Provisional Measures: understanding the allegedly peculiar Brazilian legislative instrument
Those who like to understand the Brazilian legislative set-up will have to get used to them: Provisional Measures.
The Brazilian Executive branch legislates by proposing, without exclusivity, constitutional amendments, organic (supplementary) laws and ordinary laws. All of these must be approved by the National Congress in order to be valid. The Executive branch also rules, this time exclusively, by Provisional Measures (in Portuguese: medida provisória, or MP) and regulatory decrees, which come into force upon their enactment.
These Provisional Measures are, undoubtedly, the most exciting legal instrument the 1988 Federal Constitution offers. MPs have been, without any doubts, the most relevant and important Brazilian contemporary legislative instrument. They have enacted laws and public policies, and have issued quick legal answers when required. More than 5000 MPs were enacted from 1988 to 2001 and, after then, since a constitutional amendment changed their features, around 900 new MPs have been issued. Presidents from all sides of the political spectrum have used them as a crucial government tool, and it is truly fair to say that this pattern is constitutive of the Brazilian legal environment.
An MP is usually depicted as a legislative instrument to be used by the Executive branch for critical matters and at exceptional times, “with the force of law” upon its enactment. Their alleged uniqueness routinely draws attention from foreign audiences. More than once, scholars and legal practitioners have raised doubts about their legitimacy and have questioned their procedures and effects. Concerns are related to both their prevalence and features in the Brazilian lawmaking environment.
MPs were originally designed as a legislative prerogative of the Executive branch directly linked to critical matters and exceptional times. The very short original text of 1988 Federal Constitution stated that in case of relevance and urgency, the President of the Republic could adopt provisional measures, with the force of law, sending them immediately to the National Congress (art. 62). However, they are actually used in a much broader way: they are commonly issued as a frequent government instrument. Extremely relevant changes in a variety of areas – economic plans, public civil service changes and social programmes – have been settled by MPs in the last 30 years.
On 11 September 2001, a Constitutional Amendment changed the MP’s legal framework. Besides some substantive limits – MPs may not address matters such as nationality, political rights, political parties and election law, criminal and criminal procedural law, civil procedural law, organization of the Judicial Branch, budgetary directives, matters reserved for organic laws etc. – the procedural framework was also adapted: Parliament can amend, refute or accept MPs in a pre-defined period of time (60 plus 60 days – this renewal is, in fact, automatic). They lose their effect, ex tunc, if Parliament does not approve them within 120 days.
The Federal Constitution states that once issued, an MP shall be assessed by a joint committee of representatives and senators (JC) which issue an opinion on it, before submitting it to each House of the National Congress – first the Chamber of Deputies, then the Federal Senate. The President of the JC and the Rapporteur of each MP come from the Senate and the Chamber of Deputies, alternately. Despite the constitutional provision, the Joint Committee did not become a reality until 2009, when a Supreme Court decision reinforced it.
Amendments to MPs can be submitted by any Representative or Senator within 6 days of the MP being issued. In theory, proposed amendments must be linked to the core issue of the MP. However, the practice was quite different until 2015: extremely common amendments that were not at all related to the original text transformed the MPs into a kind of legislative fast-track, highly valued by both Executive and Legislative actors as an easy way to rapidly advance their agenda. Another Supreme Court decision from 2015 finally vetoed them. Currently these “outsider amendments” still exist, but are not as frequent as they used to be.
Finally, and probably the most recurrent question regarding MPs: what happens if an MP with force of law since its enactment is not approved or voted on in time? The Federal Constitution states that Parliament is able to rule on the events that happened under that MP within the next 60 days. In practice, however, this parliamentary ruling decree is hardly ever issued. The Constitution then states that the legal relations constituted and arising from acts performed during the period of MPs’ effectiveness shall still be regulated by them, which is what predominantly occurs in practice.
From time to time, debates regarding a new regulation on the MPs arise – usually with the alleged aim of reducing the Executive branch’s agenda-setting power. A very recent constitutional amendment (PEC 91/2019) altering the rules regarding MPs procedures was finally approved in June 2019. Though, in an unprecedented - and unexplained - event, the Constitutional Amendment was still not promulgated by the National Congress so far - which means it is still not in force.
The coming rules set specific deadlines for each phase of MPs processing, with the main aim of guaranteeing to Senators an acceptable period of time for assessing the proposal. Given the 120 days deadline, for decades MPs usually have not arrived at Senate in a timely manner to receive new amendments.
The deadline for a MP approval would still be of 120 days. However, the Joint Committee of representatives and senators (JC) would issue an opinion in 40 days; the Chamber of Deputies would then have 40 days to assess it; afterwards, the Federal Senate would have 30 more days to sets forth its assessment; finally, if the Senate amends it, the Chamber of Deputies would have more 10 days to assess the adjustments and to the final approval.
Although MPs have been depicted by some Brazilian legal scholars as an authoritarian instrument, violating constitutional values such as the separation of powers principle in a Presidential regime, more attentive readings have been able to detect cooperative patterns between the Executive and Legislative rather than the traditional idea of usurpation of powers.
In a nutshell, despite actual Presidential (ab)uses, Parliament has certain advantages in this interplay too. By receiving MPs and controlling the voting procedure ex post, congressmen can (i) shift the burden of unpopular decisions, (ii) hear alarms bells from society, (iii) negotiate with the government, and (iv) save time on technical matters. Positive and negative messages to the President are usually sent by approving or not approving an important MP.
MPs are particularly crucial in the so-called minoritarian or coalitional presidential regimes, such as the Brazilian model, where the President would virtually never be elected with a majority in Parliament. In these regimes, agenda setting and the use of the decree power authority through MPs or similar instruments is by far the most relevant tool for building and maintaining political coalitions and for strengthening governability.
It is clear, by the way, that instruments which encompass this prerogative of the Executive branch are becoming increasingly common in contemporary democracies – whether liked or not. With significant variations, one can find similarities in countries such as Italy, Spain, Chile, Peru, Equador and Argentina. The current debate on how large and discretionary US Executive Orders are, shines ultimate light on the relevance of the matter. To those who would like to understand the Brazilian legislative set-up, though, one thing is clear: it is time to get used to the MPs.
Felipe de Paula has a PhD from Leiden University and São Paulo University and is a Lawyer / FGVLaw Lecturer in Brazil.