An Analysis of the Federal Intervention in Rio
For the first time since the re-democratization (1), the President determined a Federal Intervention in Brazil.
The intervention in the State of Rio de Janeiro on February 16, 2018 seeks to put an end to the serious situation of violence in the region. The role to be played by the Federal Government is to be limited to public security actions and has December 31, 2018 as a deadline. The President appointed General of Army and former military attaché in the Brazilian Embassy in Washington DC Walter Souza Braga Netto as the head of the intervention.
The intervention is effective immediately but must be submitted to Congress within 24 hours for approval.
Effects of the Intervention on the Pension Reform
According to article 60, paragraph 1 of the Brazilian Constitution, the Magna Carta shall not be amended during federal intervention. This provision has generated debate and concern for the government. The Pension Reform is the number one item of the government agenda and it requires amending the Constitution.
The first reaction to appear in the media has been to assert that the Pension Reform may not be approved as long as the Federal Intervention is in place.
It is however important to separate the bill to amend the Constitution from the constitutional amendment itself.
The bill is the text submitted to both legislative houses. The amendment is the final text approved by the houses in two voting shifts each, by 3/5 of their members and jointly enacted by the House and the Senate.
As enacting the amendment is the final step of the legislative procedure, only this may be understood as in fact amending the Constitution. Anything before that is tentative of amendment.
The Constitution prohibits the enactment of the final text approved by congressmen, not discussing and voting proposals, moving forward with the legislative procedure.
Note that another paragraph (4) of the same article 60 of the Constitution lists situations when not even a bill to amend the Constitution may be discussed or voted in Congress – and Federal Intervention is not there.
On another note, the government has considered suspending the Intervention when the Pension Reform is mature enough to be approved – in our view, this would only be necessary for enacting the Amendment.
Although the Constitution does not provide for temporary suspension of the Federal Intervention, based on a 1935 precedent in which the state of siege was suspended for the approval of three pieces of legislation it is reasonable to assume that such suspension would be considered legal.
In brief, the Pension Reform legislative process may move forward during the Federal Intervention up to its final approval. In order for the House and the Senate to enact the Constitutional Amendment, the President must suspend or put an end to the Intervention.
(1) 1988 Constitution