$Unique_ID{COW00504} $Pretitle{220} $Title{Brazil Chapter 4A. Government and Politics} $Subtitle{} $Author{James D. Rudolf} $Affiliation{HQ, Department of the Army} $Subject{president military government federal constitution state executive congress courts political} $Date{1982} $Log{Plaza of the Three Powers*0050401.scf Figure 8.*0050403.scf } Country: Brazil Book: Brazil, A Country Study Author: James D. Rudolf Affiliation: HQ, Department of the Army Date: 1982 Chapter 4A. Government and Politics [See Plaza of the Three Powers: Buildings of Congress in the Plaza of the Three Powers (Brasilia); architect: Oscar Niemeyer] The Brazilian Political System in 1982 was in a crucial stage of a process of liberalization from military dictatorship to what promised to be, sometime within the coming decade, a return to liberal democracy directed by civilians. The political dynamics of this process, known as abertura (literally, opening), involved the interaction of popular pressure from below and, from above, the extensive powers of the executive branch of government and its coercive mechanism, both of which remained in the hands of the armed forces. Although abertura was protracted, the holding of the scheduled popular elections of November 1982 was the most important indication to date that it would proceed on course into the mid-1980s, when a successor would be chosen to President Joao Baptista de Oliveira Figueiredo, who in 1979 had been chosen as the nation's fifth military president since the coup d'etat of April 1964. Economic factors posed one of the greatest threats to abertura. After increasing to record levels between 1968 and 1974, Brazil's growth rate gradually slowed after the shock of 1973-74 oil price hikes and was negative in 1981, a year that also saw inflation reach over 100 percent and the foreign debt hit record heights. Analysts agreed that the economy had the strength to overcome these difficulties. The timing, however-when the population was being allowed, for the first time in many years, to make its own wage demands heard-was most inopportune. The specter of popular demands for redress of past losses had been raised during the late 1970s in widespread labor strikes, but in the early years of the new decade, the government had skillfully combined "carrots" and "sticks" to mute wage demands. This issue would become increasingly vital, however, as abertura proceeded. Another long-term threat to abertura (although in the short run it may have made it easier for Brazil's military leaders to initiate and proceed with the process) lies in the relatively undeveloped nature of Brazil's political institutions. As labor unions were weak, so were interest groups representing business, students, agriculturalists, and other sectors of society that one might expect to be highly organized in a nation as large as Brazil. Political parties also lacked an in-depth organizational capacity. Analysts explain this phenomenon as a product of Brazil's patrimonial heritage: deference to one's "superior" in his or her immediate environment (be it farm, factory, neighborhood, or village) runs deep in Brazilian society. In politics this is translated into political bossism, called coronelismo in traditional rural Brazilian society, which began a slow death in the 1950s but continued to play a major, if declining, role in the 1980s. This tradition was reinforced by the corporatist threads that ran through the regime of President Getulio Vargas in the 1930s and 1940s as well as the post-1964 military regime. In Brazil's entire history, liberal democratic institutions, such as interest groups and political parties, had a chance to develop only during the Second Republic (1946-64). While this inexperience in popular government may have made it easier for the nation's military leaders to loosen the reins of power, it also made the future uncertain due to a lack of strong democratic traditions. The people were nearly unanimous in their support of abertura. Its only apparent opponents were found in a segment of the armed forces known as the hard-liners, which had been quite powerful in the early 1970s, although its influence steadily declined thereafter. By the early 1980s the hard-liners, who wanted military rule to be perpetuated indefinitely, had been removed from a number of top positions of authority. There was, in other words, a growing consensus within the armed forces to return to its purely military, professional role in society. A consensus also existed among Brazilian elites that their nation, having one of the largest, richest, and most dynamic societies in the Third World, was destined in time to become a major world power. Brazil's increasingly far-reaching diplomatic and commercial ties had significantly raised its stature among the developing nations at the same time that they reduced the nation's dependence on the northern industrialized nations. The United States remained Brazil's single most important foreign relation, although by the early 1980s its significance had been declining for a full decade as Brazil diversified its foreign contacts. Two especially interesting aspects of Brazil's foreign policy were the somewhat surprisingly small military component of its growing power and the widespread public support that Brazil's new directions in foreign policy had attained. Foreign policy was virtually absent as an issue in the otherwise bitter 1982 election campaign. Structure of Government Constitutional Structure Brazilian constitutions, by and large, have served to legitimize existing political institutions rather than to provide for future continuity. The 1967 Constitution, the nation's sixth, superseded the 1946 constitution, which had guided Brazil during 18 years of democratic rule during the Second Republic. Between the 1964 coup d'etat and the promulgation of the 1967 Constitution, four so-called Institutional Acts and a large number of Complementary Acts were decreed by the military government that modified the 1946 constitution as necessary in order to legitimize the imposition of the dictatorship. The 1967 Constitution, which was promulgated on January 24 of that year by the rubber-stamp Congress, was essentially a reconfirmation of the modifications of the three previous years. The 1967 Constitution was frequently and substantially amended during its first 15 years as Brazil's highest law. By 1982 over half of its original 200 articles had been altered through one of 22 constitutional amendments promulgated by the military government,and 10 additional articles had been added. After 1967, a further 15 or more Institutional Acts and many additional Complementary Acts had been decreed to modify Brazilian constitutional law; by 1982, however, these had all been either abrogated or incorporated into the constitutional amendments. The 1967 Constitution changed the formal name of the country from the United States of Brazil to the Federative Republic of Brazil (Republica Federativa do Brasil). In spite of the name change, the provisions of the 1967 Constitution significantly increase the power of the federal (or central) government with respect to the state governments. This centralization of power in federal authorities, seated in the national capital in Brasilia, is most apparent in Articles 10 and 11, which allow the federal president to intervene in the affairs of state government (to the point of removing the state governor) for a wide variety of reasons. In spite of this rather severe limitation, state governments did retain important prerogatives of the past, including significant powers of taxation. Each state has its own constitution, although none can contradict the terms of the federal Constitution. The Constitution is divided into five major sections. The first, consisting of 144 articles, details the system of government. The second section spells out the nation's declaration of civil rights in 15 articles. The subsequent 15 articles outline the nation's economic and social order. Articles 175 through 180 discuss the family, education, and culture; Articles 181 through 210 are under the heading of general and transitory provisions. The Constitution may be amended on a proposal by Congress or by the federal president. Constitutional Amendment Number 8, dated April 1977, made it more difficult for Congress to propose an amendment, and easier for the president. For the former, one-third of the members of each legislative body must sponsor an amendment. An amendment must be approved by two-thirds (it had been a simple majority between 1977 and 1981) of the members of each legislative body. The Constitution cannot be amended during a state of siege. It should be noted, however, that on two important occasions, in December 1968 and April 1977, the president sidestepped these constitutional provisions by closing Congress in order to decree important constitutional provisions. On these occasions when Congress threatened to challenge the executive authority, Institutional Act Number 5 and Constitutional Amendments Numbers 7 and 8 (the so-called April package of 1977), both of which greatly increased the powers of the executive, were issued by decree. The Executive Article 73 of the Constitution reads: "The executive power is exercised by the president of the republic assisted by the ministers of state." A vice president serves jointly with the president and replaces him in the event of temporary impairment or the death of the president. Under military rule the vice presidency has often been held by a civilian. It was a tribute to the process of abertura that Vice President Antonio Aureliano Chaves de Mendonca (a civilian) served as interim president for seven weeks following President Figueiredo's heart attack in September 1981. In 1969, under similar circumstances, military commanders had prevented the civilian vice president from assuming the presidency as mandated in the Constitution. Both the president and the vice president must be Brazilians and at least 35 years old. President Figueiredo assumed office on March 15, 1979, for a six-year term (the presidential term of office was raised from five to six years in 1977). Popular, direct elections of the president ended with the fall of the Second Republic in 1964. The five subsequent military presidents were "elected" indirectly by an electoral college, consisting of all members of Congress plus delegates of the state legislatures. (The number from each state depended on its population until 1982, when a constitutional amendment changed the makeup of the electoral college to include six representatives from each state legislature, irrespective of size.) In fact, however, these indirect elections were no more than pro forma exercises because Congress and the state legislatures, between 1964 and 1982, were stacked with regime appointees and other delegates certain to endorse the candidate chosen by the outgoing military president. The real presidential politicking during these years took place among the military hierarchy in a process that was not publicly visible. Much of the excitement over the 1982 popular elections was that they held the prospect of electing a Congress and state legislatures that for the first time since 1964 would be truly independent of the military government. Thus the indirect election of Figueiredo's successor, scheduled for October 15, 1984, held the potential of being a meaningful democratic event (see Elections under Military Rule, this ch.). The constitutional powers of the president are many and are varied. In the legislative area, he may issue decree-laws on matters concerning "national security, public finance, including standards on taxation, and the establishment of public posts and setting of salaries." He also is given exclusive power to propose laws in these and other matters, including administrative and judiciary organization, a variety of concerns with respect to the civil service, and amnesty for political criminals. In the event of "war, or serious disturbance of order or threat of the outbreak of such disturbance," the president is also empowered to decree state of a siege, under which he may take virtually any measure he deems necessary to restore order. Aside from his power to legislate, the president appoints and removes key advisers and ministers of state without the need for congressional approval. State governors were also appointed by the president until the 1982 elections. He also approves gubernatorial appointments of a large number of key mayors to head local governments in areas deemed essential to national security. After 1982 the president retained the power to intervene in state and local governments, and an uncooperative governor could be removed under the authority of the Constitution. In August 1982 the president's cabinet was enlarged from 20 to 21 members. It included the ministers of aeronautics, agriculture, army, communications, education and culture, finance, foreign affairs, health, industry and commerce, interior, justice, labor, mines and energy, navy, transportation and public works, and welfare and social security. Also within the cabinet were five officials who were considered to be the president's closest advisers. These were the minister-chief of the Planning Secretariat of the Presidency, who in 1982 was Brazil's so-called economic czar, Antonio Delfim Netto; the chief of the Civilian Household (Casa Civil) of the presidency, the president's principal political adviser; the chief of the Military Household (Casa Militar) of the presidency, who acts as a liaison to the armed forces, the chief of the National Intelligence Service (Servico Nacional de Informacoes-SNI), the position held by Figueiredo before he became president; and the chief of the Special Ministry for Land-Related Issues, a new cabinet position that was initially filled by Brigadier General Danilo Venturini, who also served as secretary of the National Security Council (Conselho de Seguranca Nacional-CSN). The holders of these five posts have, under military rule, generally been regarded as the most powerful men in Brazil after the president, because of their direct, daily access to the president (see fig. 8). The relative power of each, however, has varied over time. For many years the chief of the Civilian Household, for example, was retired General Artur Golbery do Couto e Silva, who was considered the architect of much of the regime's political evolution from 1964 until his retirement in August 1981. After that time the position lost much of its previous influence. The importance of the minister-chief of the Planning Secretariat is commonly attributed to the economic and political skills of Delfim, who was appointed in August 1979. The SNI chief has nearly always been powerful. The fact that presidents Figueiredo and Emilio Garrastazu Medici had both held that position led many observers to consider General Octavio Aguiar de Medeiros, who in late 1982 had been SNI chief since early 1978, a prime candidate for the presidential term to begin in 1985. This "inner cabinet" also included Figueiredo's personal secretary, Heitor Aquino Ferreira, until his fall from grace in late 1981. Before that time he and the other five officials were referred to as the "palace group" (grupo palaciano, after the Planalto Palace, the seat of government in Brasilia). This inner group of presidential advisers was also known as the "9 o'clock group" because they met with the president every day at 9:00 A.M. Another important advisory body is the CSN, which consists of the president, the vice president, the cabinet ministers, the chief of the Armed Forces General Staff (Estado-Maior das Forcas Armadas-EMFA), and the chiefs of staff of the three armed services. First created under the 1946 constitution, the CSN did not become a vital political institution until 1964. It was particularly important in the years immediately following the 1964 coup; in 1982 it remained powerful, though some of its prerogatives may have been lost to the "inner cabinet." Among the powers granted the CSN in the 1967 Constitution are "to establish the permanent national objectives and the bases for national policy" and to give prior consent in executive decisions considered indispensable to national security, including land concessions, installation of means of communication, opening of transportation routes, and establishment and operation of industries affecting national security. Within the Brazilian executive there are hundreds of agencies for the provision of social services, the operation of government-owned industries, and the administration and regulation of many aspects of national life. Brazil is somewhat infamous for its bureaucracy. For a time during the 1970s the government created a Ministry of Debureaucratization (complete with its own bureaucracy) to try to remedy the many problems created by the growth of so many government agencies. Basically, there are five kinds of agencies: the interministerial councils use personnel from various ministries to make up such organizations as the Economic Development Council, National Monetary Council, and the Industrial Development Council; federal autarquias, or semi-autonomous enterprises, such as the Central Bank of Brazil; federal institutes; government corporations; and mixed-economy corporations, which may be wholly owned or partially owned by the government. Some prominent examples of these are Embraer (Empresa Brasileira de Aeronautica), a Brazilian aeronautics enterprise, the Bank of Brazil, and the Brazilian Petroleum Corporation (Petroleo Brasileiro-Petrobras). [See Figure 8.: Structure of Government, December 1982] Since 1964 many of these agencies have been headed by military officers. The bureaucracy also acts as a power base for the so-called technocrats. For politically motivated civilians such as Delfim, the government executive agencies provide ample opportunity to build a following through patronage (see Conservative Groups, this ch.) The Legislature Brazil has a bicameral legislature, consisting of the Senate and the Chamber of Deputies, which is in session in Brasilia every year from March 1 to June 30 and again from August 1 to December 5. Senators serve eight-year terms of office and must be at least 35 years old; deputies serve for four years and must be at least 21. Since the early 1960s the Congress has gone through continual evolutionary change in terms of its composition and its relationship with the executive. This evolution sped up in the early 1980s; the executive branch used its prerogatives to retain control over the legislature at the same time that it pursued the process of democratization under abertura. (The 1982 congressional elections, in particular, produced a Congress that was widely viewed as more popularly representative and independent of the executive branch than any legislature since 1964.) Under the administration of Joao Goulart, the Congress played the role of an effective opposition, blocking many of the reforms proposed by the executive (see The Presidency of Joao Goulart, ch. 1). After the 1964 coup d'etat some 100 members of Congress, stripped of their political rights, were removed from their posts and replaced by alternates who were more amenable to the wishes of the executive. Nonetheless, a political crisis ensued in December 1968 when the Chamber of Deputies refused to accede to an executive request to strip a deputy of his parliamentary immunity. The executive closed Congress and decreed Institutional Act Number 5, which vastly increased executive powers. Congress did not reconvene until April 1970. Congressional elections held later that year, under new rules that lowered the number of deputies from 409 to 310 and altered the system of proportional representation, resulted in a Congress more compliant with executive wishes. The 1974 elections, however, brought significant victories for the opposition, and between 1974 and 1978 ( a period that saw the initiation of the process of political "decompression," or distensao, under President Ernesto Geisel) the legislature again gained a real, though limited, role in government decisionmaking. By April 1977 the prospects of an even larger opposition victory in the 1978 elections led President Geisel to close Congress once again in order to decree "new rules of the game." The "April package" increased the number of deputies to 420, again altered the system of proportional representation to' favor rural areas more prone to support the government, and instituted the "bionic senators." (One of each states three senators was indirectly elected by the states legislature in 1978; subsequent legislation barred this procedure for the 1986 election.) These changes ensured a government victory in the November 1978 congressional elections, after which the National Renovating Alliance (Alianca Renovadora Nacional-Arena) assumed 41 seats in the Senate and 231 seats in the Chamber of Deputies while the opposition Brazilian Democratic Movement (Movimento Democratico Brasileiro-MDB) held 25 Senate seats and 189 seats in the Chamber of Deputies (see Electoral Politics, this ch.). After 1978 the Congress again became a stabilizing influence in providing political support and legitimacy to President Figueiredo's efforts at abertura. New political party legislation in 1979 had the effect of gradually eroding the executive's base of support in Congress, however, as the new government party, the Democratic Social Party (Partido Democratico Social-PDS) experienced numerous defections as the 1982 elections approached. By late 1981 opposition parties held majority in the Chamber of Deputies for the first time since 1965, thus forcing the executive to negotiate with the opposition over controversial legislation. Alignments continued to shift, however, and in September 1982 Brazilian officials reported that the PDS held 36 to 69 Senate seats and 225 of 420 seats in the Chamber of Deputies. A series of presidential decree "packages" in 1981 and 1982 again changed the rules of the game in anticipation of major opposition victories in the 1982 congressional elections. Included among them was an increase in the size of the Chamber of Deputies from 420 to 479. Every four years at least one-third of the Senate (two-thirds in alternate elections, e.g., 1986, 1994) and the entire Chamber of Deputies are elected. After the election each new legislative body elects a president and a steering committee to determine the chamber's agenda and guide its work. Legislation, except on subjects that are the exclusive prerogative of the president of the republic, may be proposed by a simple majority of either chamber. Legislation proposed by the president becomes law either if both chambers approve it by a simple majority or if no action is taken in Congress for 90 days (40 days if the president considers the bill urgent). The president holds veto powers, and a two-thirds majority in each chamber is required to override. In addition to legislative functions, the Chamber of Deputies has exclusive power to initiate impeachment proceedings against the president and his cabinet ministries. The Senate then judges impeachment charges; the Senate also serves as a court for judges of the Supreme Federal Tribunal or an attorney general charged with crimes of responsibility. The Senate also confirms presidential appointments of an attorney general, certain judges, and chiefs of permanent diplomatic missions. One of the most important functions of Congress designated by the 1967 Constitution, of course, is its members' participation in the electoral college that elects the president of the republic. The Judiciary The judicial branch of government has undergone considerable change during the years of military rule. The jurisdiction of the federal courts increased at the expense of the state courts, which lost their power to try infractions of federal laws in the first instance. The role of the military courts, not surprisingly, increased dramatically; and a new court, the National Magistrate Council, was created. While Institutional Act Number 5 was in force (1968-78), the power of the president to dismiss judges cost the judiciary its traditional independence from the executive. Nevertheless, there was little publicly aired conflict between the judiciary and the military government; the traditionally conservative Supreme Federal Tribunal was reluctant to use its powers of judicial review to declare legislative or executive action unconstitutional. During the late 1970s and early 1980s, however, lower courts often challenged the government is cases involving the constitutional rights of citizens, e.g., issuing writs of habeas corpus. All federal judges are appointed by the president for life (they must retire at age 70); they can be removed from office only as a result of judicial sentence. Supreme Federal Tribunal justices are appointed by the president, with the approval of the Senate, from among citizens at least 35 years old and "of notable juridical leaning and of spotless reputation." The size of the Supreme Federal Tribunal has varied under military rule: in 1965 President Humberto de Alencar Castello Branco enlarged the court from 11 to 16 (to dilute the influence of several justices sympathetic to the populist ideals of former president Getulio Vargas); in 1969 President Artur da Costa e Silva (using executive powers granted by Institutional Act Number 5) lowered the number back to 11, removing judges believed to be supporters of Vargas' policies. The court may meet in panels or in plenary sessions. In addition to its power to rule on the constitutionality of laws, the Supreme Federal Tribunal holds original jurisdiction in a number of matters, including crimes committed by certain high officials (including the president), lawsuits between a foreign government and an agency of the Brazilian government or between a state government and the federal government, and jurisdictional disputes between various lower courts. Most of its efforts, however, are spent in hearing appeals from lower courts. The National Magistrate Council, created by constitutional amendment in April 1977, consists of seven justices from the Supreme Federal Tribunal. It is convened to hear criminal complaints levied against federal judges. The Federal Court of Appeals, also located in Brasilia, consists of 27 judges. They sit in plenary, in chambers, or in panels according to specialization. The court has original jurisdiction over appeals of the decisions of lower federal judges. The 1967 Constitution created, for the first time, federal courts in the capitals of each state, territory, and in the Federal District (Brasilia) to try cases involving infraction of most federal laws. One judge sits on most of these courts of first instance. Special courts under federal jurisdiction, also mandated as part of the judiciary in the 1967 Constitution, include military, electoral, and labor courts. In addition to trying military persons of crimes under military law, the system of military courts hears cases involving civilian infractions of the National Security Law of 1979 (see Criminal Law and Procedure, ch. 5). Lower military courts hear the majority of such cases being tried in the first instance. The Superior Military Tribunal consists of 15 judges appointed by the president for life. Those convicted by the Superior Military Tribunal have the right to appeal to the Supreme Federal Tribunal. The electoral courts were created by Vargas with the objective of making elections more meaningful and honest. Both their administrative and judicial functions were broadened in the 1967 Constitution. The Superior Electoral Tribunal, seated in Brasilia, consists of five judges (three from the Supreme Federal Tribunal, two from the Federal Court of Appeals) and two lawyers chosen by the president of the republic. Regional electoral courts, found in the capital of each state and in the Federal District, also consist of five judges and two lay persons. Local arms of the electoral court system consist of electoral judges and electoral boards. These judges have wide competency in matters pertaining to elections as well as the registration and financing of political parties. The system of labor courts, instituted to resolve disputes between management and labor, consists of the Superior Labor Court, regional labor courts, and local boards of conciliation and judgment. The Superior Labor Court is composed of 17 judges, all appointed by the president of the republic. Eleven are magistrates for life, six are temporary; half of the latter represent management, the other half, labor. The Public Ministry, although formally an arm of the executive branch, is attached to all levels of the judiciary. It acts as the legal representative of the government in all cases involving the public interest. In addition to defending the rights and promoting the interests of the federal government, the Public Ministry sees that laws are obeyed and safeguards the right of individuals unable to provide for their own legal defense. It is headed by the attorney general, who is appointed by the president and approved by the Senate, and is staffed by career attorneys. Each state also has a public ministry. All state and local governments also preside over their own system of civil, criminal, and military courts. Article 144 of the Constitution lays out broad outlines for certain features of these courts, including the qualifications and remuneration of judges, the kinds of state and local courts, and their membership.