—Juliano Zaiden Benvindo, University of Brasilia
The current moment of political instability and growing discontent with the political class in Brazil has sparked a debate over the possibility of implementing parliamentarism as a way out. This radical change has been defended as a more stable system of government.[1] It would also be a major break with the Latin American tradition: In the wake of independence, the new Latin American nations adopted a type of presidential system somewhat inspired by the American model, although bestowing greater lawmaking powers on the executive.[2] Yet, such a radical change would not be the result of any well-reasoned discussion, but, rather, would result from a demoralized and highly unpopular Congress trying to figure out how to keep their positions and privileges virtually untouched in the years to come. Backlash against the popular will is gaining momentum in Brazilian politics, potentially radically altering how democracy is exercised in the near future. Therefore, the key question in this debate is perhaps not “which system of government would yield greater stability?”, but, instead, “stability for whom?”
This is not the first time that Brazil has discussed the implementation of the parliamentary system of government. Indeed, as Cheibub, Elkins and Ginsburg argue, “of the former Spanish and Portuguese colonies in the Americas, the only country that adopted a lasting nonpresidential constitution was Brazil, from 1824 to 1891.”[3] This was the period when Brazil was a monarchy, and, particularly from the second regency onwards (1840-1889), a form of parliamentarism marked by strong conflicts between the Cabinet and the House of Representatives took place.[4] Even once the monarchy was transformed into a republic, parliamentarism reappeared periodically. Between September 1961 and January 1963, this system became a way out to the crisis after President Jânio Quadros’ resignation. His Vice-President, João Goulart, was clearly identified as a leftist and a menace to the political and economic elites. Parliamentarism was thereby strategically aimed at curbing any moves he could make against these groups’ interests, but it proved unsuccessful. During its sixteen months in force, there were three prime-ministers, and instability persevered. Even though presidentialism was reinstated with 79% support in a plebiscite, the crisis gained momentum and, in March 1964, President João Goulart was ousted following a military coup that would establish a civil-military dictatorship for the next 21 years. The 1988 Constitution set up a plebiscite, held in 1993, in which the voters could decide “the form (republic or constitutional monarchy) and system of government (parliamentary or presidential) to be in force in Brazil.”[5] The option of a republic won with the support of 66,26% of the voters, while presidentialism obtained a majority of 55,67%.
Presidentialism thus remained in Brazil, and, despite the highly fragmented party system and federalism, there was some stability until recently. In this respect, for example, Angelina Cheibub Figueiredo and Fernando Limongi have argued, against common wisdom, that “Brazilian presidents have had a high degree of success in enacting their legislative agenda.”[6] Despite the large number of parties, presidents could obtain substantial support from coalitions,[7] due to their control of patronage and clientelistic networks. This arrangement was severely impaired during the left-leaning Dilma Rousseff’s presidency, particularly after the election of the most conservative Congress since 1964. President Rousseff’s impeachment came as the closure of a sequence of clashes with Congress. Since Michel Temer became President, a new coalition has been formed. Marcos Nobre has called this a “megacoalition presidency” where “at the limit, every party is in the government.” Even though this “megacoalition” was affected by the last serious episodes of corruption involving the President, the strength of this megacoalition and its common interests with the government – even related to the corruption probe – have proven true. No wonder that President Temer is successfully “clinging on to power” and his conservative legislative agenda, although less effective than some months ago, is moving fast.
It is in such a scenario that parliamentarism has reappeared as a remedy for the current and future political turmoil. President Temer has even said that using this system of government for 2018 elections “would not be unreasonable,” even though, in this case, it would make impossible any popular consultation. There is, after all, a temporal constraint: the 1988 Constitution clearly forbids any modification of the electoral rules in the one year before any election,[8] so any change would need to be in force before October 7. Senator José Serra, a longstanding advocate of parliamentarism who was defeated twice as a presidential candidate, has thereby defended a transition through some changes in the electoral rules already for 2018 in order to lay the groundwork for implementing parliamentarism in 2022. In an interview for the newspaper Estado de S. Paulo, he defended the change as “enhanc[ing] the democratic legitimacy”, especially because, according to him, “in Brazil, presidentialism has been a historical failure.”
This political momentum notwithstanding, there are some legal challenges that may obstruct such a radical constitutional change. Former Justice of the Supreme Court Carlos Ayres Britto, for instance, has mentioned that this modification would be against the unamendable clause of the separation of powers.[9] For him, the 1988 Constitution established an exceptional suspension of this clause for the specific purpose of the plebiscite held in 1993. Therefore, once presidentialism won, the legal framework became “untouchable.” In fact, there is already a preventive action filed in the Supreme Court questioning the constitutionality of a proposal for constitutional amendment aimed at introducing parliamentarism in Brazil.[10] Moreover, Brazil is a federal country, and this naturally raises the question whether states would be also obliged to follow this system of government at the state level. In 1946, the Supreme Court ruled that the adoption of parliamentarism by the southern state of Rio Grande do Sul was a breach of the separation of powers as established at the federal level,[11] which naturally shows how conflictive such a change may be if each of the 27 federal units needs to readapt their institutions to this new political framework.[12]
Parliamentarism has long been a significant topic in Brazilian constitutional history. This debate is always revived when there are threats to the traditional political class’ ability to keep its interests and bargains untouched. The historical examples prove that, beneath this movement, the motives go way beyond good intentions and reasonable thinking, and what prevails instead is a striking capacity to abuse the constitution[13] as a way to unsettle the inherent uncertain feature of democracies. Parliamentarism now reappears when traditional political bigwigs in Congress are under threat of being arrested due to corruption charges, their popularity has reached extremely low levels of trust, and the longstanding funding scheme of their campaigns – based on corporate donations – was declared unconstitutional by the Supreme Court. The uncertainty about their future is the real driving force, not a serious concern for greater stability of the country. If parliamentarism is an option and Brazil needs to design a more democratic and accountable system of political representation, this is certainly not the background for such a serious constitutional change. Carrying out such a change at this juncture may serve the interests of politicians, but it will not solve Brazil’s problems and may even make them worse.[14]
Suggested citation: Juliano Zaiden Benvindo, Parliamentarism in Brazil: Stability for Whom? Int’l J. Const. L. Blog, Aug. 27, 2017, at http://www.iconnectblog.com/2017/08/parliamentarism-in-brazil-stability-for-whom/
[1] There is a rich academic debate over the challenges, benefits and risks of each one of both systems of government. Juan J. Linz wrote the classic paper that influenced a great deal the political science landscape when he, in his Presidential or Parliamentary Democracy: Does it Make a Difference?, argued that “the uncertainties of a period of regime transition and consolidation no doubt make the rigities of a presidential constitution more problematic than the possibility of flexible responses to a changing situation in parliamentary systems”(Juan J. Lins. Presidential or Parliamentary Democracy: Does it Make a Difference?, in The Failure of Presidential Democracy – Comparative Perspectives (Juan J. Linz & Arturo Valenzuela eds., 1994)) His incisive defense of parliamentarism has since, however, been critically reviewed. Scott Mainwaring and Matthew S. Shugart, for instance, argued that “presidentialism tends to function better where presidencies have weak legislative powers, parties are at least moderately disciplined, and party systems are not highly fragmented” (Juan J. Lins. Presidential or Parliamentary Democracy: Does it Make a Difference?, in The Failure of Presidential Democracy – Comparative Perspectives (Juan J. Linz & Arturo Valenzuela eds., 1994) Moreover, as both acknowledge, “switching from presidentialism to parliamentarism could exacerbate problems of governability in countries with undisciplined parties.”Ibid.
[2] See José Antônio Cheibub, Zachary Elkins & Tom Ginsburg, Latin American Presidentialism in Comparative and Historical Perspective, 89 Tex. L. Rev. 1707 (2011); Roberto Gargarella, Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution 1–299 (2013).
[3] José Antônio Cheibub, Zachary Elkins & Tom Ginsburg, supra note 2, at 1709 (2011).
[4] See Sérgio Eduardo Ferraz, A dinâmica política do Império: instabilidade, gabinetes e Câmara dos Deputados (1840-1889), 25 Rev. Sociol. Polit. 63–91 (2017).
[5] Brazilian Constitution of 1988, Temporary Constitutional Provisions Act, Art. 2.
[6] Argelina Cheibub Figueiredo & Fernando Limongi, Presidential Power, Legislative Organization, and Party Behavior in Brazil, 32 Comparative Politics 151, 151 (2000).
[7] Ibid. See also José Antônio Cheibub, Presidentialism, Parliamentarism, and Democracy 128 2007).
[8] According to Article 16: “A law altering the electoral process shall enter into force on its publication date and shall not apply to elections that occur within one year from the date it enters into force.”
[9] Constitution of 1988, Article 60, § 4º, III.
[10] Supremo Tribunal Federal, Mandado de Segurança n. 22972, Relator Min. Alexandre de Morais.
[11] Supremo Tribunal Federal, RP 94, Relator Min. Castro Nunes, 17/07/1946.
[12] I thank my colleague Rafael Mafei, Professor at the University of São Paulo, for raising this interesting debate over the possible effects of parliamentarism on the states.
[13] See David Landau, Abusive Constitutionalism, 47 U.C.D. L. Rev. 189–260 (2013).
[14] As José Antônio Cheibug sustains, “the higher instability of presidential democracies can be entirely attributed to their authoritarian legacy; it has nothing to do with their constitutional structure.” José Antônio Cheibub, Presidentialism, Parliamentarism, and Democracy 173 (2007).
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