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UNCLAS SECTION 01 OF 02 BRASILIA 001681 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV BR
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 
summary. 
 
¶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 
¶19. 
 
¶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. 
 
Comment 
- - - - 
 
¶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. 
 
KUBISKE