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Document Type

Article

Publication Date

2018

Publication Title

Revista de Investigações Constitucionais

Abstract

In 1865, British constitutional theorist Walter Bagehot memorably explained that the success of British government lay in “the efficient secret” of its Constitution, which mandates “the nearly complete fusion” of the Government and a strong, programmatic, and productive Parliament. By this yardstick, it is not a terrible exaggeration to say that the Brazilian Constitution of 1988 harbors a very inefficient secret: a weak legislature, widely accused of opportunism and corruption coupled with a diffuse, weak party system that results in ad hoc, temporary, pork-driven legislative coalitions, and a president with ample powers and responsibility for public administrative outcomes.

For the better part of a half-century, generations of scholars of Brazilian politics have debated whether this unique arrangement is a good thing. After the constitution of 1988, massive hyperinflation and weak, untested institutions led a first generation of scholars to pessimism. A second generation — buoyed by robust growth under Fernando Henrique Cardoso and Lula — spoke of the “unexpected success” of Brazil’s coalitional presidential regime. Today, with the massive Lava Jato investigation exposing the system’s rotten foundations, the mood has swung back to gloom.

This paper argues that said debate is one-sided, because it typically omits the critical role played in this system by the judiciary — courts and prosecutors. If Lava Jato has taught us anything, it is, first, just how deep corruption ran in “making the system work” and, second, how essential is the role of the judiciary in mediating ordinary politics. In this light, I argue that Brazil’s “inefficient secret” is its combination of a weak party system and a judicialized politics. The former virtually guarantees that non-programmatic tools like pork will continue to be the mortar binding legislative majorities together, and that Congress will lack the energy to act against the President, the crucial actor creating legislative majorities and moving them to action. On the other hand, in light of Congress’ weakness, political oversight requires the conspicuous and public participation of the judiciary. Not limited to just Lava Jato, the judiciary’s political role is so developed that it is essential in shaping party balance, and even the content of policy. In this political context, it is the clash of judicial norms (probity, publicity, and transparency) with a legislative process built under precisely the opposite expectations (compromise, quid pro quo, pork) that is truly unmanageable.

There is no doubt that Lava Jato fatigue has already set in among most Brazilians, and the pace of arrests will slow as the system approaches something like normalcy. Still, the built-up furor does not seem to have been channeled into institutional reforms that will remedy the system’s problems. Proposed party and electoral reforms are unlikely to completely rationalize Brazil’s political parties; legislative majorities are likely to remain ad hoc and pork-based; and even the instauration of a prime minister, should that reform eventually pass (unlikely given the weakness of Temer, an interim president), is unlikely to staunch the need for judicial interventions to police system functioning. As a result, fits and starts are likely to characterize Brazil’s politics for years to come.

Keywords

Coalitional Presidentialism, Brazilian Politics, Lava Jato

Publication Citation

Andrea Scoseria Katz, Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 3, p. 77-102, set./dez. 2018

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