The moment in time at which the government’s resignation should be considered to have taken effect when the date of the acceptance of the resignation submitted by the Prime Minister was the same as that of its publication in the Diário da República, but the latter was distributed on a later date
End of term of office of members of executive bodies
Legal effect of publication
Protection of third parties
“withdrawal of legitimacy” of the executive as a result of local elections
RULING Nº 36/2002
31 of January of 2002
According to legal theory, in order to have legal effects on third parties, all decisions by the President of the Republic must take the form of a "Presidential Decree" issued as a document in its own right.
According to the Constitutional Court, the decree is also the natural and constitutionally appropriate form for a measure by which the President of the Republic "officialises" the resignation of the Government as accepted by him when tendered by the Prime Minister.
The date on which the government's resignation (at least in relations between the organs of sovereignty) takes legal effect is the date when the causes occur.
In accepting the resignation tendered by the Government, the President of the Republic takes an option regarding the country's political future, thereby accepting, at least implicitly, that current political circumstances (which in the case in point arose as a result of the local elections of 16 December 2001 which principally prompted the government to tender its resignation) require a change of government and the "withdrawal of legitimacy" from the government which is no longer able fully to carry out its programme (the government then being restricted under the terms of Article 186.5 of the Constitution to a caretaker role).
Recognition of this fact occurs at the precise moment when the President of the Republic pronounces the decision to accept the resignation tendered by the Government. This same decision must be formally established by signature of the decree on the same date. The date of signature, as the date of acceptance of the resignation (which need not necessarily be the same as the date when the resignation was tendered), accordingly constitutes a choice and a sign. It is understood that the government's resignation takes effect (primarily for the Government itself) as from that date.
Reasons of legal certainty, which afford protection for third parties by requiring those who have to observe rules of conduct to enable knowledge to be had of the law, and in which the publication of measures is of very special importance, cannot be relied upon in this context. The certainty that needs to be defended here is that the organs of sovereignty exercise their powers as long as they enjoy democratic legitimacy.
Institutional solidarity and co-operation, political fair play between the organs of sovereignty (which are indispensable conditions for the proper functioning of democratic institutions) necessarily presuppose types of political relations between those organs which do not require prior knowledge of measures through circulation of the Official Gazette (Diário da República) in which they are published - at least as regards measures whose legal and political effects are constitutionally important for the exercise of their powers (the fundamental issue here being the exercise of power which is constitutionally proper only if it emanates from organs that retain their democratic legitimacy). Institutional co-operation and solidarity would be jeopardised by concealing relationships in an area which is necessarily public in a democratic state ruled by law.
Lastly, the Court held that the Government's resignation must take effect, in relation to the government or the Assembly of the Republic, as from the date when the decision accepting the resignation tendered by the Government (17 December 2001) was pronounced.
The President of the Republic requested prior appraisal of the constitutionality of the provision of a single article of Decree no. 185/VIII of the Assembly of the Republic, which changed the system of special aid for the repayment of public debt of the Autonomous Regions of the Azores and Madeira. This decree was passed to the President's office on 11 January 2002 for promulgation in the form of an organic law. This legislative modification was part of the parliamentary legislative procedure initiated by a proposal tabled by the government and adopted during the parliamentary sitting on 20 December 2001.
However, the government was no longer in office, the President of the Republic having accepted the resignation tendered by the Prime Minister. It is true that Presidential Decree no. 60-A/2001 accepting the resignation, although dated 17 December and inserted in the Official Gazette of the same day, was not circulated until 26 December 2001. However, the fact that the President had accepted the Government's resignation was public knowledge, having been publicly announced to the mass media by the President's office.
The question to be answered was: from what point in time is the government to be regarded as no longer in office?
Under Article 119.2 of the Constitution, the measures which it lists, including presidential decrees, are without legal effect unless published in the Official Gazette. This would at first sight seem to imply that the presidential decree in question could not take effect until after its publication in the Official Gazette. It is also understood that "publication" means actual publication in the form of circulation of the Official Gazette. There is, moreover, undisputed case-law according to which measures subject to publication cannot take effect until the Official Gazette, in which they are published, is actually circulated (made available to the public). However, all relevant argument has focussed mainly on the publication of legislative measures (laws and measures with generic content), the main concern being to preserve legal certainty.
Article 195.1 of the Constitution, as amended in 1982, specifies the circumstances that "entail the government's resignation". Unlike the provisions of Article 195.2 (which specifically provides that the President of the Republic may not dismiss the government unless it is absolutely necessary for the proper functioning of the democratic institutions and after consulting the State Council), in none of the situations provided for in Article 195.1 is resignation initiated by the President of the Republic. By the use of the term "entail", Article 195.1 makes it clear that the government's resignation is determined "opus legis" by one of the circumstances it enumerates.
It may accordingly be argued that the legally important date is that on which the President effects the political measure of accepting the resignation tendered by the Prime Minister, thereby, according to the terms of Article 195.1 of the Constitution, making the Government's resignation effective. In this case, the Government would have ceased to be in office on 17 December, which in this instance was also the date of signature of the decree and of the Official Gazette in which it was published. But it may also be argued that the government does not cease to be in office until circulation of the Official Gazette which publishes the presidential decree certifying the President's acceptance of the resignation tendered by the Prime Minister. In that case, the Government would not have ceased to be in office until 26 December.
These two hypotheses are crucial to the constitutionality of the measure under examination. If the legally important date is taken to be that of actual acceptance of the resignation tendered, viz 17 December, then according to Article 167.6 of the Constitution, the Bills tabled by the government in parliament lapse as from that date.
Accordingly, the question raised by the President was, firstly, at what point in time must the government be deemed no longer in office? However, this question is connected to the subject of the request for examination of constitutionality, viz a measure tabled by the government and adopted by the parliament on 20 December 2001, from which it follows that the answer required is: when does the government's resignation take effect in relation to the legislative process initiated by the proposal in question, having regard to the provisions of Article 167.6 of the Constitution (whereby bills lapse upon the government's resignation). In its judgment, the Court held that the government's resignation (at least as regards relations between organs of sovereignty) must take effect as from the date when the causes provided for in Article 195.1 of the Constitution occur.
The time of the government's resignation, and hence also that of the lapse of the bills tabled in parliament, having thus been determined, it remained to be decided whether their lapse legally and constitutionally affected the measure in question. The Constitutional Court held that when the bill was passed in the parliament sitting of 20 December 2001, it had already lapsed (on 17 December 2001) by reason of the government's resignation. In conclusion, the Court decided that parliamentary Decree no. 185/VIII is unconstitutional because it is in contradiction with Article 167.6 of the Constitution.