Cablegate: Senate Strikes Back Against Presidential Decree Authority

DE RUEHBR #1681/01 3661617
R 311617Z DEC 08



E.O. 12958: N/A
SUBJECT: Senate Strikes Back Against Presidential Decree Authority

REFS: Brasilia 390, 07 Brasilia 921, 07 Brasilia 1745, 07 Brasilia
1991, 07 Brasilia 2233

1. (U) Summary. The days of "legislation by presidential decree"
may be numbered, after the Senate President recently took the
unprecedented step of returning a decree to President Lula, and both
houses of Congress again focused on curtailing the President's
ability to control the legislative agenda through provisional
measures (medidas provisorias, MPs)(ref A). Legislators appear
determined to amend the Constitution to put Congress on a more equal
footing with the executive branch. If they are successful, a new
set of rules for politics in Brazil will arise that will require
more horse-trading and compromise from the executive branch. End

2. (U) Until MP 446 hit the Senate in mid-November MPs were mainly
only a favorite complaint in Congress: deputies and senators made
passionate speeches against them, leaders agreed something had to
change, but nothing dramatic happened. The current rules came into
effect in 1989 with the new constitution, and all five presidents
since have made generous use of MPs to control the legislative
agenda. The executive branch issues hundreds of MPs a year to bring
about federal action in a seemingly unlimited number of areas. MPs
have the force of law on issuance, and Lula has used his majority in
the Chamber of Deputies, and to a lesser extent the Senate, to turn
Congress into a rubber stamp shop for actions that in many other
democracies would have been accomplished through ordinary
legislation. A shot across the bow changed everything on November

3. (U) Senate President Garibaldo Alves Filho (Brazilian Democratic
Movement Party - PMDB, a non-ideological party in the government
coalition; of Rio Grande do Norte) surprised not only President
Lula's administration but everybody in Congress by returning MP 446
to the executive branch due to the lack of "urgency and relevancy,"
the constitutional, but routinely ignored, requirements for MPs.
The subject of MP 446, tax benefits and exemptions for philanthropic
entities, was not especially significant in itself, but as it dealt
with a subject that was obviously neither urgent nor particularly
appropriate for an MP, it opened a window of opportunity for Alves.
For the first time under this Constitution, the legislative branch
had returned an MP to the executive branch.

Questions about Validity of Senate President's Action
- - - - - - - - - - - - - - - - - - - - - - - - - - -

4. (U) Nobody expected Alves, who became president of the Senate
after the crisis that brought down Renan Calheiros (refs B, C, D, E)
and was viewed as a back-bench Caspar Milquetoast with no
inclination to use the limited powers of his office and was expected
to leave no mark upon it, to fire the shot against President Lula's
legislative urges. Alves took his own party by surprise when in a
regular Senate session he announced he was taking the unprecedented
step of returning an MP to the executive. Some members complained,
saying there was no supporting law, while others approved, but in
the end the Senate seemed pleased at the first real response to
Lula's pattern of dominating the congressional agenda.

5. (U) Senator Paulo Paim (Workers' Party - PT, the lead party in
the ruling coalition; of Sao Paulo), a member of Lula's party and
one of the legislators who co-drafted the 1988 Constitution, told
our political assistant that MPs are simply a mistake and were not
conceived to be used as they are now. Even he thinks they are being
used indiscriminately and the Constitution needs to be changed. He
told us that presidents have become accustomed to legislating
through MPs, blocking the legislative branch from doing its job.
The executive has gone as far as presenting MPs with the same
language in bills under consideration so as to circumvent the normal
legislative process; he said this has happened to some of his
proposed bills. Paim has introduced a draft Constitutional
amendment to change the rules governing the use of MPs.

6. (U) After Alves returned MP 446 to President Lula, the
government leader, Senator Romero Juca (PMDB; of Roraima), asked
the Senate Committee on the Constitution, Justice, and Citizenship
(CCJ) to rule whether Alves's action was permissible, arguing that
such a decision required a plenary vote by all senators. CCJ
Chairman Marco Maciel (Democrats - DEM, opposition; of Pernambuco),
opted not to jump into the fray, and said the Committee would not
act until there was a political solution to the collision. In the
meantime, MP 446 is considered valid, with the force of law, because
of Juca's petition. So far, the real effect of Alves's action is
null, but the symbolic effect is potentially huge.

BRASILIA 00001681 002 OF 002

Presidential Behavior Modification?
- - - - - - - - - - - - - - - - - -

7. (U) In the beginning of December, the executive branch decided
to not engage the Senate in a direct fight over the returned MP, but
instead introduced a bill with the same text. This is arguably the
first time Lula has backed off from legislating by decree, and
suggests Alves succeeded in modifying the president's behavior, at
least for now. At the same time, Alves has energized the debate in
Congress over MPs. The CCJ has not decided on the constitutionality
of Alves's action on MP 446, and the CCJ could even reject Juca's
request for a ruling, which would probably have the effect of
upholding Alves's action.

MPs under attack on other fronts
- - - - - - - - - - - - - - - - -

8. (U) In the meantime, another player joined the fracas. On
December 3, the Public Ministry, which operates independently from
the other three branches of government, filed a petition against the
MP before the federal judiciary stating that the MP is
unconstitutional. This is tantamount to a direct attack by another
branch of government against the executive's use of MPs.
Then the president of the Chamber of Deputies, Arlindo Chinaglia
(PT; of Sao Paulo), threw gasoline on the fire by stating that
before analyzing any bill dealing with the same subject in MP 446,
the Senate must decide whether Garibaldi's decision is valid or not.
With one stroke, Chinaglia defeated the government's attempt to get
around the problem by introducing a new bill on the same subject,
which is, ironically, the opposite of what it usually does by
issuing an MP to obviate the need for ordinary legislation.

- - - -

9. (U) The first act against the continuous stream of MPs from
President Lula has already given Congress an appearance of more
determination and strength. Returning an MP was Alves's way of
telling Lula that it is not the role of the executive branch to
legislate, and Lula seemed to get the message. Whether it will
stick is uncertain. What is certain is that Garibaldi took a step
toward changing the relationship between the executive and
legislative branch, and Congress now seems readier than ever to
amend the constitution to change the rules. The most likely outcome
is an amendment so that MPs will no longer "lock" the congressional
agenda after 45 days, and new rules about how MPs are placed on the
legislative agenda. But action against MPs should not be
misconstrued as a move against President Lula, who is more popular
than ever and has broad support in Congress, but rather it is an
attempt by the legislative branch to reclaim sovereignty over its
area of authority, and repair the imbalance of powers introduced in
the 1988 Constitution.


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