Brazil’s latest constitution guarantees
local government significant autonomy
By Guy Burton and Andrew Stevens

24 April 2005: Brazil is a federal republic consisting of 26 states and a federal district. The country also has almost 5,000 self-governing municipalities. The federal level consists of separated executive, legislative and judicial institutions, akin to the US model. The most recent manifestation of Brazil’s political organisation is derived from its 1988 constitution, which was drafted after the country’s return to democracy from military rule in 1985. It guarantees the independence of Brazil’s state and local levels of government.

The federal level
The military governed Brazil in alliance with the civilian economic and social elite between 1964 and 1985. In contrast to other bureaucratic authoritarian regimes in the region, Brazil’s rulers maintained elections but reorganised the party system by reducing their total number to two: a pro-regime party and another which acted as a magnet to dissidents.

A process of transition was begun in the 1970s, during which the party system was opened up in 1982 and direct elections for state governors and mayors allowed. An economic crisis in the 1980s coincided with a demand to wider democracy with a demand for direct elections in 1984. In 1985 the military handed over power to a civilian government, albeit following an indirect election in which a compromise candidate was chosen: Tancredo Neves. However, Neves died before he could assume office, his position being taken by his vice-president, José Sarney, who had been a member of the pro-military party in Congress during the dictatorship.

The first direct presidential election in 1989 saw the young, charismatic, neo-liberal populist and former governor of small Alagoas state, Fernando Collor de Mello, beat the Workers’ Party (PT) leader, Luis Ignacio ‘Lula’ da Silva for the presidency in a second round run-off. He was soon embroiled in a campaign finance scandal leading to his impeachment. He resigned in 1992, being replaced by his vice-president, Itamar Franco, a regional politician from the state of Minas Gerais. Franco appointed the prominent sociologist and social democrat, Fernando Henrique Cardoso, to serve as his finance minister. In 1993 Mr Cardoso launched his Real Plan, replacing the discredited old currency and fixing its value to the dollar. Inflation – which had become a fact of Brazilian life – was cut dramatically, delivering him the presidency to against Lula in 1994. After re-writing the constitution to enable a sitting president to run for re-election, he again beat Lula in 1998. At the most recent presidential election in 2002, Lula, the perennial candidate, finally won. In part his victory was derived from a softening of his and the party’s anti-neoliberal stance, including a vice-presidential candidate from the right-wing Liberal Party, acceptance of an IMF accord agreed by the previous government and a statement directed at the markets.

Brazil’s Congress is bicameral, the Senate containing 81 members (3 from each state) and 513 in the Chamber of Deputies. At the last elections in 2002 19 parties were represented, with seven of them having a representation of over 5 per cent. Members serve for a period of four years, the elections for which take place at the same time as those for the president. Elections are open-list with the constituency consisting of the state as a whole. Unlike the US, the allocation of deputies by state is not determined by population or electorate; the smallest state, Roraima with a population of 120,000 has eight deputies, while the largest state, São Paulo, with a population of 22 million, is limited to 70. This arrangement over-represents the less developed, less populated and more traditionally conservative north of the country against the more industrialised south. Congress remains highly fragmented between different political parties, the most prominent being the Workers Party (PT) on the left, the centre-left Brazilian Social Democrat Party (PSDB) and its allies, the centre-right Liberal Front Party (PFL) and the centrist Brazilian Democracy Movement Party (PMDB). The next set of elections will take place in 2006.

Brazil’s judicial system is one of the most autonomous of its kind in Latin America. Structurally the system is virtually independent of the executive, with the exception of the Federal Supreme Court whose judges are appointed by the president. There are five parallel court systems in operation, including state-organised civil and criminal courts, federal courts relating to federal and constitutional law, electoral courts, military courts and labour courts. There are three levels of jurisdiction prior to the Supreme Court: the local, regional and superior.

The sub-national level – States and Municipalities
The 1988 constitution guarantees the independence of Brazil’s state and municipal levels of government. This victory of the local over the centre reflects historic tensions dating back to the nineteenth century during which the centre and regions chafed against each other.

Brazil’s states maintain a separation between executive and legislature. Each of the 27 governors must achieve more than 50 per cent of the vote, including a second round run-off between the top two candidates if necessary. In contrast to the federal level, state legislatures are unicameral, although the deputies are elected through similar means, involving an open-list system in which the state serves as one constituency. State level elections occur at the same time as those to the president and Congress. In 2002 candidates from eight different parties won the gubernatorial contest while 28 parties are represented in the country’s state legislatures. The next set of elections will take place in 2006.

Government in Brazil’s nearly 5,000 municipalities is structured in a similar way to the state level, with a separation maintained between the executive in the form of a mayor, and the unicameral legislative city council. Elections for mayor also require a victor with more than 50 per cent of the vote, with the exception of cities with less than 200,000 inhabitants. In contrast to the federal and state level, local elections are held in the second year between presidential, congressional and state elections.

The most recent set of local elections took place in October 2004. The PT and PSDB emerged as the most prominent victors of the election, the former with nearly 370 mayors and the latter gaining more than 800. The PMDB achieved the most number of mayoral victories with nearly 1000, although this was primarily in smaller cities and less so in the state capitals. The most prominent contests saw the PSDB’s former presidential candidate, José Serra defeat the PT incumbent Marta Suplicy in São Paulo, the PFL’s Cesar Maia win re-election in Rio de Janeiro and the PT win in nine state capitals, including the country’s third largest city, Belo Horizonte. The next set of local elections will take place in 2008.

The 1988 constitution provides states with a wide remit of powers, including exclusive control of policing and the criminal justice system while sharing responsibility for health, education, economic development and infrastructure with the federal level. Municipal government must share all these responsibilities with the federal and state authorities with the exception of transport, its only exclusive public policy responsibility. However, municipal government is often identified with having primary responsibility in some fields, most notably in pre-school education and produce urban development plans where the population is greater than 200,000.

Both state and municipal governments depend on federal transfers. However, states have an advantage over the municipal level by having their own sources of revenue, the main one being a value-added tax (ICMS), which charged at the point of production and set by the states themselves up to a constitutional limit. The amount of ICMS revenue varies from state to state, with the richest, São Paulo, producing most of its tax revenue from it, while poorer states depend more on federal transfers. Brazil’s cities similarly experience a variation in funding fortunes: with the exception of the country’s 50 largest cities, including São Paulo, Rio de Janeiro, Belo Horizonte, Salvador and Porto Alegre, which have both the population and economic activity to raise a large proportion of their own revenue, municipal governments are heavily reliant on federal and state transfers. The main sources of municipal funding besides ICMS transfers include a tax on industrial production, vehicle and rural property taxes and occasional discretionary grants. In contrast to some other Latin American states (most notably Chile), municipal governments may also borrow from commercial banks on a short term basis.

The relative lack of clear separation of powers between states and municipalities and the disparity in financial resources has created a range of problems. This includes a lack of co-ordination between different authorities, regional inequalities and disparities and endemic financial irresponsibility by states. The latter issue was of particular concern, not least because of the successive governors’ and mayors’ tendencies to inflate bureaucracies and increase debts and expecting the federal government to pick up the bill. The situation is exacerbated by federal legislators’ relative lack of loyalty to the centre; indeed, the prevailing political ambition of most federal Brazilian politicians, most of whom see election to the federal legislature in Brasilia as a stepping stone to where the real power and action is: as governor of their home state or mayor of its capital.

Consequently, during the 1990s a power struggle developed between the centre and the states, as the federal executive sought both to create a more level playing field both by asserting its position in particular areas and establish a clear link between sub-national authorities’ responsibilities and fiscal control. To create a level playing field the federal executive prioritised certain policies, most notably education. A national curriculum and national evaluation agency was established alongside a new funding system, FUNDEF, which would guarantee a minimum for education spending throughout the country, ironing out inequalities between richer and poorer states and cities. A knock on effect of such programmes was to reduce the amount of discretionary transfers to the state and local levels, by forcing the money to be spent in a particular way. To address the limitations of the 1988 constitution, the Cardoso government passed the Fiscal Responsibility Law in 2000. The law required state and municipal authorities to publish revenue and spending accounts, restrict deficits and budget allocations and made public officials legally liable for any infractions.