The problem in Brazil is that we have a presidential regime where the president doesn't have the power to dissolve Congress, and that's a good thing, but at the same time, in order to govern the president needs a coalition. While on the one hand we are practically certain that a president will never emerge from the electoral process with a legislative majority, on the other hand we know that there are ways for any president who is elected to form such a legislative majority. He invites certain parties to take part in the government, giving them ministerial seats, at the same time as the legislature and the group of parties that are part of the government take a pro-government stance within the legislature.
Many of these positions are freely appointed by the President of the Republic, so this is also a powerful instrument for the president, because he has the power to appoint people nominated by his government base to occupy these command, advisory and day-to-day positions. This allows the president to have a more or less stable parliamentary base which will allow the public policies that were promised during the campaign to actually be approved. The president is strong, but he has to put together a coalition, which is difficult to arrange because we have a very multifaceted Congress.
Many parties, parties with a very disparate base, many regional representations, the states elect relevant caucuses. As in any presidential system, there is a division of functions and responsibilities between the two branches of government, which means that a large part of the functions overlap. With this, we guarantee oversight of both powers.
Both the Executive and Legislative branches can claim to be legitimate representatives of the people and both are, even if sometimes they don't have convergent compositions. A more left-wing president and a more right-wing Congress can exist at the same time. When the president forms a coalition, he is no longer deciding on policies alone.
And that improves the quality of policies from the point of view that more people are represented in those policies. If we look back, I think this is a model that has worked very well for Brazil. Even despite its impasses, this model has achieved a lot.
Brazil has changed a lot in the last 20, 30, 40 years, since the Constitution. And before this period, we had another democratic regime between 1946 and 1964, and in 1964 the coup took place. The 1946 Constitution established a type of political system that Sérgio Abranches would later call coalition presidentialism when he wrote his famous article 'Coalition presidentialism'.
The same type of federalism present in 1946 was somehow reproduced in 1988. In 1988, one of the constituents' objectives was to strengthen the legislature again, which had lost a large part of its powers during the authoritarian regime. But they intended to give autonomy back to the legislature without, however, preventing the Presidency of the Republic from being able to take action or create policies quickly and efficiently.
I believe that, in part, it was an attempt to correct that presidentialism with a weak president, from 1946, which made the president someone with very little capability to coordinate the actions of a support group in Congress. Of course, nobody wanted a dictatorial president, but there was something became more functional regarding this ability to lead the process, to define how it would proceed. And one of the important elements of the crisis that led to the 1964 coup was the paralysis in Congress.
Although the 1988 Constitution opted for continuity in Brazil's macro institutional design, there were a series of minor changes that were important in changing the conditions of governability. The president was equipped with instruments that were inherited from the authoritarian system that came before it. Roughly speaking, we can summarize these three main characteristics: the ability to dispose of and execute the budget, legislate via provisional measures and freely appoint and dismiss a series of positions in the direct or indirect public administration.
Another very important power is the power of veto. Not that the veto didn't exist in the 1946-1964 period. The Executive used to say "I agree or I don't agree" with what came from the Legislative branch, including the budget.
Now, the Executive has the power to partially veto the law. This set of legislative powers of the esecutive branch allows it to influence the legislative agenda. The Constitution, as it establishes all these characteristics, federalism, bicameralism, House and Senate, separation of powers, proportional representation that will lead to multi-party politics, all of this creates this environment conducive to the need of consensus in order to produce decisions.
Another characteristic of the 1988 Constitution is that it was a profoundly social-democratic Constitution in the sense that this expression had in the 1980s, that is, linked to the European welfare states, which were very concerned with guaranteeing substantive rights. Coming from an authoritarian experience that didn't guarantee social rights and coming from a very conflictive economic experience it was decided to incorporate a wide range of issues that normally didn't enter or didn't enter in such detail in constitutions. So, issues such as details of the structure of education and health.
And as it contains many public policies, there will be parts of the Constitution, precisely the public policies, which need to be constantly updated. The important thing to remember is that this is a response to the authoritarian experience, which did not prioritize this social agenda. The constituent process was a very participatory and plural process that prioritized constitutionalizing these guarantees.
On the one hand, if a public policy isprotected, which is usually the intention of those who constitutionalized it, it becomes more difficult to change, the change will have to go through a broad negotiation, a broad consensus. Again, there are advantages and disadvantages. On the one hand, you bring more people into the conversation, you can't run over things.
On the other hand, some decisions can become more costly, situations that are not transformed at the desirable speed. It's very common for the Constitution to contain a right and then say "which will be regulated by law". If that law isn't passed, that right practically doesn't exist.
So there are a series of constitutionally guaranteed rights, but they are not necessarily legally guaranteed. This has greatly inflated the judiciary, which is par excellence the power of discretion in conflicts over these rights. This means that the judiciary will have a strong power, in this case the Supreme Court, to determine, after all, if the laws that Congress approves and the president sanctions are or are not in accordance with the Constitution.
And if they are not, suspend them. Sometimes it can also do the opposite. If the Executive isn't doing something, Congress hasn't passed a law, it can show that there is some element of the Constitution that isn't being complied with.
So the Brazilian constitutional court does practically everything. It judges constitutional premises and judges people, something very rare in constitutional courts. So it sometimes affects politics not only in terms of the more structural issues of the laws and norms that will apply and decides on them in the abstract in a universal way, but it also decides on concrete political actors: will so-and-so go to jail or not?
Will it force a certain compensation to be paid or not? All of this is based on a doctrine of the division of powers which is itself based on the premise that divided powers are less likely to produce autocracy. In theory, as Rui Barbosa used to say, the power to err last lies with the Supreme Court in Brazil.
But in practice, it's not so simple. And that's how it is in Brazil and the world in general. In a way, this already contradicts a little, it already leads to the conclusion that this power to decide last will always be ambiguous, it will always be problematic.
