By VINÍCIO CARRILHO MARTINEZ*

Considerations on Article 84 of the 1988 Federal Constitution

This essay is a provocative study, it does not provide an answer, it merely seeks to substantiate a question, a concern: “Does the 1988 Federal Constitution have an original defect, which is now insoluble, that threatens the entire power structure?”

The flaw would lie in the immense breadth of the powers granted in Article 84 of the 1988 Constitution, configuring the broadest powers of the President of the Republic. Let us look at the constitutional article, although long, it is an opportunity to read the Federal Constitution of 1988 Federal Constitution of 1988:

Art. 84. The President of the Republic has exclusive jurisdiction to:

I – appoint and dismiss Ministers of State;

II – exercise, with the assistance of the Ministers of State, the superior management of the federal administration;

III – initiate the legislative process, in the manner and cases provided for in this Constitution;

IV – sanction, promulgate and publish laws, as well as issue decrees and regulations for their faithful execution;

V – veto bills, in whole or in part;

VI – provide for the organization and functioning of the federal administration, in accordance with the law;

VI – provide, by decree, on: (Wording provided by Constitutional Amendment No. 32 of 2001)

(a) organization and functioning of the federal administration, when it does not imply an increase in expenditure or the creation or extinction of public bodies; (Included by Constitutional Amendment No. 32, 2001)

(b) termination of public functions or positions, when vacant; (Included by Constitutional Amendment No. 32, 2001)

VII – maintain relations with foreign States and accredit their diplomatic representatives;

VIII – enter into treaties, conventions and international acts, subject to referendum by the National Congress;

IX – declare a state of defense and a state of siege;

X – decree and execute federal intervention;

XI – send a message and government plan to the National Congress on the occasion of the opening of the legislative session, explaining the situation in the country and requesting the measures it deems necessary;

XII – grant pardons and commute sentences, with a hearing, if necessary, of the bodies established by law;

XIII – exercise supreme command of the Armed Forces, promote their general officers and appoint them to positions that are exclusive to them;

XIII – exercise supreme command of the Armed Forces, appoint the Commanders of the Navy, Army and Air Force, promote their general officers and appoint them to positions that are exclusive to them; (Wording provided by Constitutional Amendment No. 23 of 1999)

XIV – appoint, after approval by the Federal Senate, the Ministers of the Supreme Federal Court and the Superior Courts, the Governors of Territories, the Attorney General of the Republic, the president and directors of the central bank and other civil servants, when determined by law;

XV – appoint, in compliance with the provisions of art. 73, the Ministers of the Federal Court of Auditors;

XVI – appoint magistrates, in the cases provided for in this Constitution, and the Attorney General of the Union;

XVII – appoint members of the Council of the Republic, in accordance with art. 89, VII;

XVIII – convene and preside over the Council of the Republic and the National Defense Council;

XIX – declare war, in the case of foreign aggression, authorized by the National Congress or ratified by it, when occurring between legislative sessions, and, under the same conditions, decree, in whole or in part, national mobilization;

XX – to make peace, authorized or with the referendum of the National Congress;

XXI – award decorations and honorary distinctions;

XXII – allow, in cases provided for in supplementary law, foreign forces to transit through national territory or remain there temporarily;

XXIII – send to the National Congress the multi-year plan, the budget guidelines bill and the budget proposals provided for in this Constitution;

XXIV – submit, annually, to the National Congress, within sixty days after the opening of the legislative session, the accounts relating to the previous fiscal year;

XXV – to fill and extinguish federal public positions, in accordance with the law;

XXVI – issue provisional measures with the force of law, in accordance with art. 62;

XXVII – exercise other powers provided for in this Constitution.

XXVIII – propose to the National Congress the declaration of a state of public calamity of national scope provided for in articles 167-B, 167-C, 167-D, 167-E, 167-F and 167-G of this Constitution. (Included by Constitutional Amendment No. 109 of 2021)

Sole paragraph. The President of the Republic may delegate the powers mentioned in items VI, XII and XXV, first part, to the Ministers of State, the Attorney General of the Republic or the Attorney General of the Union, who shall observe the limits set forth in the respective delegations.

In article 84 we see the typical functions of the Head of State (VII, VIII, XVIII, 2nd part, XIV, XV, XVI, 1st part, XIX, XX, XXI and XXII), of the Head of Government (I, III, IV, V, IX, X, XI, XII, XIII, XIV, XVII, XVIII, first part, XXIII, XXIV and XXVII) and of the Head of Public Administration: II, VI, XVI, 2nd part and XXV (SILVA, 2003, p. 555-6). Another way, even more evident, of visualizing the prevailing confusion between State and Government is clarified in this aforementioned article 84 of the Federal Constitution of 1988.

Wouldn't it be a structural, institutional, normative-constitutional problem to mix the designations of government and State in the Constitutional Text itself, especially when we know that there are irremovable differences between the terms?

The State (perennial) and the government (transitory) are distinct institutions, with completely different designations, functions, and attributions – and even though they cannot be constitutionally distinct –, since they have different natures and magnitudes, including a relationship of subordination and constitutional hierarchy of the government to the Democratic State of Law (articles 1, 2, 3, and 4 of the Federal Constitution of 88). In this reading, article 84 of the 1988 Constitution would not have constitutional logic and would be in conflict with the scope of the Constitution – which raises the debate about the compromising condition of the Federal Constitution of 1988 (negotiated by the elites, from above).

In fact, reading article 84 also helps to advance the evidence built on the thesis of super-presidentialism, in addition to indicating how, over time, article 84 was fed by other powers, with the PECs of 1999 and 2021: the PEC of 2001 was the most generous.

Or, in another sense, this alluded distortion of superpowers would not be the problem in itself, dating back to the origin. On the contrary, would Article 84 have been described as such in the 1988 Constitution, including as an attempt at a Prussian Way? From above, with the growth of the compromising heteronomy of the 1988 Federal Constitution, to stop the reflexes and excesses coming from the political culture (“give and take). Or would it be just a reflection of this so-called Prussian Way of Brazilian politics?

As an objective fact, let us remember that the Brazilian central legislature, from Cunha to Lira, caused a 213 billion hole in the public coffers.[I], with parliamentary amendments that, in their vast majority, have no trace, no glimmer, of legality.

And, without legality, it is easy to see that the amendments also lack legitimacy, after all, there is no republican record that they have achieved any lawful objectives in their destination. It is like saying that corruption of the public treasury has become the rule, destroying any and all institutionality that could have been compromised with the Federal Constitution of 1988 itself, at least since 2016.

Arthur Lira, as we know, is the current president of the Federal Chamber of Deputies and Cunha was the driving force behind the 2016 coup d'état, when he was also appointed president of the Chamber of Deputies in 2016 (Martinez, 2019). We should also remember that the phenomenon of super-presidentialism is present within the scope of the Legislative Branch and, to stick to the example of the 2016 coup and the current threats, it is worth highlighting that moving forward with the impeachment request is a task that falls solely to the president of the Chamber of Deputies – regardless of the legislative house.

Thus, it is appropriate to ask: Is there already any comparative analysis of article 84 of the 1988 Federal Constitution – “the exclusive responsibility of the President of the Republic” – with this development of fake parliamentarism?

Would super-presidentialism (27 clauses of explicit exercise of power) have helped to create its reverse, which is this coup-like parliamentarism, or is it all solely the result of the objective conditions of Brazilian politics (the old “give and take”)? Would everything be a reflection of the eternal and reigning patriarchy, and its physiological political unfolding called populism (of the right and the left)?

Could it be that there is a combination of both situations – the CF88 with a redhibitory defect and the pernicious actions of the anti-republican central Legislature?

In this case, we would have to add the information that the 1993 plebiscite brought the option for presidentialism (and the Republic), in denial of parliamentarism (and constitutional monarchy). The votes were separate, however, the fact that the monarchy was on the agenda (against republicanism), in itself, tells us what and who required more powers at that time.

It is quite easy to analyze the tiny power that remained to the monarchy defeated in the 1993 plebiscite, except for the existence of a type of tax that still applies to the royal family (the Laudêmio tax collected in Petrópolis/RJ). Furthermore, the historical plebiscite only reinforces the illustration that national politics has very few enlightened resources.

That is, atavism, patriarchy, and the authoritarian rancor that regularly flirts with fascism (reactionism, fanaticism, sectarianism) are rampant in the corridors of the national Legislature, especially in the Chamber of Deputies. This Chamber was once called “The People’s House.”

So, if this House still expresses the Brazilian people, wouldn't this loot against the public treasury be in line with the current/permanent form of corruption in popular political culture?

It is not unreasonable to think that this seems to be an insurmountable dilemma, especially if we observe the current objective and immoral conditions that make up the Brazilian central Legislature – a model that is replicated in States and municipalities.

*Vinicio Carrilho Martinez He is a professor at the Department of Education at UFSCar. Author, among other books, of Bolsonarism. Some political-legal and psychosocial aspects (APGIQ). [https://amzn.to/4aBmwH6]

References

MARTINEZ, Vinicius Carrilho. Theories of the State - Unconstitutional Dictatorship: 2016 coup d'état, State-form, Typologies of the State of Exception, nomology of the unconstitutional dictatorship. Curitiba, Editora CRV, 2019.

SILVA, José Afonso da. Course on positive constitutional law. 21st ed. New York: Routledge, 2003.

Note

[I] This is just an initial, summarized mathematical measure of the damage caused to the State and the Brazilian People, who could benefit from these resources if they were applied to education and public health, universities and the development of Science: https://noticias.uol.com.br/colunas/a-hora/2024/08/25/de-cunha-a-arthur-lira-emendas-crescem-11-vezes-e-consomem-r-213-bi.htm.

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