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The Opening Ceremony of the Judicial Year is a privileged moment for a joint reflexion over the challenges that the Law and the judicial system face in our times. But it is also a unique opportunity to pay a tribute to Portuguese magistrates and to all those who daily exercise their work in our courts of law. To the court professionals, to the judicial staff and, above all to the judicial and Public Prosecution magistrates, a word of recognition is due for the role performed in the assertion of Portugal as a State bound by democratic rule of Law.

Debating justice necessarily calls upon a reflexion on Law and legislation. Indeed, it is not possible to analyse the issues faced by Justice without considering the laws that rule us, since it is the primary duty of the courts to apply the options of the legislator to the causes which are submitted for trial.

Jurisprudence and its interpreters are somehow responsible for actions creating Law; the concept that placed judges as mere «mouthpieces of law», limited to the application of the will of the legislator, has long been transcended. In any case, however, it is the law that the judges must apply, and thus a reflexion over Justice will always have to begin by an analysis of the quality of the legislation in force in the Country.

Since this is the last occasion that, as President of the Republic, I have the honour to stand before the main players in our justice system, I understood it as my duty to publicly evince my experience as interpreter, applier and defender of the «law of laws», the Constitution of the Portuguese Republic.

When I was empowered, at the beginning of my two mandates, I swore to comply and demand compliance with the Fundamental Law. I now believe that it behoves me to convey to legislators and appliers of Law the result of my reflexion on the constitutional structure of the powers of the State and, particularly, the scope and the sense that the presidential function acquires in this context.

I believed this to be the right time for such an analysis to be perceived serenely and responsibly, as a record and an inventory of an experience that those responsible for a revision of the Constitution may use as they freely choose.

Since the election of members of Parliament has been concluded, and there is no alteration to the Fundamental Law currently being undergone, the circumstance of my being present before this so highly qualified audience seemed especially opportune, in order that a reflexion addressed to the «community of interpreters of the Constitution» be envisaged without any misconception.

There is no intention to condition future constitutional revisions. This is a testimony for future memory, which may contribute towards any eventual revisions of the Constitution, which will, or not, be carried out in accordance with the sovereign will of the Members of Parliament and at the time when they so consider adequate.

I believe, at any rate, that the main pillars of the distribution of competences defined by the Constitution are well adjusted to the required balance of the State’s functions and to the respect for the principle of separation and interdependence of powers amongst the several sovereign bodies.

Essentially, the Portuguese system of government has shown notable pliability and an exceptional capability of adaptation to the vicissitudes and evolution of our political life.

The set of powers attributed to the President of the Republic is adequate and commensurate to the position provided him by the Constitution, in the interaction with Parliament, the Government and the courts. With regard to the interoperable distribution of competences, the system in force demonstrated its qualities and its effectiveness. The constitutional system never represented a hindrance to the action of the President of the Republic and, generally to the normal functioning of the democratic institutions.

After ten years of experience as President of the Republic, two mandates fulfilled through the choice of the people, I believe that the 1976 Constitution, after the revisions entered therein, bestow on the Head of State the necessary competences for the full exercise of his functions and is adjusted to the model, that must be maintained, of the presidential election by direct suffrage.

I thus believe that a substantial change in the set of presidential powers is not justified, either in their reduction or, contrariwise, in their extension.

In 2016, the Constitution in force will commemorate 40 years of existence. In these four decades, the Portuguese system of government – either qualified as semi-presidential, or described as semi-parliamentary – not only showed itself adjusted to the consolidation of the democratic regime but, through its successive revisions, was able to adapt itself to the diverse political environments. Thus, and in short, rather than requiring the extension or reduction of the essential nucleus of presidential powers, what is enjoined to the President of the Republic is an adequate and balanced perusal of the Constitution, the Fundamental Law that he swore to comply and have complied with.

There are, however, several features that could evoke consideration by the holders of the powers to revise the Constitution, that is, the Members of Parliament.

The mode of appointment of the judges of the Constitutional Court has been discussed for some time. As all are aware, the debate goes back to the genesis of the Court, occurred during the 1982 constitutional revision. At that time, several voices, amongst which those of noted jurists, advocated an alternative model for the appointment of constitutional judges, in order that the makeup of the Court need not be reserved almost exclusively to a parliamentary decision, as it currently is. Attributing to the President of the Republic the possibility of appointing some of the judges of the Constitutional Court could reinforce the perception of the independence of this body as a guarantee of the Constitution.

The Constitutional Court performed – and performs – an essential function in guaranteeing the Fundamental Law and in the consolidation of the Rule of Law. By the independence of its judges and by the quality of its jurisprudence, confirmed throughout decades, the Constitutional Court has become a pillar of the Portuguese democracy. For exactly this reason, it is now possible to carry out a more mature and extraneous reflection on the mode of appointment of its judges and on the role that, within this framework, the President of the Republic could be called upon to perform.

On another stage, the experience that I have accumulated throughout my mandates, during which I had to analyse thousands of legislative bills, enables me to suggest that an increase should be contemplated over the delay allowed the President of the Republic to request, from the Constitutional Court, the preventive supervision of constitutionality. The current eight day period is, at times, totally insufficient for the President of the Republic to carry out a preliminary assessment of conformity with the Constitution of juridical rulings, especially when these are comprised in very complex bills or, in other situations, when Parliament and Government concentrate, in a short period of time, the submission of a great number of bills for enacting.

It would thus be advisable that, on behalf of the strengthening of the Constitution’s guaranteeing tools, the delays provided to the President to request the preventive supervision of constitutionality be increased to more reasonable time limits, adequate to the growing juridical and other complexities, and of the legislation produced by Parliament and by the Government.

Again in another area, the regime of parliamentary confirmation of the President of the Republic’s veto is much too complex, evoking difficulty in interpretation and application. Indeed, the issue in question is to know which is the required majority to confirm a bill that was vetoed by the President of the Republic. No. 3 of article No. 136 of the Constitution does not expressly refer the need for a 2/3 majority of Members to confirm bills where the majority required for approval is itself 2/3.

The confirmation system of vetoed bills and the required majority are not fully clear, subject to doubts in interpretation that do not contribute towards the juridical certainty and security in matters that could be the target of great political controversy. Constitutional political equilibrium would advise that a confirmation of a veto of the President of the Republic would occur, in all cases, by a majority of not less than 2/3 of Members of Parliament. I believe that, in effect, the juridical regime of confirmation of the presidential veto deserves being clarified in future constitutional revisions.

Another constitutional rule that has been questioned for long is that which requires a prior authorization from Parliament for the President of the Republic to journey abroad. As you are aware, the lack of such an authorization comprises drastically with the most serious sanction: the impeachment of the President of the Republic. The practical application of this requirement has already been the cause of grievous problems in the past and which, in our times, appears anachronistic and without parallel in comparative law. Indeed, this vestige of monarchical constitutions of the 19th century cannot be justified in a global world, in which, at times, the exercise of presidential duties, namely the external representation of the Portuguese State, requires swift and even urgent actions. The legislator, if he so perceives, should find a legal solution that, for instance, exempts such authorization for urgent or particularly demanding situations, or even, at the very limit, entirely dispenses with such a constitutional requirement.

A further issue which I believe deserves consideration is linked to the more than ever relevant role that central banks assume in the economics of several countries and, very specially, in the supervision and regulation of financial operations.

In this perspective, the appointment procedure of the Governor of the Bank of Portugal should perhaps be consecrated in the Constitution itself, similarly to that of the holders of the highest offices in the Portuguese State. The circumstance that the appointment of the Governor of the Bank of Portugal is ruled by ordinary legislation may imply a lack of stability in this office, a stability that seems essential for his independence and autonomy. It should thus be subject to reflexion, even for the purpose of reinforcing the image of independence of the Bank of Portugal, if the Governor should not be appointed by the President of the Republic, under proposal from the Government and, eventually, after a parliamentary hearing.

In another context, and considering the attribution to the President of the Republic of the functions of Supreme Commander of the Armed Forces, I believe the Constitution should include, as is the case with Parliament, that the Head of State should appoint several members of the Supreme Council for National Defence. This would contribute towards the diversification of the composition of this consulting body in issues relative to National Defence and the Armed Forces.

In a field that is not directly related with the President of the Republic, but which, due to a constitutional option, is linked to the exercise of his duties, the political experience of the last few years should equally be taken into account.

I refer, in this case, to the offices of the Representatives of the Republic for the Autonomous Regions. The institutional design of this office, together with the duties it is called upon to exercise, deem it totally inadvisable that one sole Representative of the Republic for both Regions should be appointed, as has already been suggested.

Indeed, and even for the defence of the interests of each of the insular Regions within the framework of a unitary State, the existence of two Representatives of the Republic is the solution that undeniably seems the most adequate.

On the contrary, should one only Representative of the Republic exist for both Regions, this officer would lose his relation of proximity and knowledge of the political, economic and social specifics of each of them. Nevertheless this knowledge is essential, especially for the exercise of the competence of the signing, vetoing and taking the initiative for the constitutional supervision of regional bills, a competence that must be maintained. And even, in other issues, the existence of one sole Representative of the Republic for both Regions would preclude the performance of its offices; for instance, within the scope of electoral processes or the management of emergency situations. That which wais the basis of the historical option in 1976, which led to the consecration of the Azores and Madeira autonomous Regions, is also the reason that justifies the existence of one Representative of the Republic for each Autonomous Region.

With further reference to the action of the Representatives of the Republic, I believe the model of their presence in the Council of Ministers should be subject to appreciation.

What I can conclude, from my personal experience, is that the absence of the Representatives of the Republic from the meetings of the Council of Ministers creates grievous difficulties both for the Autonomous Regions and for the Council of Ministers concerning agile and effective communications between the central powers and the regional bodies.

The Representatives of the Republic, within the scope of their own competences, could act as intermediaries between both powers, preventively avoiding the arising of potential conflicts and swiftly transmit the claims of the regional bodies to the central powers. I am certain that this would be the best way to deepen regional autonomy and to defend the interests of the insular peoples and, at the same time, guarantee the necessary respect for the constitutional principle of the State’s unity.

A significant part of the pressures and issues that have been felt in the past between the regional governing bodies and the central power, as I had the opportunity to witness, would be substantially reduced through an interaction in greater proximity, to be exercised by the Representatives of the Republic for the Azores and for Madeira.

Ladies and Gentlemen,

These are, in short, some of the reflexions surrounding constitutional practice, which result from ten years of experience as President of the Republic. I bring them forward because I am certain that none of the issues I referred to will be applied during the remainder of my mandate.

The main inference that I reach is that the Portuguese Constitution, with regard to the distribution of powers amongst the sovereign bodies, seems fully adjusted to the exercise of presidential office.

The Portuguese Constitution, as I stated, will celebrate 40 years in existence in 2016. In these four decades, the Constitution guaranteed the compliance with many of the ideals of the 25th April: greater social justice, the democratization of access to education, a National Health Service for all Portuguese.

The model of Welfare State comprised in the 1976 Fundamental Law favoured the appearance and the consolidation of a society that is better developed, fairer and has greater solidarity. The Constitution also ensured the respect for the principles that distinguish and characterize us as a European Nation, with special reference to the Rule of Law and the independence of the courts of justice.

I end this address with a word of greeting to our Fundamental Law and our courts of justice.

I congratulate the Supreme Court of Justice in the person of its President, Councillor António Henriques Gaspar. This is the formost institution of our judicial system which, every year, welcomes this so very significant ceremony.

I equally wish to congratulate the Portuguese judicial magistracy and, in the person of its Head, the Office of the Public Prosecutor.

I wish all Portuguese magistrates a Good Judicial Year.

Thank you very much.