Marcelo Rebelo de Sousa called it a “legislative tangle”. And in the message sent this week to the Assembly of the Republic, he listed the entire legislative framework that over the years has regulated the incompatibilities of holders of political and high-ranking public office, and related matters such as the regime for exercising functions and sanction regime for the same agents. After all, there are as many as 32 diplomas listed in the presidential message that Marcelo Rebelo de Sousa addressed to parliament, to ask the deputies to proceed with… the review of the legislation. Desirable for a “single clear body”.
The possible incompatibility of several ministers in the government of António Costa came back on the agenda yesterday, when the head of Infrastructure, Pedro Nuno Santos, reacted in parliament to the doubts expressed by the fact that he had a stake of 0.5 % in the family. company, Temacal, 44% of which is owned by his father, which recently entered into a public agreement with a direct agreement, in addition to others already made in the past.
Pedro Nuno Santos reiterated that he always acted “in good faith” in this process and invoked a 2019 Advisory Council of the Public Prosecutor’s Office (PGR) opinion to confirm that, given the position expressed in the document, he was “calm ‘ and considered the case closed, so he kept his “symbolic” stake in the family business. “There were doubts, an opinion was requested from the Advisory Council, this advice has removed the doubts, the matter has been resolved”, said the head of the Ministry of Infrastructure: “After 2019 I took office twice more as a minister and no one came to say that that view did not apply to my situation”.
Assuming he will accept the decision of the Constitutional Court – which, in the event of incompatibility, could determine the loss of mandate – Pedro Nuno Santos added that, should this happen, he will be left with “a deeply sense of injustice”. “If I’m incompatible, I will abide by the sanction imposed on me. The only problem here that makes me revolt is, of course, that for three years I thought I was fine. And it’s not because I didn’t know the law, I knew the law, but I also knew the interpretation of the law.”
Speaking to the opposition, Emília Cerqueira (PSD) and Filipe Melo (Chega) argued that the advice of the PGR advisory council was no longer applicable given the 2019 law change, an argument rejected by the minister and socialist Pedro Delgado Alves. , who argued that the amendment did not apply to the articles analyzed in the opinion.
The BE, in the voice of Mariana Mortágua, defended that the law “can be improved”, but also said that the inspection of the incompatibility regime, “more than Parliament”, is the task of the Public Prosecutor and the TC. PCP faction leader Paula Santos questions whether the government has requested access to the contracts in question.
Another position had the liberal initiative. After requesting the resignation of Minister Ana Abrunhosa, also because of alleged incompatibility, Carlos Guimarães Pinto defended yesterday that Pedro Nuno Santos’ case is fundamentally different, as the minister “does not protect buyers nor has the ability to influence the decisions of those who sell”. “For this particular case, I cannot, in good conscience, judge it politically or ethically,” the IL deputy said.
Health Minister Manuel Pizarro was also in parliament yesterday and was eventually questioned about alleged situations of incompatibility. In this case, Pizarro is married to the President of the Order of Nutritionists, an entity responsible for Health. In the meantime, a second question has been added, in view of the position of managing partner of the former MEP in a consultancy firm in the field of healthcare. Manuel Pizarro assured that the situations are “completely resolved”: “As to the matter relevant to this chamber, I am not covered by any incompatibility or settlement of interests”.
An “unclear law” and in a “vicious circle”
The law on incompatibilities and impediments to holders of political and senior public offices states that companies in which a government official has an interest of more than 10% or 50,000 euros are not allowed to participate in public procurement procedures.
The impediment is valid whether the company is individually owned by the holder of political office or together with family members up to the second degree (spouse, unmarried, parents and grandparents, children and grandchildren, as well as brothers and sisters). In 2019, the government asked the PGR Advisory Council for advice, which concluded that the restriction only applies if the political office holder has custody of the area in which the government contract is signed. In the case of Minister Ana Abrunhosa, the advice underlines that the restrictions affect public procurement – in the case of the Minister, it concerns public funds.
For constitutionalist Tiago Duarte, the law governing the incompatibilities of holders of political and high public positions is “not very clear in the terms in which it is made”, further complicating an issue that is already “very complex” in itself. According to him, the path must go through a change in the law, but preceded by a “reflection on what we want to avoid”.
In this regard, the constitutionalist underlines that “there is a very important principle in the law, which is the principle of proportionality – what is reasonable?” “We want such restrictive rules that transform the decision to go to government into a decision that is no longer personal and must be made in the family council” because of the repercussions it has on family members, he asks, warning that this can alienate competent people from the exercise of political office.
On the other hand, “the fact that someone is in government opens a series of contacts that, directly or indirectly”, can benefit third parties, but in this case “more rigor in the contracts made” must be demanded. – if the public tender is permeable to influences, it is because “it was not well done”.
Another problem, Tiago Duarte emphasizes, is the direct adjustments. What is certainly not a good solution, says the lawyer, “is changing laws in the light of specific cases”.
For João Paulo Batalha, vice president of the association Frente Cívica, the problem is not so much in the law – despite the fact that it is “undefined” – but in the lack of a “truly independent body that assesses the concrete situations”. And that is not the Constitutional Court: “The TC is probably the worst body to play this role, because it is a court of political appointment”.
On this point, “The biggest problem is that it’s the [políticos] to make that decision, which creates a trust problem”, defends João Paulo Batalha, adding that the request of the President of the Republic to revise the law – and to which the PS has already made itself available – is “an admission of the failure of the institutions”, after the successive amendments that have been made law. “We are still in the same vicious circle,” he concludes.
Source: DN
