The New Presidential Regime in Brazil: Constitutional Dismemberment and the Prospects of a Crisis

—Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Latin America is essentially presidential. All eighteen Latin American countries^[1] adopt presidentialism as their system of government, but, comparatively to the U.S. Constitution’s “archetype,” Latin American presidents are normally granted expanded lawmaking and budgetary powers.^[2] Brazil follows such a pattern, but it has some particularities: first, its political party system is certainly the most fragmented in the region (and possibly in the world), so it fundamentally hinges on stable political coalitions for governability; second, it has long courted parliamentarism and, in fact, was the only country in the region where it was adopted for a long period^[3] (a monarchical parliamentarism between 1840 and 1889, and then a republican one between 1961 and 1963). Both are connected: parliamentarism, though never again adopted, is normally revived in contexts of political crisis, which occurs when the relationship between Presidents and Congress are in serious trouble. Currently, the contentious relationship between President Jair Bolsonaro and Congress has sparked a new presidential paradigm: a President with limited lawmaking and, mainly, budgetary powers. It is certainly not parliamentarism – even though some call it “soft parliamentarism” -, but it is clearly not the presidentialism that was designed in the 1988 Constitution. Is Brazil enduring a sort of “constitutional dismemberment” in its system of government?

Richard Albert’s concept of “constitutional dismemberment” is already well-known, which refers to a change to “one or more of the constitution’s essential features – a fundamental right, a load-bearing structure, or a core feature of the identity of a constitution.”^[4] A significant change to the presidential regime is naturally one such matter that impacts largely the constitutional framework: the system of checks and balances, the institutional incentives for governability, the implementation of public policies (and, as such, the enforcement of core social principles of Brazil’s 1988 Constitution), all of which depends on how presidents are able to negotiate their agenda with Congress. The constitutional system therefore needs to establish a set of institutional incentives for facilitating such negotiations for the sake of governability, which, in various presidential regimes, justifies the lawmaking and budgetary powers granted to presidents.

The difficulty in presidential regimes – and this helps explain many of the political instabilities in Latin America – is how to achieve governability with necessary accountability. Expanded presidential powers can open the pandora’s box to authoritarian and corruptive behaviors when they are not subject to an effective system of checks and balances. Juan Linz’s famous criticism of presidentialism is well-known, in which he points out its plebiscitarian nature as one of its most damaging characteristics. As he says, “perhaps the most important consequence of the direct relationship established between a president and the electorate, the absence of any dependency on politicians… is the sense of being the elected representative of the whole nation, identifying obviously the people with his constituency and ignoring those voting for his opponents.”^[5] Though Linz’s thesis finds interesting counterarguments,^[6] it raises some serious concerns with the incentives for usurping powers that presidential regimes provide for. On the other hand, weak presidents can be the seed for instability since Congress, with a more dispersed and particularistic agenda, can suffer from coordination problems. “Politics exacerbates the massive coordination problem”^[7] – wrote Barry Weingast -, and this is the reason why a coordination device, such as a well-designed constitution with incentives for reaching consensus, is needed.

Brazil’s 1988 Constitution was drafted with a dispute over the system of the government the country should adopt. The Committee for the systematization of the constitutional text proposed parliamentarism as the system of government, which was, however, strongly opposed by then President José Sarney, conservative congressmen, and even the Supreme Court. Senator Mario Covas, the leader of the majority and a key forward-looking figure during the works at the Constituent Assembly, even said that all the reaction against the preliminary draft of the constitutional text had as target “the system of government, the parliamentarism, which was exactly the most negotiated topic at the Constituent Assembly.”^[8] Presidentialism ended up being chosen in the end, but a plebiscite would take place five years later, when Brazilians could decide which form of government (republic or – curiously – monarchy) and system of government (presidential or parliamentary) the country would adopt. With a huge support of conservative and even left-leaning parties, such as the Worker’s Party (PT) and the Democratic Labor Party (PDT), presidentialism won the plebiscite with 69% of valid votes. This landslide victory of presidentialism, notwithstanding, parliamentarism would be kept alive in Brazil’s political vocabulary.

If presidentialism was finally adopted as the system of government, it was not with a serious concern with what had happened to the country while the 1946 Constitution was in force. Despite its democratic design, the 1946 Constitution, with its lack of coordination incentives for a Congress with increased powers (such as some budgetary powers), favored a very turbulent relationship between Presidents and Congress.^[9] It was during its lifetime that Brazil, among other crises, experienced parliamentarism for a brief period (1961-1963) and ended up with a civil-military dictatorship (1964-1985). The 1988 Constitution, though even more democratic than the 1946 Constitution, paradoxically adopted some mechanisms of the authoritarian 1967 Constitution and created new ones, such as powers to: a) initiate constitutional amendments,^[10] b) issue legislation (particularly, the so-called Medidas Provisórias^[11], a sort of provisional decree), c) partially and totally veto bills,^[12] d) exclusively propose bills in certain areas (for example, the national budget), e) and a substantial and centralized control over public spending. Figueiredo and Limongi rightly asserted that “The 1988 Constitution strengthened the institutional fragmentation and the centrifugal forces of the Brazilian political system that was in force in the 1946 Constitution, but, on the other hand, radically changed the balance among the powers as set out in the prior democratic Constitution, concentrating power on the Executive.”^[13]

This strengthening of presidential powers could be justified as providing the needed coordination tools for governability, overcoming thereby a problem identified in the 1946 Constitution. Yet, the 1988 Constitution was also very much concerned with creating a web of accountability institutions as a counterpart for such expanded powers. Though overly optimistic, Marcus André Melo and Carlos Pereira, two prominent Brazilian political scientists, have a point when they say that “the key to effective governance and democratic stability is the combination of strong presidents and robust checks and balances… The key to promoting sustainable democracy in countries such as Brazil, Chile, and Uruguay is thus the success in establishing a robust system of checks and balances.”^[14] Their book was published in 2013, just months before the massive protests in the country that year, and thereby could not yet capture the change in political mood and the crisis that would follow, but it stresses one fundamental aspect of 1988 Constitution: first, presidents, in multiparty democracies, need to be strong, with lawmaking and budgetary powers, in order to solve expected coordination problems; second, they must be accountable, so the constitutional text has to design a web of accountability institutions, tools and principles to protect presidentialism from authoritarian assaults, as has happened in the past.

As Presidents have strong incentives to practice pork-barrel politics and share cabinet appointments with Congress as a way to obtain political support and build stable coalitions – the so-called “coalitional presidentialism”^[15]-, it did not take long to associate such a system with clientelism, patronage, corruption, and governability deadlocks. Fascinating studies – many strongly based on empirical data – were written pointing out the Brazilian dysfunctional political system.^[16] Yet also compelling counteranalyses have shown the other side of the story, and Argelina Cheibub Figueiredo & Fernando Limongi’s argument that Brazil’s political system favors governability and political discipline is particularly famous.^[17] More recently, already focusing on the last critical developments in the country, when corruption became the top subject of most newspapers and media outlets, they argued: “Throughout the crisis, corruption began to be identified with coalitional presidentialism as a price to be paid by the president to obtain parliamentary support. As we previously said, the two things co-exist, coalition and corruption, but there is a long distance between co-existence and causality.”^[18]

Jair Bolsonaro was elected President with an anti-corruption discourse: He argued that the so-called “old politics”, which is nothing other than “coalitional presidentialism,” should be attacked. The package was all-embracing: politicians are corrupt, so no more pork-barrel politics; cabinets appointments would be “technical” and also ideologically aligned with his agenda. If such a proposal did not materialize entirely in practice, the reality is that it created a strong divide in Congress. The other content of such an agenda is a continuous disruption of the web of accountability, based on the premise that Bolsonaro is the sole representative of the nation, so institutional constraints should not imply deviation from his political project.

History shows where this goes, even though Bolsonaro’s presidency is an entirely new phenomenon in Brazilian democracy. Step by step, his government, although still supported by a third of the electorate, is becoming weaker and trapped. Even though parliamentarism is not in sight, there is an effective change in the system of government that will have long-lasting effects: Congress is strategically taking advantage of Bolsonaro’s growing insulation and passing a constitutional amendment^[19] and legislation that give congressmen much greater control over the federal budget, obliging the government to spend a larger share of the budget to members of Congress’s own projects. This would mean that the President will be stripped of his control over a significant part of the federal budget. This is not trivial: with much less control over the federal budget, a central coordination device established in the 1988 Constitution for the sake of governability is being radically disrupted.

President Bolsonaro is clearly attacking Brazilian institutions on a daily basis. The irony is that, by doing so, he is also jeopardizing the “coalitional presidentialism” that is the core of the system of government laid down in Brazil’s 1988 Constitution. Unless a new imponderable development takes place, there are some potentially predictable scenarios. The first, which surfaces naturally with populists, is radicalization and an even stronger appeal to the plebiscitarian nature of his office. It is no wonder that, right during Carnival, President Bolsonaro posted a video on WhatsApp inciting his supporters to take the streets on March 15 to protest against Congress and the Supreme Court. He followed the words of the Minister of his Institutional Security Office, Augusto Heleno, who said in the previous week that “we can’t accept these guys [lawmakers] blackmailing us all the time”.

President Bolsonaro still has some considerable support – and thus such a scenario could turn very ugly. On the other hand, it could revive that ever-present history of disputes over the system of government in the country. The presidentialism will certainly not be the same one as established in the 1988 Constitution anymore – and this will have long-lasting effects that will go way beyond Bolsonaro’s term in office. A “constitutional dismemberment” is the right word in this case, and if such a change will have positive or negative effects in the long-run is yet to be seen. Brazilian history also has other lessons. Bolsonaro’s government has already “[failed] to keep tight control over Congress”^[20], and scandals in his government are popping up on a regular basis. A “broad coalition [taking] the street to demand the resignation of the president”^[21] has yet not occurred, which is the third element Aníbal Pérez-Liñan points out for a probable impeachment. Politicians’ strategic calculation – many realized that President Dilma Rousseff’s impeachment played out badly for their electoral purposes, after all – could also be a fourth element. In any case, impeachment, in addition to parliamentarism, is part of Brazil’s political vocabulary.

It is still too early to foresee how things will evolve. However, when the discreet and respected Dean of the Supreme Court, Justice Celso de Mello, goes to the press and says that, by posting that video, President Bolsonaro “denies the value of the constitutional order, ignores the fundamental meaning of the separation of powers”, and “is not up to the very high office he serves”, the message could not be more clear. How institutions – that web of accountability Bolsonaro is so willing to destroy – will react is what will tell us the next story.

Suggested citation: Juliano Zaiden Benvindo, The New Presidential Regime in Brazil: Constitutional Dismemberment and the Prospects of a Crisis, Int’l J. Const. L. Blog, Mar. 10, 2020, at: http://www.iconnectblog.com/2020/03/the-new-presidential-regime-in-brazil-constitutional-dismemberment-and-the-prospects-of-a-crisis/

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[1]           Normally the literature places the following countries as part of Latin America: Brazil, Mexico, Argentina, Venezuela, Colombia, Chile, Peru, Ecuador, Dominican Republic, Guatemala, Costa Rica, Cuba,, Uruguay, El Salvador, Panama, Paraguay, Honduras, and Nicaragua. The main criterion is a “shared history of Iberian colonialism”. See Jose C. Moya, ’Introduction: Latin America—The Limitations and Meaning of A Historical Category’ in Jose C. Moya (ed.), The Oxford Handbook of Latin American History (Oxford University Press 2012)

[2]           José Antônio Cheibub, Zachary Elkins, and Tomi Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 Texas Law Review 1707, 1720.

[3]           ibid 1709.

[4]           Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions, (Oxford University Press 2019) 85.

[5]           Juan J Linz, ‘Democracy: Presidential or Parliamentary – Does it Make a Difference’ (1985) Paper prepared for the project “The Role of Political Parties in the Return to Democracy in the Southern Cone” 11. See also Juan J Linz and Arturo Valenzuela, The Failure of Presidential Democracy, (John Hopkins University Press 1994)

[6]           See José Antônio Cheibub, Zachary Elkins, and Tomi Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 Texas Law Review 1707; Marcus André Melo and Carlos Pereira, Making Brazil Work: Checking the President in a Multiparty System, (Palgrave Macmillan 2013) ; Argelina Cheibub Figueiredo and Fernando Limongi, ‘Presidential Power, Legislative Organization, and Party Behavior in Brazil’ (2000) 32 Comparative Politics 151-70.

[7]           See Barry Weingast, ‘The Political Foundations of Democracy and the Rule of Law’ (1997) 91 American Political Science Review 245, 291.

[8]           See José Nunes Cerqueira Neto (2020), ‘O Supremo Contra a Constituição’. Doctoral Thesis. University of Brasília. Law School

[9]           See Sérgio Abranches, Presidencialismo de Coalizão (Companhia das Letras 2018)

[10]         Art. 60, II, of the 1988 Constitution.

[11]         Medidas Provisórias (Provisional Measures) are temporary legislation issued by the executive branch with immediate force of law, but which needs to be approved by Congress in 120 days or it becomes ineffective. According to Art. 62 of the 1988 Constitution, “in relevant and urgent cases, the President of the Republic may adopt provisional measures with the force of law; such measures shall be submitted immediately to the National Congress.” There are some areas which cannot be subject of provisional measures, such as electoral and criminal law, among others.

[12]         Art. 84, V, of the 1988 Constitution.

[13]         Argelina Cheibub Figueiredo and Fernando Limongi, ’Instituições Políticas e Governabilidade: Desempenho do Governo e Apoio Legislativo na Democracia Brasileira’ in Carlos Ranulfo (ed.), A Democracia Brasileira: Balanços e Perspectivas para o Século 21 (Editora UFMG 2007) 25.

[14]         Marcus André Melo and Carlos Pereira, Making Brazil Work: Checking the President in a Multiparty System (Palgrave Macmillan 2013) 9

[15]         See Sergio Abranches, ‘Presidencialismo de Coalizão: O Dilema Institucional Brasileiro’ (1988) 31 Dados – Revista de Ciências Sociais 5, 5-34.

[16]         See Barry Ames, The Deadlock of Democracy in Brazil, (University of Michigan Press 2001) ; Scott Mainwaring, ‘Dilemmas of Multiparty Presidential Democracy: The Case of Brazil’ (1992) Working Paper #174 Kellogg Institute ; Scott Mainwaring, Rethinking Party Systems in the Third Wave of Democratization: The Case of Brazil, (Stanford University Press 1999) ; Bolivar Lamounier, ‘Perspectivas de Consolidação Democrática: O Caso Brasileiro’ (1987) 2 Revista Brasileira de Ciências Sociais 44, 44.

[17]         Argelina Cheibub Figueiredo and Fernando Limongi, Executivo e Legislativo na Nova Ordem Constitucional, (Editora FGV 2001)

[18]         Fernando Limongi and Argelina Cheibug Fiegueiredo, ‘A Crise Atual e o Debate Institucional’ (2017) 36 Novos Estudos CEBRAP 79, 95.

[19]         See Constitutional Amendment n. 100/19

[20]         Aníbal Pérez-Liñán, Presidential Impeachment and the New Political Instability in Latin America, (Cambridge University Press 2007) 3

[21]         ibid.