Presidential Powers over the Formation and Maintenance of the Government

BOOKS AND ACADEMIC ARTICLES 2016 Coimbra, Coimbra Editora

When the Portuguese Constituent Assembly of 1975-1976 solidified the principle of separation of powers in line with the priorities it had elected for its new national project, it also decided to adapt a controversial solution, inspired in the previous constitutional tradition: sidelining the role of the Parliament, it elevated the axis formed by the Head of State and the Head of Government to take centre stage in the government system, this because the Assembly considered it necessary that agile entities, which had a more rationalised structure would carry out a quicker reform of the social structures without having their intentions challenged by a plural Parliamentary Assembly.    

This choice, which was vehemently attacked by the minority benches during the constituent debate, was adapted by never derogated in the Constitutional Revision of 1982. In spite of recent circumstance having provoked a radicalisation of the readings of the system of government contained within the Portuguese Constitution,  the constitutional interpreter does not have the authority to cover up the meanings of the constituent options - which are, in fact, unequivocal and well documented - replacing the decision that is put forward in the Fundamental Law with a its own decision which does not meet the norms of the Constitution.

This obligation on the part of the interpreter does not in any way mean any agreement with regard to the merit of the options of the Constituent Assembly; it only implies the acknowledgement that said options were wanted by the constituent legislator, who considered them preferable, in light of the priorities in hand, to any other ones presented at the time. These constituent options will, therefore, be valid until a new majority with constituent authority does not decide to have them replaced.