Feijó 2018, 2019a, b, 2020). Foreign aid to development is also of significant importance, and the role of ambassadors in securing a smooth functioning of agreements not despicable. The fact that Timor-Leste had for an extended period vacant posts in many countries impaired the flow of foreign aid. In fact, after several years of economic growth, some with quite significant results, the years under Lu Olo have witnessed negative or very feeble growth closely associated with political uncertainty and instability

Coda: Theme and Variations Presidents dispose of a degree of liberty to interpret the boundaries of their mandates and perform according to their own discretion or reading of constitutions and norms. In some cases, presidential actions may cross a line that invalidates them. It would be the (theoretical) case of a decision to dissolve parliament under a state of emergency or siege, or in specific periods in which the legislative chamber is protected, which would be declared null and void (CRP section 172; CRDTL section 100.1). Other

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infractions to the norm may imply the president’s impeachment (CRP section 130; CRDTL section 79). The possibility of impeaching president Taur Matan Ruak was raised when he decided to appoint a new general chief of staff of the armed forces in contravention to the constitutional requirement to act upon a formal proposal by the government. He gave up on his decision and withdrew the appointment. Most presidential decisions are not prone to be legally questioned. However, they can be politically judged, and the effectiveness of those actions towards guaranteeing specific goals can be evaluated. Cavaco Silva exchanged procedural impartiality for active support to a governmental solution which had majority support in parliament. Presidential and governmental majorities were thus aligned in a mode that evoked the old Portuguese right-wing motto “a government, a majority, a president”. He did so under severe conditions imposed by the financial crisis that struck the country hard after 2011, and supported a radical, neoliberal platform. Horizontal accountability was significantly reduced. The price he paid was a marked loss of popularity, which reached negative scores—never before observed under democracy—in the last phase of his term. Apart from the effects this may have had on his pride, it was politically consequential. After the 2015 elections, Cavaco Silva thought he might follow the political doxa that indicated the largest party or coalition should form the new government. It had always been the case, even though no coalition had been in minority. Parliament indicated these were different times when the speaker was elected by virtue of a convergence of left-wing parties that never before had pulled their votes together. The president insisted on appointing a minority executive. For the first time, the opposition tabled a rejection motion on its programme and the XX Constitutional Government collapsed—the shortest in Portuguese modern constitutional history. The leader of the socialist party was then appointed to lead a minority cabinet supported by a confidence and supply agreement. This marked the end of the so-called “arch of governability” that brought together the left of centre socialists and the right of centre PSD and CDS for forty years, meaning only those parties could aspire to be in a position to directly influence government. The lengthy process of presidential interlocution with the prime minister to be is described in his memoirs (2018: 388–420) that reveal the extent to which he tried to limit the implications of the electors’ choice. In his address at the inauguration ceremony, Cavaco Silva expressed his reservations to the new government formula, and referred to the existence

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of political benchmarks that would condition the necessary presidential confidence for the government’s survival. He later commented: “The birth of a government was concluded that breaks with a tradition of forty years of democracy [and] by virtue of the efforts deployed to minimize the risks associated with an unprecedented government, I was regarded by various analysts as the face of the resistance to the rupture” (2018: 419). Cavaco Silva found himself in a position in which he did not dispose of formal pouvoir d´ empêcher (given that there was a coincidence between the last six months of a presidential term and the six months protecting a new parliament, both implying the legislative cannot be dissolved) nor his voice was recognized by the public opinion. His successor in the presidency, coming from the same political right of centre family, politely abandoned those benchmarks and the negative attitude towards the prime minister, returning to a traditional interpretation of the presidential function. The XXI Constitutional Government would last the remainder of the four-year legislature. It was a political defeat for Cavaco Silva. Francisco Guterres Lu Olo took the theme and introduced a variation: he decided to align his positions with those of his party, which was a minority one. Even though Fretilin had the largest bench as a single, individual party both in the 2017 and the 2018 elections, it failed to negotiate a majority in the House. The first presidential option was to offer its leader the possibility of forming the first minority government in the history of Timor-Leste. This solution was brought down by the parliamentary opposition, and the country was kept with a caretaker government for the best part of one year. Early elections placed the president and the majority coalition in opposing camps. The president appointed a new prime minister, but refused to nominate a significant number of ministers. For the ensuing year and a half—until the Covid19 pandemic brought normal political competition to a stand-by—the country had a government with reduced capabilities. The first three years of Lu Olo term in office were thus marked by high political instability and reduced governmental capacity. His pouvoir de statuer collided with parliamentary majorities he opposed, and his pouvoir d’empêcher contributed to stalemate. The political situation in Timor-Leste reads like a textbook on the perils of dual legitimacy. Both Aníbal Cavaco Silva and Francisco Guterres Lu Olo assumed that the definition of presidential functions allowed them to perform their duties in close articulation with their parties of origin. In the

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case of Portugal, that option represented a consolidation of presidential and parliamentary majorities that did not prevent a negative political judgement materialized in the electoral defeat of the centre-right in the following legislative elections and the return of the presidency to a model in line with the established doxa of independency and accrued horizontal accountability. In the case of Timor-Leste, which is ongoing as the president’s term will last for another two years, political instability has been a consequence of the presidential option to join forces with a minority party. Having presidents involved in party politics is congruous with the letter of constitutions but arguably not with the underlying spirit of republics with moderating power. The variations that have been observed around this theme do not seem to have offered stable solutions.

References Alkatiri, M. (2014). A exclusão política cria conflitos. In R. G. Feijó (Ed.), O Semi-presidencialismo Timorense. História, politica e desenho institucional na trajectória de uma jovem democracia (pp. 89–105). Coimbra: CES/Almedina. Cabasset, C. (2019). Timor-Leste: une democratie qui s’affirme, un impasse qui se prolonge. Asie Du Sudest, 2019, 381–405. Cavaco Silva, A. (2004). Autobiografia Política II . Lisboa: Temas e Debates. Cavaco Silva, A. (2017). Quinta-feira e outros dias I . Porto: Porto Editora. Cavaco Silva, A. (2018). Quinta-feira e outrso dias II . Porto Editora: Porto. Duverger, M. (1996). Le Système Politique Français. Droit Constitutionnel et Science Politique. Paris: PUF. Feijó, R. G. (2013, July 24). O sonho de Sá Carneiro e o pesadelo de Cavaco Silva. In Público. Feijó, R. G. (2018). Timor-Leste in 2017: Between a Diplomatic Victory and the Return of “Belligerent Democracy”. Asian Survey, 58(1), 206–212. Feijó, R. G. (2019a). Timor-Leste in 2018. Political Instability and Economic Decline. Asian Survey, 59(1), 215–221. Feijó, R. G. (2019b). Timor-Leste 1945–1999: From an Almost Forgotten Portuguese Colony to the First Democratic Nation of the 21st Century. In Asia Maior (Vol. XXX, pp. 241–266). Feijó, R. G. (2020). Timor-Leste: Twenty Years After the Self Determination Referendum. Southeast Asian Affairs, 2020, 381–390. Franco, V. (2017). Semipresidencialismo em Portugal: Poderes Presidenciais e Interacção com o Governo (1982–2016). Ph.D. dissertation. Lisboa, Faculdade de Ciências Sociais e Humanas da Universidade Nova de Lisboa.

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Freire, A., & Santana-Pereira, J. (2017). O sistema semipresidencial português em tempos de crise, 2011–2016: um presidente entre a responsabilidade internacional e a responsividade face aos eleitores. In A. C. Pinto & P. G. C. Rapaz (Eds.), Presidentes e (Semi)Presidencialismo nas Democracias Modernas (pp. 217–252). Lisboa: Imprensa de Ciências Sociais. Jalali, C. (2011). The President Is Not a Passenger: Portuguese Evolving Semi-Presidentialism. In R. Elgie, S. Moestrup, & Y.-S. Wu (Eds.), Semi-Presidentialism and Democracy (pp. 156–173). Basingstoke: Palgrave Macmillan. Jalali, C., & Fernandes, J. (2017). A Resurgent Presidency? Portuguese SemiPresidentialism and the 2016 Elections. South European Society and Politics, 22(1), 121–138. Leach, M., & Kingsbury, D. (2012). The Politics of Timor-Leste. Ithaca, New York: Cornell Southeast Asia Program. Pereira, A. (2014, January 24). Transforming Belligerent Democracy into Consensus Democracy. Tempo Semanal. Rapaz, P. J. C. (2017). O “veto politico” do Presidente da República, 1986– 2013: uso e variáveis políticas. In A. C. Pinto & P. J. C. Rapaz (Eds.), Presidentes e (Semi)Presidencialismo nas Democracias Modernas (pp. 193–216). Lisboa: ICS. República Democrática de Timor-Leste. (2002). Constitution of the Democratic Republic of East Timor. Dili: Assembleia Constituinte. República Portuguesa. (2005). Constituição da República Portuguesa – VII Revisão Constitucional. Lisboa: Assembleia da República. Salgado, S. (2007). Parliamentary and Presidential Election in Portugal, 2005 and 2006. Electoral Studies, 26, 512–516. Siapno, J. (2006). Timor-Leste: On a Path to Authoritarianism? Southeast Asian Affairs, 1, 325–342. Simonsen, S. G. (2006). The Authoritarian Temptation in East Timor: National Building and the Need for Inclusive Governance. Asian Survey, 46(4), 575– 596. Teixeira, N. S. (2016, February 11). O Ultimo Presidente. Publico: 47. Vasconcelos, P. B. de (Ed.). (2011). Constituição Anotada da Republica Democrática de Timor-Leste. Braga: Direitos Humanos—Centro de Investigação Interdiciplinar, Universidade do Minho. Vasconcelos, P. B., & Cunha, R. S. (2009). Semi-Presidencialismo em Timor: um equilíbrio institucional dinâmico num contexto crítico. In M. C. Lobo & O. A. Neto (Eds.), O Semipresidencialismo nos Países de Língua Portuguesa. Lisboa: ICS.

CHAPTER 6

The “Moderating Power” of Presidents: Rex regnat sed non gubernat

Abstract This concluding chapter evokes an old political motto—Rex regnat sed non gubernat —to define an independent ethos for presidents vested with moderating power, insisting that the underlying assumption of power-sharing revolves around separately defined fields of competences. A discussion is proposed of Linz’s suggestion that moderating power had a positive contribution to democratization, casting it in a new context in which a duality of powers may coexist with direct electoral legitimacy for both the offices of the president and the prime minister. The way in which both countries combined the virtues of a diarchy of powers with special provisions for the emergence of “independent presidents” is discussed against the background of Sartori’s remark on the existence of “institutional witchcraft”. The chapter concludes with the argument that this specific form of semi-presidentialism responds to Lijphart call for institutional design for divided societies both by reinforcing checks and balances and widening the scope of inclusiveness of the political system. As such, it has been a positive contribution to the success of democratic transitions. Keywords Moderating power · Presidential ethos · Juan Linz · Giovanni Sartori · Arend Lijphart · Checks and balances · Political inclusiveness

© The Author(s) 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5_6

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The early modern Polish statesman Jan Zamoyski (1542–1605) is credited with the utterance Rex regnat sed non gubernat (the king rules but does not govern) which encapsulates a political philosophy that would materialize in constitutional monarchies. Almost three centuries later, the French statesman, journalist and historian Louis Adolphe Thiers (1797– 1877) popularized its translation for modern politics as Le roi regne mais ne gouverne pas, a motto for King Louis-Philippe’s “Monarchy of July” (1830–1848). Nineteenth-century constitutional monarchies mostly followed this lead after the failure of radical stances as embodied in the French Revolution of 1789. It is possible to argue that the basic distinction between “reigning” and “governing” at the heart of this political model is echoed in Benjamin Constant’s proposal to consider a quadripartite division of power functions, including “moderating power” (or “reigning”) as a separate entity from Montesquieu’s legislative (usually entrusted to parliaments), judicial (the realm of tribunals) and executive (or “governing”) branches. This book sits on the premise that under semi-presidentialism political formations may emerge that broadly adhere to this way of configuring political institutions prescribing a specific role for presidents under the aegis of “moderating power”, with an independent ethos. The independent ethos of presidents under this sort of constitutional arrangements manifests itself in a number of forms and requisites. We have seen how the constitutions of Portugal and Timor-Leste respond to this issue. These provisions configure the presidency as an autonomous state organ with its own competencies that are not, if taken as a coherent cluster, amenable to be confused with the executive branch—let alone the legislative or judicial ones—and thus require to be considered, in some ways, as “independent”. Portuguese and East Timorese constitutions attribute their presidents what Italian constitutionalists usually refer to as the power of indirizzo politico—the competence to participate in the fixation of the main goals of public policies which will be activated and transformed into actual political measures by the government and/or the parliament. In turn, from this conception arises a need for “a practical convergence between the different organs of sovereignty without which, truly speaking, no ‘direction’ or ‘political conduction’ can be established inasmuch as these depend of reciprocal acts by those actors” (Queirós 2013: 265). Institutional frameworks may provide incentives; actors interpret and translate them to produce political practices.

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Historically, there seems to be a nexus between the emergence of constitutional monarchies offering sovereigns some form of “moderating power” and the long transition to democracy. Could one conceive an argument that supersedes the contingencies of historical monarchies and retrieves a “suggestive association” between a political form that harbours a diarchy of powers and modern democratization?

“Moderating Power” and Democracy: Juan Linz’s Hypothesis Revisited Juan J. Linz is well known for his defence of the superiority of parliamentary regimes when it comes to the consolidation and/or the qualification of democracy. In a posthumous article written in collaboration with Alfred Stepan and Juli Minoves, the authors develop an historical argument with some implications for the debate on Constant’s ideas on “moderating power” (Stepan et al. 2014). The main thrust of the article is on the contribution of different forms of monarchy for the development of democracy. However, the argument goes somewhat above the monarchy/republic disjunction, as it permits to envisage the historical evolution of monarchies as reported to a general pattern of government systems applicable to both state forms. It does not posit that there is a necessary, teleological movement from one to the other, but offers a three stage model as verified in some countries as a likely evolutionary path with intrinsic virtues. Linz and his colleagues consider the existence of three different types of monarchies: “ruling monarchies” that by and large correspond to authoritarian forms of government; “constitutional monarchies”, a second model that emerged mostly in the nineteenth century; and finally, “democratic parliamentary monarchies”. The distinguishing feature of the latter, which is supposed to have taken a long time to fully materialize under strong pressures applied to previous forms of monarchical power, is that “only the freely elected parliament forms and terminates the government” (Stepan et al. 2014: 36–37). This would constitute a sort of optimum for democracy. Executive power is firmly dependent solely on the parliament whose legitimacy derives from wide electoral franchise. The crux of the argument is that, in this system, only the executive can claim electoral legitimacy The realm of the monarch is altogether distinguished from that of the parliament, and its function mostly ceremonial and symbolic. The crucial element to retain from this step in their argument is that electoral

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legitimacy must prevail over all forms of legitimacy in order for democracy to thrive. The interesting point for our debate, though, relates to the intermediate formula, “constitutional monarchy” in which, by contrast to “democratic parliamentary monarchies”, “there is a strong element of dual legitimacy in that parliament and the monarch need each other’s support in order to form or terminate a government” (Stepan et al. 2014: 36, my emphasis). Historically, this sort of duality implied that one of the participants—the monarch—did not derive his legitimacy from the same source as the parliament, that is, from the citizenry through popular elections. Even so, the fact that monarchs accepted to share with the representatives of citizenry the burden of power, and restrain their own powers in line with constitutional prescriptions (often drawn by parliaments or especially elected constituent assemblies), was a significant move away from “ruling monarchies” in which the monarch could install and terminate a government at his own discretion—or be himself the sole legal ruler. In this sense, one can follow the movement of an arrow flying from autocracy to democracy crossing the broad category of “constitutional monarchy” as one stage in the voyage. The tripartite classification of monarchies allows for this evolutionary reading of the proposal. Linz and his colleagues valued the positive contribution of “constitutional monarchies” to the success of democracy because this form installed electoral legitimacy in a relevant position. One might add: the duality of powers sustained power-sharing and limited the power of the executive, increasing horizontal accountability—all features that go well with democratic predicaments. The reasoning behind this approach—that “constitutional” regimes marked by a duality of powers which goes beyond the origin of their respective legitimacies and represents a definition of separate realms of competences and functions are a transitional form en route to full parliamentary democracy—may now be transposed, mutatis mutandis, to the realm of republics. Extrapolating from Linz and his friends’ argument, dual legitimacy might be the momentary price to pay for a transition from authoritarianism to full democracy—as a great deal of the literature on democratic transitions expects must take place over a more or less protracted period. Even though the critical fact in their analysis is that non-elected monarchs were losing previously held powers to new, elected bodies, it also contemplates the fact that in the transitional period

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a virtuous situation emerged in which young parliaments shared competences with the head of state and did not suffer the fate of the radical, Montesquieu inspired French revolutionary period whose critique was widespread and greatly encouraged the emergence of alternatives both at the theoretical level (as exemplified by Constant) or the world of real political world (like bonapartism, whose democratic credentials are not clear). “Dual legitimacy”, however, can recover different realities. The first one refers to a difference in the nature of legitimacy. It is the case Portugal experienced in 1974–1982 when electoral and “revolutionary” legitimacies coexisted, with the persistence of the Revolutionary Council exercising tutelage over elected, representative politicians. This may be compared to the monarch’s constitutional tutelage over elected parliamentarians. The other reality happens when a government system is put in place that generates a diarchy of direct electoral legitimacies , as is the case with presidential and semi-presidential regimes in republics. In these cases, there is no source of legitimacy except that deriving from electoral suffrage. The head of state ceases to be chosen by hereditary means and is himself subject to electoral legitimacy. The diarchy of powers may subsist, sustained by different legitimacies that share the fact that they are both electoral in nature. The argument that “duality” in the context of historical monarchies entails that popular suffrage is not the sole source of legitimate power— monarchs derive their legitimacy from other sources and play active roles—and thus may be challenged by democratic pressures to extend the realm of citizens’ sovereignty, is powerful. In a wide sense, it mirrors the experiences of coexistence between revolutionary and electoral legitimacies in early democratic transitions such as those of Portugal and Timor-Leste. It makes sense to push for a change of model in order to expand the realm of electoral legitimacy, and install it as “the only game in town”. Modern republics, however, have the means to generate dual legitimacy without impairing the critical factor that arguably diminished the democratic consistency of constitutional monarchies, that is, unrestricted respect for citizens’ sovereignty. Republics can grant both presidents and heads of the executive electoral legitimacy. Under semi-presidentialism, both the president and the prime minister have independent electoral legitimacy. One may have a diarchy of powers with independent, direct electoral legitimacy. Does it make full sense to throw away dual power that has proven apt to instigate democratic life even if it can be electorally

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legitimized? Is there a positive value in the fact that democracies emerged within regimes that established a diarchy of powers? Semi-presidentialism with its structural diarchy of democratic powers could be envisaged, in Linz’s terms, as a positive step in a long process of transition from authoritarianism to democracy. In a contemporary history perspective, it may not be hazardous that semi-presidentialism grew popular during the “third wave of democratization”, and has been successful in delivering on its promises. The empirical cases analysed in this volume testify to its democratic virtues. Linz would certainly argue that democratization would benefit from further changes in the government system to deliver better quality democracy and establish the dominance of parliaments in political life. Elgie, however, sustains that “semi-presidential countries should not be expected to be systematically associated with any particular outcomes, including the performance of democracy” (2011: 27). He also noted that some subtypes of semipresidentialism perform better than others and thus should not be all considered under the same heading. Thomas Sedelius and Jonas Linde (2017) using the classical distinction proposed by Shugart and Carey in 1992 concluded that “premier-presidential regimes show performance records on par with parliamentarism and on some measures even better”. In this sense, one may consider that semi-presidentialism—or to be more precise, some forms of semi-presidentialism—need not be envisaged merely as a useful transitional device to facilitate the transition to full democracy, defining the latter as a parliamentary system. They can legitimately claim the right to be considered stable solutions with full democratic credentials. Which forms of semi-presidentialism come under this umbrella? And what is it that explains their success? Could it be that a coexistence of parliamentary supported prime ministers with presidents disposing of “moderating powers” facilitate this endeavour? Does one need to revert to Giovanni Sartori’s “institutional witchcraft” suggestion, or is there a rational basis to ground such an assertion?

Institutional Witchcraft? At the heart of semi-presidential regimes there is always a duality of powers. This duality is supported in direct popular elections for both the presidency and the legislative chamber that must guarantee adequate parliamentary support to the prime minister. Popular, electoral legitimacy is thus assured for both the president and the parliament. In Portugal

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and Timor-Leste, the combined requirements of an absolute majority in presidential elections (in sharp contrast with the proportional representation adopted for legislative elections that produced a fragmented party system and plurality victories) and the individual presentation of candidatures (favoured by the requirement of individual subscription and public subventions to the electoral campaigns) offer presidents a particularly strong personal mandate. Unlike legislative elections which elect members of parliament who may change the prime minister during their term in office, presidents are elected for fixed terms.1 One might derive from these considerations that the political system is tilted towards the president. Yet, this does not seem to be the norm. In fact, scholars of the Portuguese political system have rather been inclined to discuss an alleged “presidentialism of the prime minister” (Lobo 2005), and tend to consider that the premiership emerges as the most coveted political prize, assuming a structural role in the organization of the party system (Jalali 2011).2 Presidential power and its specificities remain a much lesser focus of academic attention. However, it may just be the case that the key for understanding the “institutional witchcraft” powers that Sartori (1997) admitted might be at work under some forms of semi-presidentialism resides in a clearer perception of the intricacies of presidential powers. In a major contribution to the debate on the perils and virtues of semi-presidential regimes, Gianfranco Pasquino (2007) devised two symmetrical problems that might impinge on the relationship between this government system and the consolidation or survival of democracies. On the one hand, Pasquino considered that the convergence between a presidential and a parliamentary majority might lead to a

1 For instance: in Portugal, the I Legislature had six governments and five different prime ministers; the IX Legislature two different prime ministers from the same party; the XVIII Legislature two governments with opposing support basis and distinct prime ministers. In Timor-Leste the III Legislature had two governments with different political bases and prime ministers (see Tables 5.1 and 5.2 in Chapter 5) 2 As Passarelli has stressed, party systems differ according to their being part of a

parliamentary system or rather of a presidential or semi-presidential one: “Political parties in parliamentary regimes are different from those in presidential or semi-presidential cases, not only for institutional reasons, but also for ontological and genetic factors” (Passarelli 2020: 91). The fact that presidents have their own personal fixed-term mandate and cannot be removed by party decisions is a major factor contribution to this differentiation.

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hyper-presidentialization of the regime (Pasquino 2007: 24).3 Parliaments become the weakest link as the need to support the president and his chosen prime minister tends to impose tight controls, dominate the agenda, and stifle room for dissent. Modern parliaments, more than law-making bodies, have grown to perform another key function: “the combination of representing voters’ preferences with the possibility of monitoring, controlling and sanctioning the behaviour of governments” (Pasquino 2007: 19). When two bodies coincide in their majorities that are supposed to have individual legitimacy derived from direct elections, to entertain balanced relations and discharge horizontal accountability by means of mutual oversight, then presidents may assert a vast control over the whole system. Using Elgie’s suggestion (2005), this might be viewed as a form of “presidentialised semi-presidentialism”. The perils of presidentialism that Sartori (1997) argued could be sidestepped by semi-presidentialism are thus drastically reduced, and the system works in practice much as a presidential one. The second problem emerges when a clear presidential majority is opposed by a parliamentary majority of a different political family. It is a case in the often debated issue of divided government, which under semi-presidentialism is usually referred to as “cohabitation”. According to the late Elgie’s blog, “cohabitation is defined as the situation where the president and prime minister are from different parties and where the president’s party is not represented in the cabinet” (see www.semipresi dentialism.com.) Incidentally, he adds: “Presidents classed as non-party cannot generate any periods of cohabitation”. When presidential and parliamentary majorities are in opposition to each other the prime minister, who must enjoy the trust of parliament, is usually a political rival of the sitting president. This is not an infrequent possibility, and Elgie’s blog lists an extensive (if debatable) list of examples. The epitome of “cohabitation”, having attracted much academic debate, is offered by France, where this situation happened three times: socialist President François Mitterrand (1981–1995) shared power with right of centre prime ministers Jacques Chirac (1986–1988) and Edouard Balladur (1993–1995); conservative President Jacques Chirac (1995– 2007) shared power with the socialist leader Lionel Jospin (1997–2002). 3 The unspelt assumption made by Pasquino is that there is an operating “presidential party” in the sense given to the expression by Passarelli (2019), which may be in actual terms a coalition of several parties to which the president declares his allegiance.

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Perhaps not surprisingly, all three prime ministers ran as candidates in the presidential elections that happened at the end of their term in office—all three being defeated in that precise situation. “Cohabitation” or divided government is prone to foster competition between presidents and prime ministers. Ultimately, political competition at the top of the state may lead to serious confrontation, the paralysis of the decision-making process and maybe to a constitutional crisis (Pasquino 2007: 24). Institutional conflict is disruptive of the democratic fabric. An argument that basically retrieves this one has been offered by Elgie (2011) when discussing the relative merits of two subtypes of semipresidentialism—premier-presidentialism and president-parliamentarism. Elgie argued for a close articulation between premier-presidentialism and democratic rooting, survival and quality; and between presidentparliamentarism—with its inbuilt tendency to witness overlapping of functions between presidents and prime ministers, and thus to be prone to cohabitation episodes—and poorer democracy quality and high rates of democratic breakdown. There has been an ongoing debate on the adaptability of the concept of “cohabitation” to the cases of Portugal and Timor-Leste (see, among others, Passarelli 20084 for the case of Portugal, Beuman 2016 for Timor-Leste). For the case of the first democratically elected president, Eanes, there is no question the concept would be abusive. All subsequent presidents were formally party members at the time of their election. However, the majorities that elected them did not necessarily have political consistency in the sense of being amenable to dictate the rules of the parliamentary game. The very notion of “presidential majority” was criticized in a foundational moment of the Portuguese semi-presidential system by president Soares on the evening of his election. The underlying assumption of “cohabitation”—that presidents lead a faction of parliament or are systematically associated with it—is therefore questionable.5

4 Gianluca Passarelli, however, considers that “Portuguese cohabitation […] differs significantly from that which occurs in France” (Passarelli 2008: 417). 5 One good example is that of president Marcelo Rebelo de Sousa. He was elected as a right of centre candidate (without the enthusiasm of the leaders of two parties representing that political family in parliament). The leaders of the PSD and CDS publicly claimed for the dissolution of parliament and the staging of fresh elections as soon as that became possible as the cornerstone of their political strategy. The president decided otherwise:

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As for Timor-Leste, the first three presidents presented themselves to the electorate as “independent” and were not formally affiliated with any party or coalition. According to Elgie, this would place them outside the reach of the notion of cohabitation. They were nevertheless endorsed by political parties. However, they all behaved without a systematic relation of support or opposition to any specific party or group of parties in one side of the House. In one case, president Taur Matan Ruak changed course mid-way and moved from actively supporting the search for a “government of national inclusion” to publicly and vehemently oppose the prime minister of such a government. Only with president Lu Olo did the situation become amenable to a classic model in which presidents are party agents. The early phase of the VIII Constitutional Government of Timor-Leste is thus an example of cohabitation.6 In this light, this book has proposed to use a different concept to render the relations between presidents and parties or, better still, political families: the concept of “political congruency”, which is taken from Jalali and Fernandes (2017). In this wider sense, there is congruency when both the president and the prime minister are self-avowed members of a broad the legislature lasted for the constitutional term of four years. Another example is that of president Sampaio who, during the phase of his term in which he coincided with a majority of his socialist party, denied the prime minister the organization of a referendum which ranked high on his political agenda. On another critical occasion, when prime minister Durão Barroso resigned to move to the presidency of the European Commission (2004), president Sampaio installed a new prime minister from the same party and went against the position of his party who claimed for fresh elections. President Soares, in 1987, had acted with the same independence, when the minority government of Cavaco Silva fell in parliament and the socialist leader proposed to lead a government supported by those who had brought down the prime minister. The president opted to dissolve the parliament and call fresh elections in which PSD obtained the first absolute majority. It is hard to understand those decisions if we attach undue value to the expression “presidential majority”—a condition for the usefulness of the concept of “cohabitation”. The current Speaker of the House, the socialist Eduardo Ferro Rodrigues, used a curious expression to refer to the practice of president Marcelo Rebelo de Sousa—he considered him “independent of himself”. This locution expresses the view that the president rather than deciding as a function of his personal opinions (for instance, as a devout Roman Catholic) performs his duties in light of the soundness of the democratic process leading to the proposal he has to judge. This locution might be applied to previous presidents who did not follow party lines or the wishes of their alleged “presidential majority”. 6 The COVID-19 pandemic brought a sudden change in the politics of Timor-Leste. The coalition supporting the prime minister broke down, and the leader of the cabinet was able to recompose a parliamentary basis which included Fretilin, the party of president Lu Olo.

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political family (in brief: left or right). This concept avoids reifying the “presidential majority” as something that can survive the very election and be amenable to a working majority/converging minority in parliament. Gianfranco Pasquino offers a note of solace: by and large, the twin problems of semi-presidentialism he so cleverly identified are more of a theoretical nature than the fruit of actual experiences (2007: 25). As the poet T. S. Eliot would put it in his famous “Burnt Norton” (in Four Quartets ) What might have been is an abstraction Remaining a perpetual possibility Only in a world of speculation.

Academic endeavour is, to a large extent, a matter of speculation. So, we are entitled to fuel some controlled speculation based on the experiences of Portugal and Timor-Leste. Have they avoided these pitfalls? Why? The very first thing to notice is that both countries adopted a specific— and rather similar—form of semi-presidentialism at the onset of their democratic transitions. Even though Portugal has introduced some significant alterations at the end of the period marked by military—or “revolutionary”—tutelage (in 1982), the bulk of the constitutional prescriptions regarding presidential powers have been kept stable, and the grand historical narrative that sustains the model survived unscathed. In spite of those early changes, identity traits of the system have remained unchanged. More than this, they have coexisted with successful processes of democratic development. Today, both Portugal and Timor-Leste are generally ranked among the countries that persist in showing liberal democratic virtues. The major democracy indices—Freedom House, Polity IV and the Economist’s Intelligence Unit—all rank these countries in the list of democratic polities. Using the set of criteria proposed by Alvarez, Cheibub, Alvarez and Przeworski (1996) as well as Dahl’s polyarchy proposal revisited by Schmitter and Karl (1991), I have concluded that the ground to classify Portugal and Timor-Leste as democracies is firm (Feijó 2017). In this light, one may speculate that there is a link between the adoption of a given government system and the success in the process of rooting democracy (see Feijó 2018). Two elements are present in the composition of this positive relation.

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First, both countries followed a path that Arend Lijphart (2004) considers to be conducive to democratic success: the adoption of powersharing mechanisms. Among mechanisms that offer incentives for inclusive politics one finds proportional representation in legislative elections (and in the case of Portugal, in subnational governance), and a duality of power embodied by semi-presidentialism. These two options gain their full meaning in being regarded together. In fact, proportional representation has the advantage of bringing wider sectors of the political spectrum into the arena of institutionalized competition. Minorities who might be left out of the system by a first past the post system are included in the composition of the legislative chamber, permitting that very large numbers of electors be actually represented. In the last legislative elections, in Timor-Leste (2018), less than 2% of the votes failed to translate into parliamentary seats. In Portugal (2019), the figure was higher, but still below 4%. Proportional representation yields inclusive parliaments where virtually all strands of opinion find a place. The danger of proportional representation is party fragmentation (in Timor-Leste there are 8 parties in parliament, in Portugal 10—data for 2020) and the prospects of difficulties in the formation of executives. Single-party majority governments were only possible 3 times in Portugal (out of 22 constitutional governments) and in Timor-Leste at the time of the first legislature (out of five). Minority or coalition governments have dominated in both countries.7 Expecting this to be the case, and fearful of the political instability of the Portuguese First Republic, a purely parliamentarian regime, the constituent assembly devised a government system in which parliament would be assisted by an external power—the President of the Republic. One of the most energetic constituent parliamentarians and constitutional law expert—Vital Moreira—claims that the true nature of the regime is “rationalised parliamentarism” (Canotilho and Moreira 1991). Hence the dual responsibility of governments before parliaments and presidents that the constitutions of both countries enshrine. Presidents have a duty to

7 In Portugal, PSD has once formed a minority government (1985); the socialist party

only once had a majority government (2005). Except for the last two socialist minority governments (2015, 2019) which were supported by confidence and supply agreements (albeit not necessarily formalised) with the left, all other minority experiences depended on the abstention of PSD. The alleged “presidential majority” was never a factor determining the formation of governments.

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facilitate the emergence of stable political solutions that parliaments per se might be unable to provide given the level of party fragmentation.8 In the design of presidential prerogatives and functions, constituent assemblies were attentive to the fact that political parties—most of them in their infancy after long years of repressive regimes—could not cover all strands of public opinion. More than that: the transition to democracy that they wanted to help was significantly marked by political actors that placed themselves outside the realm of party politics. That was the case, in Portugal, of the military who overthrew the dictatorship on April 25, 1974, and claimed the right to be part of the process; and in TimorLeste of personalities such as José Ramos-Horta (Nobel Peace Prize laureate) and above all others, Xanana Gusmão, the charismatic leader of the Resistance to Indonesian occupation, who disposed of strong popular following and needed to be offered a place in the political system. In this light, conditions had to be created for non-partisan candidates to emerge and eventually win the presidency; and to design the presidential function as one that ought to be parallel and not competitive with that of the prime minister. The first desideratum was clearly materialized in the legislation regulating presidential elections: the need for candidates to present a significant number of subscribers of individual platforms, the provision of public campaign funds to enable them to mount serious bids, the need to obtain an absolute majority of suffrages (implying the possibility of a runoff election) and the effective side-lining of political parties in the process. No partisan symbols are allowed to appear in presidential ballots. Xanana Gusmão, when such rule was not yet enshrined in the law, threatened not to run and create a dramatic political void if he was forced to display party symbols next to his name. With their independent electoral legitimacy, presidents are in a position to accrue—if they so decide—the inclusiveness of the democratic system. Among other examples that have been discussed in Chapter 4, the power they possess to appoint individuals for public functions of significance—to a large extent, without mandatory governmental proposals—has been used to include in the landscape of institutional politics personalities outside the context of parliamentary 8 Arguably, the adoption of the d’Hondt method of apportioning members of parliament resulted from a desire to mitigate the negative consequences of pure proportional representation upon governability. Depending on constituency distribution, in Portugal an absolute majority may be attained with circa 43–45% of the vote.

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competition, enlarging the frontiers of democracy. For this reason, presidents in both countries, regardless of the political family from which they emerge, are mostly regarded as “independent” political agents. Failure to follow this doxa leads to a reduction of their room for manoeuvre, and to disturbances in the way the system operates (as suggested in Chapter 5). The second one is open to controversy given the difficulties in sustaining beyond doubt what is the essence of presidential powers. This book has maintained that, within the limits of what an analysis of incentive mechanisms may yield, the constitutions of Portugal and Timor-Leste, by and large, succeeded in defining a specific position for presidents within the government system that offers them “moderating powers” that are distinctive from the executive powers of prime ministers. At the end of the day, the critical element of systemic importance is that presidents are offered a role the performance of which significantly enlarges the scope of horizontal accountability. Constitutional competences per se are an important factor. When power is shared between different organs of sovereignty, even though within precisely defined boundaries, horizontal accountability tends to be enhanced. The combination of such competences with direct electoral legitimacy, reinforced by the need to obtain absolute majority in order to win, place presidents in an unparalleled position to oversee the political direction the country is leading. The large scope of their pouvoir d’empêcher is the critical factor that institutes power-sharing at the heart of the system. Parliamentary—and by extension, partisan—support is not necessarily sufficient to guarantee the approval of all legislative initiatives or executive decisions. A new, “moderating” power vested with procedural independence needs to be part of solutions. The differentiating factor of republican experiences with “moderating power” vis-à-vis those of traditional “constitutional monarchies” is that these may combine—as in the cases discussed in this volume—the diarchy of powers that such regimes presuppose with a dual electoral legitimacy. As such, horizontal accountability is secured and its scope enlarged. One might add a third element: flexibility. The political regimes of Portugal and Timor-Leste seem to be flexible in the ways in which they reflect the balance of power between different actors. As the current president Marcelo Rebelo de Sousa noted when he was a constitutionalist scholar,

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[t]he current government system […] may evolve either in the direction of more significant presidential intervention or in that of a more important parliamentary component. (1984: 54)

It is often assumed that the existence of a parliamentary majority curtails the presidential power.9 In limine, Carlos Blanco de Morais argued that the appointment of António Costa as prime minister of a minority socialist government supported by a confidence and supply agreement with leftwing parties, against the inclination of the president who was limited in his competences by circumstances pertaining to the privilege of recently elected parliaments combined with the approaching end of his term, revealed what he labelled “semi-presidentialism of assembly” (Morais 2016).10 In Timor-Leste, the winning coalition emerging from the 2018 early elections also imposed its right to form a government—even though the president used his powers to oppose an important number of ministers. Conversely, the absence of majority in the House enlarges the scope of presidential influence, to the point that the choice of a new prime minister or the option for early elections have been used in both countries. The fluctuation in the capacity of presidents to intervene is not due to any constitutional changes, but rather to the moving political conjunctures within a fixed system. The stability of the system can thus be encompassed with a variation in political situations.

Coda: The Virtues of “Moderating Power” What Giovanni Sartori hinted might be “institutional witchcraft” turns out to be a virtuous combination of constitutional provisions and political agency. No political regime can be solely defined by its institutions, disregarding the structural behaviour of their agents. Political analysis differs from constitutional exegesis. Where the latter is mostly concerned with defining the institutional benchmarks within which political life 9 Note, however, that in some important issues the presidential veto requires a qualified majority for it to be overcome. In Timor-Leste this is arguably the case with the state budget, which places a substantial amount of power in the hands of a president even when there is a political majority in parliament opposed to him. 10 The dissolution of parliament is not possible in Portugal in the first six months after a legislative election nor in the last six months of the president’s term in office. Also, it cannot be dissolved during a period of state of emergency of state of siege (CRP section 172). CRDTL section 100 stipulates the same.

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takes place, the former is primarily concerned with individual and collective agency and considers what the constraints are that contribute to shape empirical cases. The political landscapes of democratic Portugal and Timor-Leste have been construed under the fundamental assumption that power is to be shared among different organs of sovereignty, including presidents and prime ministers. It is not a question of sharing the same competences, but of assigning different ones to each of those actors. A combination of historical, cultural and political elements was at play when those systems were established. They generated a grand historical narrative with normative implications, and proved to be rather resilient and capable not only of surviving several decades, but also of defining political doxas , a sort of “path dependence”. As John M. Carey noted (2000), there are often critical elements that are defined in the early stages of political processes, subject to severe bargaining, which then have longlasting and pervasive implications, and tend to frame subsequent forms of behaviour. In these two cases, presidents assume some degree of political independence that distances them from partisan representation—but they may fail at times to live up to this expectation, and can be punished in their capacity to influence the development of national policies. Prime ministers derive their power from open partisan competition, which is not altogether immune from presidential interference, as the heads of state play significant roles in government formation and survival. Some presidents have stepped down from office only to seek through the formation of political parties a fight for their countries’ premiership in order to advance their vision for executive action. Presidents by and large have made it clear they are more than “notaries” who might just look at procedural matters, and have taken decisive action in the definition of who might or might not govern. The constitutional definitions of presidential and governmental powers tend not to overlap, reserving for the heads of state what has been termed throughout this book as “moderating power”, a combination of extensive pouvoir d’empêcher—legislative supervision and veto power standing high—with a modicum of pouvoir de statuer, where his power of the word is clearly a political weapon. These institutional arrangements not only enlarge the frontiers of the political landscape to include all strands of civil society, but also define in a broader sense the territory of horizontal accountability. In most cases, presidents and prime ministers have been capable of living up to the

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best expectations of the system—and, apart from the constitutional revision that took place in Portugal in 1982 and touched upon this aspect, both countries have lived and constructed sound democracies without questioning the legal framework of their political life.

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Morais, C. B. (2016, January 13). Semipresidencialismo de assembleia. In Público: 44. Pasquino, G. (2007). The Advantages and Disadvantages of SemiPresidentailism: A Western European Perspective. In R. Elgie & S. Mopestrup (Eds.), Semi-Presidentialism Outside Europe (pp. 14–29). A Comparative Study. London: Routledge. Passarelli, G. (2008). Monarchi elettivi? Dinamiche presidenziali in Francia e Portogallo. Bologna: Bononia University Press. Passarelli, G. (2020). The Presidential Party: A Theoretical Framework for Comparative Analysis. Political Studies Review, 18(1), 87–107. Queirós, C. (2013). Os Poderes do Presidente da República. Coimbra Editora: Coimbra. República Democrática de Timor-Leste. (2002). Constitution of the Democratic Republic of East Timor. Dili: Assembleia Constituinte. República Portuguesa. (1976). Constituição da República Portuguesa. Lisboa: Assembleia Constituinte. República Portuguesa. (2005). Constituição da República Portuguesa – VII Revisão Constitucional. Lisboa: Assembleia da República. Sartori, G. (1997). Comparative Constitutional Engineering. New York: New York University Press. Sedelius, T., & Linde, J. (2017). Unravelling Semi-Presidentialism: Democracy and Government Performance in Four Distinct Regime Types. In Democratization. Accessed at https://doi.org/10.1080/13510347.2017.133 4643. Shugart, M. S., & Carey, J. M. (1992). Presidents and Assemblies: Constitutional Design and Electoral Dynamics. Cambridge: Cambridge University Press. Schmitter, P., & Karl, T. L. (1991). What Democracy Is…and Is Not. Journal of Democracy, 13(2), 36–50. Sousa, M. R. (1984). O sistema de governo português, antes e depois da revisão constitucional (3rd ed., revised and expanded). Lisboa: Cognitio. Stepan, A., Linz, J. J., & Minoves, J. F. (2014). Democratic Parliamentary Democracies. Journal of Democracy, 25(2), 35–51.

Index

A absolute majority, 52, 82, 101, 157, 163, 164 abstention, 56 Achilles heel, 99 Afonso, Luís, 140 African colonies, 10 Alegre, Manuel, 72 Alkatiri, Mari, 45, 99, 141 Alvarez, M.E., 10, 161 Amorim Neto, Octávio, 17, 34, 76 Ancien Régime, 5 appoint ambassadors, 117 appointment and dismissal, 96 appointment and dismissal of cabinets, 111 April 25, 1974, 28, 163 arch of governability, 146 arch of government, 64 Armed Forces Movement (MFA), 28 Aron, Raymond, 15 Asia, 10

Assembly of the Republic, 96, 120, 139 Attorney General, 117 attribution of decorations, 118 Australia, 120 Austria, 34, 80, 117 authoritarian/authoritarianism, 28, 32 authoritarian regime, 26, 80 authoritarian temptation, 142 autocracy, 154 Autonomous Regions of Madeira and Azores, 92, 113 Azores Summit, 98 B Bachelot, C., 60 Bagehot, 62 Balladur, Edouard, 158 Balsemão, Francisco Pinto, 105 Bancati, Dawn, 78 Barroso, Alfredo, 77 Barroso, José Manuel Durão, 98, 110, 115, 160

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 R. Graça Feijó, Presidents in Semi-Presidential Regimes, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-030-53180-5

169

170

INDEX

BE (Bloco de Esquerda/Left Bloc), 73 belligerent democracy, 74, 140, 144 Berlin Wall, 9 Beuman, L., 75, 76, 159 Big Men, 44 blockage forces, 136 Blondel, Jean, 2, 31 bonapartism, 30, 155 Bourdieu, Pierre, 61 Bovensiepen, Judith, 43 Brancati, D., 76 Brazil, 7 Brinks, D., 10 Bulgaria, 117

C cabinet, 62 Caetano, Marcello, 28 candidate centred, 71 Canotilho, J.J. Gomes, 34, 35 caretaker, 147 caretaker government, 143 Carey, J.M., 4, 13, 31, 79, 122, 156, 166 Carmona, Óscar, 27 Carnation Revolution, 8, 28, 40, 65, 79 Catholic Church, 130 Cavaco Silva, Aníbal, 72 CDS, 63, 71, 116, 146, 159 ceremonial powers, 26 Chancellor Wolfgang Schussel, 34 charisma, 80 charismatic forms of leadership, 45 charismatic leader, 12, 121 Charlesworth, Hillary, 113 checks and balances, 82, 122 Cheibub, J.A., 161 Chief of General Staff of the Armed Forces, 113 Chief of staff of the armed forces, 146

Chirac, Jacques, 158 Christos Sartzetakis, 80 citizens’ sovereignty, 155 civil societies, 80 civil war, 79 1975 civil war, 67 clemency, 118 CNRT (Congresso Nacional para a Reconstrução de TimorLeste/National Congress for the Reconstruction of Timor-Leste), 44, 59, 141 coalition governments, 53, 162 coattails effect, 53, 135 Coelho, Pedro Passos, 132, 136 cohabitation, 4, 75, 125, 133, 158–160 cohabitation episodes, 159 communist party, 63, 79, 130 communists, 115 competences in protocol, 118 competence to dissolve parliament, 138 competitive elections, 63, 66 confidence, 105 confidence and supply, 146 confidence and supply agreement, 64, 73, 165 congruent, 103, 130, 133–135 Conselho Nacional da Resistência Timorense (National Council of the Timorese Resistance, 41, 59 consensual democracy, 141 consensus democracy, 74 consolidation, 10 consolidation of democracy, 80 Constâncio, Vítor, 33 Constant, Benjamin, 5, 88, 152, 153, 155 Constituent Assembly, 9, 28, 59, 162 Constituent Assembly of Timor-Leste, 42

INDEX

Constituição da República Portuguesa (CRP), 30 Constitution, 30, 107, 109, 113 Constitutional Charter, 7, 32 Constitutional Court, 12, 33, 101, 139 constitutional monarchy, 3, 5, 7, 26, 153, 154, 164 constitutional referral, 101 constitutional review, 101 constitutional revision, 32, 33, 36 1982 constitutional revision, 36, 72, 73, 106 Constitution of 1911, 26 Constitution of 1933, 27 The Constitution of 1975, 41 The Constitution of 2002, 42 Constitution of the Democratic Republic of Timor-Leste (CRDTL), 11, 52, 88 Constitution of the Portuguese Republic (CRP), 11, 32, 34, 35, 52, 88 Contagion, 9 convention, 104 Coppedge, M., 10 Council of Ministers, 62 Council of State, 29, 33, 107, 111, 113–116, 118, 120, 121, 137 Council of the Revolution, 29, 30, 33, 34, 38, 96 coup of 11 March 1975, 29 Crespo, Vítor, 33 crisis of representation, 80, 81 Croatia, 117 Czechoslovakia, 80 Czech Republic, 117

D da Cruz, Manuel Braga, 30 da Cunha, Ricardo Sousa, 45

171

Dahl, R.A., 161 da Palma Carlos, Adelino, 28 Day of Portugal, Camões and the Portuguese communities, 92 Dead Poets Society, 14 de Almeida, Ferreira, 36 de Araújo, António, 37, 91, 109 de Azevedo, Pinheiro, 64 de Bragança, José Vicente, 77 de Carvalho, Otelo Saraiva, 64 Declaration 12/2006, 120 declaration of war and making peace, 117 Delgado, Humberto, 27, 32 de Lucena, Manuel, 38 de Lurdes Pintasilgo, Maria, 71 de Matos, Luis Salgado, 36 de Matos, Norton, 31 democracy, 154 democratic authority, 96 democratic breakdown, 159 democratic legitimacy, 30 democratic parliamentary monarchies, 153, 154 Democratic Party, 82, 141 democratic transition, 82, 97 democratization, 156 democratization process, 54 de Morais, Blanco, 37, 165 de Morais, Isaltino, 36 de Oliveira Salazar, António, 27, 32 de Sousa, Marcelo Rebelo, 36, 93, 102, 114, 121, 134, 159, 160, 164 de Spínola, António, 28 detachment, 15 de Vasconcelos, Pedro Bacelar, 45, 101, 104, 108, 113 d’Hondt, 52, 67, 163 diarchy, 88 diarchy of powers, 43, 87, 156, 164 diffusion, 9

172

INDEX

direct and competitive presidential elections, 26 direct but non-competitive, 26 direct democracy, 31 direct election, 30, 32 discretionary power, 109 dismiss a government, 109 dismissal of the prime minister, 105, 108 dismiss the government, 106, 107, 114 dismiss the prime minister, 33 dissolution, 108 dissolution of parliament, 105, 107, 110, 111, 115 dissolution of the assembly, 105 dissolve parliament, 104, 105, 110, 114, 115, 143, 145 Ditadura Militar, 27 Ditadura Nacional , 27 divided government, 61, 75, 158, 159 do Amaral, Diogo Freitas, 55, 71 do Amaral, Francisco Xavier, 74 dominant party, 142 Douglass North, 13 doxa, 34, 146, 148, 164, 166 Doyle, D., 122 dual dependence, 112, 132 duality of powers, 156, 162 dual legitimacy, 154, 155 dual nature of the government system, 30 dual responsibility, 40 dual responsibility of governments before parliaments and presidents, 162 Duverger, Maurice, 3, 4, 36, 60, 125, 130 E Eanes, Ramalho (president), 33, 64, 65, 68, 79, 96, 105, 115, 110

early elections, 165 Eça de Queirós, 9 Economist’s Intelligence Unit, 10, 161 Ehin, Piret, 77 electoral legitimacy, 153, 155, 164 electoral participation, 55 Elgie, R., 3, 14, 36, 56, 122, 156, 158–160 Elias, Norbert, 15 Eliot, T.S., 161 engage in war/declare peace, 114 English monarchy, 6 En Marche, 81 Estado Novo, 26, 27, 32 ethos, 46, 89, 118, 122 ethos of the presidency, 40 EU, 76, 137 Eurocrisis, 136 Europe, 26, 61, 76, 81 European Central Bank, 114 European Commission, 110, 115, 160 European Parliament, 110 European Union Council, 117 European Union, European Central Bank and International Monetary Fund, 137 executive, 89 executive and legislative powers, 3 executive power, 65, 76, 88, 129, 164 extra-constitutional power, 91 extraordinary convening of parliament, 91

F Faculty of Law of the University of Lisboa, 42 Farinho, Domingos, 38 fatigue, 82 Fernandes, J., 4, 133, 160 Ferreira, J., 8

INDEX

Fifth Constitutional, 112 Fifth Republic, 9 Finland, 3, 117 first ballot, 53 First Constitutional Government, 75, 142 first order, 56 first past the post electoral systems, 43, 52, 162 First Republic, 26, 32, 63, 79 forces of blockage, 139 foreign relations, 88, 90, 117 formation, control and termination of the government, 122 Fortes, Braulio Gomez, 58 Foucault, Michel, 17 fourth power, 93 fragmentation of the party system, 64 fragmented party systems, 52, 81, 82, 157 fragmented political systems, 82 France, 4, 26, 60, 117 France Insoumise, 81 France, Lithuania and Romania, 117 Franco, Vasco, 138 Freedom House, 10, 161 Freedom of the Press Bill, 94 Freire, André, 58 French Revolution, 6, 152 French Third Republic, 3 fresh elections, 143 Fretilin, 40, 42, 44, 99, 116, 140 Frye, T., 90

G Gaspar, Carlos, 38 Geertz, Clifford, 16 genetic code, 13, 109 Gerasaun Foun, 141 German Federal Republic, 3 Germany’s Weimar Republic, 3

173

Gianluca Passarelli, 68 Gomes Canotilho, J.J., 108 government, 61, 62, 112 government alternance, 130 government of national inclusion, 74, 140, 160 governments of presidential initiative, 65 grand historical narrative, 13, 46, 161, 166 Greece, 9, 80 Green party, 81 Gusmão, Xanana, 14, 44, 92, 97, 99, 104, 106, 116, 120, 121, 140, 141, 163 Guterres, António, 116, 134 Guterres, Francisco (aka Lu Olo), 74, 105, 140, 160 H Haegel, R., 60 hegemonised, 82 hegemony, 76, 81 historical legacy, 9 historical legitimacy, 142 Hofer, Norbert, 81 honeymoon elections, 135 horizontal accountability, 7, 19, 82, 136, 139, 146, 148, 158, 164, 166 human agency, 13, 17 hyper-presidentialization, 158 I II Constitutional Government, 120 impeachment, 99, 112, 145 implicit, 91 implicit clause, 79 implicit powers, 91 incentive, 67, 152 incentive mechanism, 17, 164

174

INDEX

incentives for inclusive politics, 162 inclusiveness of the democratic system, 163 incumbent, 58, 81 independence, 54 independent, 31, 66, 160, 164 independent candidate, 71, 75 independent ethos, 152 independent presidents, 4, 12, 77, 78, 125 indirizzo politico, 152 individual and collective agency, 166 individual candidatures, 70 Indonesia, 40 Indonesian invasion, 79 Indonesian occupation, 66, 74, 99, 141, 163 initiation and termination of the governments’ term in office, 103 initiative, 113 instability, 28 institutional and political responsibilities, 38 institutional choice, 31 institutionalized competition, 162 institutional versus political confidence, 39 institutional witchcraft, 19, 156, 157, 165 international community, 66 International Monetary Fund, 114 International Stabilization Force, 99 investiture, 65, 142 involvement, 15 Iraq war, 98, 118 Ireland, 80, 117 Italy, 3, 81 IV and V Constitutional Governments, 68

J Jalali, C., 4, 58, 61, 91, 133, 138, 160 Jospin, Lionel, 158 judicial authority, 88 judicial power, 63, 143 Junta de Salvação Nacional , 28 K Karl, T.L., 10, 161 KHUNTO (Kmanek Haburas Unidade Nacional Timor Oan/Enrich the National Unity of the Sons of Timor), 69, 141 King Louis-Philippe, 152 Kirchschlager, Rudolf, 80 Klestil, Thomas, 34 L Latin America, 3 Law 3/2010, 96 Law of National Defence, 96 Left Bloc, 64, 130 legal-rational forms, 45 legislative, 88, 89 legislative and executive power, 63 legislative elections, 157 legislative supervision, 90, 100, 166 legitimacy, 87, 158 Leite, Manuela Ferreira, 136 lia nai’n, 44 liberal democracy, 66 Lijphart, Arend, 10, 19, 37, 43, 162 Linde, Jonas, 31, 156 Linz, J.J., 10, 153, 154, 156 liurai, 44 Lobato, Nicolau, 59 Lobo, Marina Costa, 17, 32, 37, 103, 110, 122 Lopes, Pedro Santana, 37, 108, 110, 115

INDEX

Louis Napoléon, 26 Lusophone, 42 Lusophone brand of semi-presidentialism, 46 Lusophone world, 10

M Macao, 89, 118 MacArthur, General, 98 Macron, Emmanuel, 81 Magalhães, Pedro, 58 majority executives, 132 majority governments, 130 Malinowski, Bronislaw, 15 Martins, Luís Paixão, 66 Matos, Luís Salgado de, 8 Mattarella, Sergio, 82 mature democracies, 80 May 28, 1926, 27 Mélenchon, Jean Luc, 81 Metcalff, L.K., 122 method, 67 MFA Assembly, 29 military, 161 military command, 90 military invasion, 40 minority, 130, 162 minority cabinets, 130 minority executive, 53, 142 minority government, 65, 68, 73, 132 minority party, 148 Minoves, Juli, 153 Miranda, Jorge, 32 Mitterrand, François, 158 modalities of semi-presidentialism, 60 moderating functions, 31, 65 moderating power, 5, 7, 32, 40, 56, 61, 67, 70, 77, 82, 88–90, 125, 152, 153, 156, 164, 166 Montesquieu, 5, 88, 152, 155 Moreira, Adriano, 27

175

Moreira, Vital, 34–36, 108, 162 Mozambique, 42, 142 multi-party, constitutional democracy, 43

N Napolitano, Giorgio, 81 National Parliament, 94, 99, 120 national salvation compromise, 137 negative power, 89, 100, 138 neighbouring Melanesian peoples, 44 Neto, Octávio Amorim, 103, 111, 122 neutral power, 7 Nobel Peace Prize, 44, 163 Nobel Prize, 13 Nobre, Fernando, 73 Nogueira, Fernando, 112 non-autonomous territory, 40 non-competitive, indirect, 26 non-partisan candidates, 54, 67 non-partisan personalities, 115 non-partisan presidents, 67, 80 Novais, J.R., 35, 39, 95, 108 November 28, 40

O October 5, 1910, 26 one government, one majority, one president, 35 open presidencies, 93 Organic Law 5/2014, 96 organs of sovereignty, 33, 62, 96, 88, 89, 113, 164, 166

P 1976 Pact, 65 Pact for Financial Assistance, 138 Pact MFA-Parties, 29 parliamentarian regime, 162

176

INDEX

parliamentarian republics, 3 parliamentarism, 2, 26, 30, 32, 156 parliamentarist, 37 parliamentary competition, 164 parliamentary investiture, 132 parliamentary majority, 130, 144, 147, 158 parliamentary ones, 70 parliamentary regimes, 28, 89, 153 parliamentary republic, 26 parliamentary support, 104 parliamentary system, 156 parliaments, 91, 158 participant observation, 15 participation, 31, 55 partisan competition, 166 partisan representation, 166 party affiliation, 79 party agency, 79 party agents, 75, 82, 130, 133 party fatigue, 80 party fragmentation, 31, 162 party fray, 45, 65, 82 party systems, 65, 129 Pasquino, G., 157, 158, 161 Passarelli, G., 8, 52, 56, 60, 62, 158, 159 path dependence, 13, 166 PCP, 63 Pedro IV, 7 People’s Republic of China, 118 Pereira, André Gonçalves, 35 personalization, 56 personalization of authority, 32 personal legitimacy, 67 personal prestige, 80 Pessoa, Fernando, 26 Petroleum Fund, 145 Pinto, António Costa, 59, 76, 165 Pinto, Ricardo Leite, 36 Pires, Francisco Lucas, 39 Piret Ehin, 76

Platform of Constitutional Agreement, 29 PLP (Partido da Libertação do Povo/People’s Liberation Party), 69 Poland, 117 Polanyi, Karl, 6 political agency, 165 political agenda, 122 political appointments, 90 political confidence, 110 political confrontation, 143 political congruency, 4, 160 political culture, 32 political doxa, 12 political independence, 166 political instability, 26, 148 political veto(es), 101, 103 Polity IV, 10, 161 polyarchy, 161 Popper, Karl, 17 popular legitimacy, 88 populism, 81 Portas, Paulo, 132, 137 Portugal, 144 Portuguese colonial domination, 43 Portuguese constitution, 95, 109 Portuguese Empire in Asia, 9 Portuguese First Republic, 3, 162 positive powers, 89 positive powers of initiative, 113 pouvoir d’empêcher, 89, 147, 164, 166 pouvoir de statuer, 89, 147, 166 power of appointment, 112, 113 power of appointment and dismissal, 103 power of appointment and nomination, 114 power of public word, 90 power of reaction, 89 power of the sword, 95 power of the word, 100

INDEX

power-sharing, 88, 89, 140, 154, 162, 164 power-sharing system, 43 powers in regard to the states of exception place, 119 powers of action, 89 powers of persuasion, 102 powers of reaction, 113 the power to declare the state of emergency or the state of siege, 119 powers to declare war and make, 118 the power to determine the realization of referendums, 119 power to dismiss governments, 107 power to nominate the prime minister, 104 power to refuse appointments, 144 PPD/PSD, 35, 63 PRD (Partido Renovador Democrático/Party for Democratic Renewal), 71 preferential systems, 52 premier-presidential, 89, 156 premier-presidentialism, 40, 159 president and the prime minister in open conflict, 111 president, Eanes, 159 presidential activism, 94 presidential and parliamentary majorities, 132, 158 presidential confidence, 105 presidential discretion, 105, 106, 113 presidential elections, 30, 56, 67, 70, 157, 163 presidentialised semi-presidentialism, 158 presidentialism, 2, 3, 26, 28, 32 presidentialism of the prime minister, 27, 157 presidentialist, 30, 35 presidentialization, 68

177

presidentialization of politics, 56 presidential majority, 71, 132, 134, 158–162 presidential party(ies), 68, 69, 75 presidential power to dismiss the prime minister, 110 presidential power to dissolve the legislature, 34 presidential prerogative, 120 presidential republics, 2 presidential, semi-presidential or parliamentary, 60 presidential system, 26–28 President of the Court of Audits, 113 president-parliamentarism, 159 president-parliamentary, 30, 40 president-seeking organizations, 60 President Soares, 33, 35, 46, 159, 160 presidents without a party, 65 presidents without majority, 65, 130 President Truman, 98 prime-minister seeking organizations, 61 Prince Pedro, 7 principal–agent theory, 13 procedural impartiality, 6, 130, 146 procedural independence, 164 Processo Revolucionário em Curso (PREC), 31 proportional representation, 31, 43, 52, 64, 82, 157, 162 Prosecutor General, 112, 113 Przeworski, A., 161 PSD (Partido Social Democrata/Social Democratic Party), 45, 53, 71, 115, 116, 130, 132, 146, 159, 160, 162 public campaign funds, 163 public finances, 82, 145 public funding, 70 Public Prosecutor, 113 public subventions, 55, 157

178

INDEX

public word, 90 Q Queirós, Cristina, 36 R Ramos-Horta, J. (President), 44, 92, 99, 104, 112, 116, 120, 163 Rapaz, Paulo Canelas, 103, 138 Rassemblement National, 81 rate of satisfaction, 139 rationalised parliamentarism, 162 rationalized parliamentary, 35 ratio of party members per electors, 64 realm of presidential prerogatives, 122 referendum, 42, 119, 160 Referendum on August 30, 1999, 41 referral for constitutional revision, 102 regular functioning of democratic institutions, 143 regular functioning of institutions, 108, 109 regular functioning of of the democratic institutions, 106 regular functioning of political institutions, 106 Reif, K., 56 rejection motion, 142 República Nova, 26 Republic of Indonesia, 40, 42, 119 Resistance, 42, 44, 53, 73, 140, 163 Resistance movement, 12 Resistance to Indonesian occupation, 97 restoration of independence, 42 1982 revision, 38, 40, 68 1830 Revolution, 5 Revolutionary Council, 114, 155 revolutionary legitimacy, 79, 155 Revolution on April 25th, 91

Revolution of April 25, 1974, 97 Robinson, Mary, 80 Rodrigues, Eduardo Ferro, 160 Roman Catholic, 160 Roque, Ricardo, 43 Rousseau, 5 Ruak, Taur Matan, 67, 69, 74, 92, 94, 97, 99, 112, 141, 160 rules of engagement of the armed forces, 96 ruling monarchies, 153, 154

S Sá Carneiro, 35 Sampaio, Jorge, 36, 72, 93, 98, 110, 115, 119, 134, 160 Samuels, D., 55 Sartori, Giovanni, 19, 43, 156, 165 Schmitter, P., 10, 161 Schmitt, H., 56 second order, 56, 59 Second Republic, 26, 73 Sedelius, Thomas, 31, 156 self-determination, 40 semi-competitive direct elections, 26 semi-presidentialism, 2, 3, 26, 32, 35, 36, 37, 42, 43, 52, 87, 89, 104, 152, 156, 159, 161, 162 semi-presidentialism of assembly, 165 semi-presidential regime, 30, 56, 156 “senatorial” status, 78 Shugart, M.S., 4, 55, 122, 156 Siaroff, A., 122 Sidonio Pais’ República Nova, 26, 32 Silva, Cavaco, 33, 53, 93, 95, 102, 104, 105, 116, 132, 134, 160 single party majority, 38, 52, 64 single party majority governments, 162 single-party regimes, 42 single-party state, 41, 43

INDEX

Slovakia, 117 Slovenia, 117 Smith, Adam, 6 Soares, Mário, 7, 53, 71, 93, 105, 110, 115 socialist party, 33, 53, 63, 64, 72, 73, 79, 115, 138, 162 socialists, 115 social movements, 81 Socrates, José, 95, 119, 134 Southeast Asia, 10, 40 Spain, 9 Speaker of the House, 160 spectateur engagé, 15 State, 61 state budget, 145 state of emergency, 120, 121 state of emergency or siege, 97, 114, 145 Stepan, Alfred, 153 Strom, 76 STV (Single Transferable Vote), 52 successive appreciation of the constitutionality of laws, 139 suggestive association, 17, 153 Superior Council for Defence and Security, 107, 113, 117, 120 Superior Council of Magistrates, 113 Superior Councils of the Judiciary, 113 supply and demand agreement, 110 Supreme Commander, 98 Supreme Commander of the Armed Forces, 98, 100, 120, 122 Supreme Command of the Armed Forces, 95 Supreme Council for Defence and Security, 118 Supreme Court of Justice, 113 Switzerland, 26 symbolic and ceremonial functions, 89 symbolic and protocol, 90

179

syndrome of the wrong palace, 69

T Tavares de Almeida, 76 Tavits, Margit, 56 termination of the term in office, 33, 105 thick description, 16 Thiers, Louis Adolphe, 152 third wave of democratization, 63, 156 Thomaz, Américo, 27 transition, 10, 28, 156 transitional period, 33 transition from authoritarianism to full democracy, 154 transition to democracy, 63, 80, 153, 163 tri-partition of state branches, 88 troika, 137 tutelage, 33, 161

U UDP, 29 unified majority government, 75 United Nations (UN), 42, 116, 144 universal suffrage, 30 University of Coimbra, 35 University of Lisbon, 10, 72, 73 UN-sponsored and organized self-determination referendum, 119 UN-sponsored self-determination referendum, 118 UN transitory authority, 79 USA, 3

V Vaclav Havel, 80 Van der Bellen, Alexander, 81

180

INDEX

Vatican, 144 veto, 100 veto of legislation, 89 veto power, 101, 102, 138, 166 VI Constitutional Government, 74, 140 VII Constitutional Government, 69, 132 VIII Constitutional Government, 69, 112, 144, 160 Vitorino, António, 38 Voltaire, 6 vote of confidence, 132, 142 vote of rejection, 132 V Republic, 81

World War I, 26 World War II, 80

W Weber, 59 world of propensities, 17

Z Zamoyski, Jan, 152 Zenha, Francisco Salgado, 71

X XVI Constitutional Government, 37 XX Constitutional Government, 132, 146 XXI Constitutional Government, 147

Y York University, 136 young democracies, 80 youth parliament, 93