Brazil - Government
Brazil is a federal republic with 26 states and a federal district. The 1988 constitution grants broad powers to the federal government, made up of executive, legislative, and judicial branches. Amendments to the Constitution require an absolute three-fifths majority vote, in each of two rounds of voting, in both houses of the legislature. A matter addressed in a proposed amendment that is rejected cannot be reproposed during the same legislative session. The Constitution provided for a mandatory constitutional review that began in October 1993 and ended on May 31, 1994. The review resulted in the adoption of six amendments, which included the reduction of the presidential term of office from five to four years. The Constitution also provided for a plebiscite in April 1993 in which voters were permitted to consider alternative systems of government, including a return to the monarchy; in that plebiscite, the Brazilian electorate voted overwhelmingly to maintain the presidential system of government. A constitutional amendment adopted in June 1997 permits the re-election for a second term of the President and certain other elected officials.
The president holds office for 4 years, with the right to re-election for an additional 4-year term, and appoints his own cabinet. There are 81 senators, three for each state and the Federal District, and 513 deputies. Senate terms are 8 years, staggered so that two-thirds of the upper house is up for election at one time and one-third 4 years later. Chamber terms are 4 years, with elections based on a complex system of proportional representation by states. Each state is eligible for a minimum of eight seats; the largest state delegation (Sao Paulo's) is capped at 70 seats. This system is weighted in favor of geographically large but sparsely populated states.
A president must be a native Brazilian over age thirty-five. From 1945 to 1979, presidents had five-year terms. Following President Figueiredo's six-year term, the 1988 constitution again set the term at five years, but the 1994 constitutional revision reduced the mandate to four years. Although all of Brazil's constitutions since 1891 have prohibited immediate reelection of presidents, governors, and mayors, in June 1997 Congress approved an amendment allowing reelection. Thus, President Cardoso and the twenty-seven governors may stand for reelection in 1998, and the mayors elected in 1996 may be reelected in 2000.
The Brazilian president has the power to appoint some 48,000 confidence positions, of which only ambassadors, higher-court judges, the solicitor general, and Central Bank directors must have Senate approval. The president may also use the line-item veto, impound appropriated funds, issue decrees and provisional measures, initiate legislation, and enact laws.
Until 1964 the president and vice president were elected on separate tickets, which produced incompatible duos in 1950 and 1960. When Vargas committed suicide in 1954 and Jânio Quadros (president, January-August 1961) resigned in August 1961, the actions of their vice presidents produced severe institutional crises, leading to their respective ousters by military intervention. Since 1964 presidents and vice presidents have been elected on a single ticket, indirectly until 1989 and by direct popular vote in 1989 and 1994; a second round takes place if a majority is needed.
Executive-branch reorganizations are frequent in Brazil, as each president seeks to impose his personal style and to incorporate political bargains struck. President Sarney expanded the cabinet to a record twenty-seven ministries. His successor, President Collor, embarked on a massive reorganization, reducing the number of ministries to twelve, abolishing many agencies, and firing some 80,000 federal employees. In a reorganization of his cabinet in early 1992, Collor was forced to dismember several ministries to create new positions in an effort to enhance political support. President Franco again expanded the cabinet to twenty-seven positions in October 1992.
In January 1995, President Cardoso installed a cabinet with twenty-two ministers and the ministerial-rank chief of the Civil Household of the Presidency and implemented several important changes (see fig. 12). The Cardoso government charged the new head of the Joint Chiefs of Staff with creating a ministry of defense by the end of 1995 (a target that was not met). It also granted three ministerial positions--Planning, Civil Household, and Finance--superior status in terms of coordinating and monitoring the other nineteen. In addition, the government also created a Political Council (Conselho Político) to coordinate major political strategy and policy decisions. The council was composed of the presidents of the parties supporting the government.
Since João Baptista de Oliveira Figueiredo (president, 1979-85), most presidents have attempted to reduce and streamline the executive branch. President Sarney reorganized the Administrative Department of Public Service (Departamento Administrativo do Serviço Público--DASP), created in the 1930s, into the Federal Administration Secretariat (Secretaria de Administração Federal--SAF), which Presidents Collor and Franco revamped. By 1994 the SAF had achieved moderate success in consolidating the number of diverse public-service career structures and salary differentials. Congress passed a new executive-branch civil service law, the Single Judicial Regime (Regime Jurídico Único--RJU), in December 1990. In addition to the large number of state enterprises under government control, the executive branch also includes many autonomous agencies and financial institutions, such as the Bank of Brazil (Banco do Brasil) and the Federal Savings Bank (Caixa Econômico Federal).
Brazil's national legislature is composed of the 513-member Chamber of Deputies and the eighty-one-member Senate. Congress has a basic four-year term, but senators serve for eight years. It meets from March through June, and from August through December. The states have unicameral legislatures elected simultaneously with Congress. The municipalities have city councils with four-year terms; municipal elections take place two years after state and national elections. Since 1930 Congress has been closed five times under authoritarian intervention: November 1930 to December 1933; November 1937 to February 1946; November 1966; December 1968 to October 1969; and for fifteen days in April 1977.
The 1988 constitution restored most of the powers and prerogatives that Congress had lost during the military regime. Congress enjoys administrative and fiscal autonomy, as well as full power over the budget. Under certain circumstances, it may issue legislative decrees not subject to presidential veto. An absolute majority secret vote in Congress is required to override a presidential veto. Congress also has a very important role in setting national, especially economic, policies. For example, it must approve all international agreements, including renegotiation of the foreign debt.
Legislators enjoy almost total parliamentary immunity, even for capital crimes, such as homicide. Even if the respective chamber lifts the legislator's immunity by an absolute majority secret vote, the legislator retains the privilege of being tried by the STF. In December 1994, nearly 100 lawsuits (courts and prosecutors) sought to lift the immunity of deputies and senators. However, the legislative esprit de corps is so strong that only rarely does a case come to the floor for a vote.
Since 1950 federal and state legislators have been elected at regular four-year intervals. Senators must be at least thirty-five years old. Each state has three seats, and one or two seats are elected alternately every four years to eight-year terms. Election is by simple majority. Since 1946 deputies have had four-year terms and must be at least twenty-one years old. The 1946 constitution granted states with small populations a minimum delegation of seven deputies; larger states counted one additional deputy for every 150,000 inhabitants up to 3 million, and after that one for every 250,000. The small states imposed this system to reverse the dominance of the two largest states (São Paulo and Minas Gerais) in the Chamber of Deputies during the Old Republic (1889-1930).
Election of federal and state deputies and city council members is by proportional representation. Brazil uses one of the least-used variants of proportional representation, the open-list system (the d'Hondt method). Thus, there is virtually no conflict or competition among parties in the elections. The conflict is concentrated within each party or coalition list, and most deputies use their own resources (which may be considerable, up to US$5 million for a federal deputy) for campaigning. Therefore, they owe no loyalty to their party, and change labels frequently after their election. This produces very weak parties and low cohesion in Congress. The Workers' Party is an exception to this rule.
The apex of the judicial system is the Supreme Federal Tribunal. Its 11 Justices, including the Chief Justice, are appointed by the president to serve until age 70. During the second year of his first term, Mr. da Silva was able to enact certain judicial reforms. In November 2004, Congress approved Constitutional Amendment No. 45 dated December 8, 2004, a set of reforms intended to improve the efficiency of the judicial system. Constitutional Amendment No. 45, among other things, amends Articles 102 and 105 of Brazil’s Constitution to provide that the Superior Court of Justice (Superior Tribunal de Justiça), and not the Federal Supreme Court (Supremo Tribunal Federal), is to determine whether foreign judgments and foreign arbitral awards are enforceable in Brazil. The enforcement by a Brazilian court of a foreign arbitral award is subject to the recognition of such award by the Superior Court of Justice. The Superior Court of Justice will recognize such an award if all of the required formalities are observed and the award does not contravene Brazilian national sovereignty, public policy and “good morals”.
Other reforms introduced by Constitutional Amendment No. 45 include: (i) the right of all parties to a judicial process of reasonable duration and to the means necessary to attain it; (ii) the submission by Brazil to the jurisdiction of the International Criminal Court, the governing statute of which was ratified by Brazil in June 2002; (iii) a provision barring a retired or removed judge from practicing, for a period of three years, before the court in which he or she sat; (iv) a rule providing that decisions of the Federal Supreme Court on the merits of lawsuits challenging the constitutionality of certain acts (ações diretas de inconstitucionalidade and ações declaratórias de constitucionalidade) constitute binding precedents for the lower courts, government bodies directly linked to federal, State or municipal powers and entities created to perform government activities in a decentralized manner; (v) a rule providing that the Federal Supreme Court may issue summary legal principles (súmulas) that are binding on the lower courts and the direct and indirect administration; (vi) the establishment of a fifteen-member National Council of Justice (Conselho Nacional de Justiça) to oversee the administrative and fiscal management of the judiciary; and (vii) the establishment of a fourteen-member National Council of the Public Ministry (Conselho Nacional do Ministério Público) to oversee the administrative and fiscal management of the public prosecution service.
The expansion on the list of actors with direct standing before the Court has profoundly impacted its role as a political institution. It rapidly became a space where those defeated in the representative sphere search for protection. It is interesting to note that the political party that most petitioned the Court for judicial review during the administration of President Fernando Henrique Cardoso was the Workers’ Party (the main opposition party) while, during the administration of President Lula, the main opposition parties (the Democratic Party and Brazilian Social Democratic Party), behaved in the same way. Moreover, state governors have actively used the Court as a second political arena, seeking to block provisions adopted by their predecessors, as well as their state legislatures.
Two other relevant novelties adopted in the last few years are also contributing to increase the importance of the Court as a forum of political action. Besides the fact that the Court deliberates in public, TV Justiça, a public open channel, televises its plenary sessions. A second aperture to the public is the ability of civil society organisations and other interest groups to submit amici curiae briefs in cases where the Court’s decisions have a significant impact.
Brazil is divided administratively into 26 states and a federal district, Brasilia. The framework of state and local governments closely parallels that of the federal government. Governors, elected for 4-year terms, have more limited powers than do their counterparts in the United States. This is due to the highly centralized nature of the Brazilian system. The limited taxing authority granted to states and municipalities -- the only territorial subdivisions of the states -- further weakens their power.
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