In celebration of the first hundred days of government, on April 11, 2019, President Jair Bolsonaro signed Decree 9.759/2019, which “extinguishes and establishes guidelines, rules and limitations for members of the federal public administration.”
In practical terms, the decree dissolves federal councils and commissions in which direct participation of civil society in deliberations and decisions on Brazil’s public policies takes place. Generally connected to ministries, these mechanisms, now under attack, are part of the construction of the democratic practice since the constituent project was inaugurated in 1988.
Due to this, it seems important to answer: to what extent is this decree compatible with Brazil’s Constitution? What will be its consequences and how does it relate to the recent attacks on Brazilian democracy?
Decree nº 9579/2019: what does it mean?
On October 5, 1988, Brazil’s Constitution was promulgated. It represents a rupture with the authoritarian regime established by the 1964’s coup and the beginning of an inclusive and participatory process that paved the way for Rule of Law among us. The Brazilian republic is based on, among others, broad citizenship, human rights and political pluralism.
The decree only lists possible affected colleges and does not specify which will be terminated,. The only ones safe are collegiate boards of autarchies and foundations, the commissions of investigation and disciplinary process and the commissions for public bids.
The government does not know for sure how many committees currently exist, at the federal level. The intentions with the measure, however, are made clear in one of the arguments presented: to silence all forms of conflict, contestation and disagreement in the formulation and implementation of public policies by the federal administration. In their view, the Councils would form “lobby groups” to “push for demands that do not conform to the line of democratically elected officials.”
Allegedly, the proposal centralizes the state decision-making processes and increases the distance between public administration and citizens, in order to make public management more efficient. This shows the true conception of democracy of this government.
Debureaucratization or attack on democracy?
Moreover, the absence of well-designed criteria for the extinction and functioning of the remaining organs allows exactly what the government announced it wanted to eliminate: the rigging of the public machine.
This is not the first episode in which the Bolsonaro government abuses its legislative competence to attack Brazilian democracy. In January 2019, Hamilton Mourão, then President in charge, also extended, by decree (9,690/2019), those who were legitimized to impose secrecy on official documents. Classified by experts as a backsliding, the decree attacked basic principles of the Law on Access to Information (Law 12.527/2011), violating the publicity that should govern public administration. Efforts were made by the Parliament to suspend the effects of the legislative decree, which was eventually repealed.
Because of its manifest unconstitutionality, the decree that extinguishes civil engagement in public administration deserves the same treatment. There are already some initiatives, as projects of legislative decrees were filed, as well as lawsuits, challenging the new norm.
In terms of fundamental rights, there is no room for setbacks in the Brazilian Constitution – not even by constitutional amendment, only for advancement and improvement of institutions and social channels already implemented.
Bolsonaro’s decree contradicts the constitutional project of popular control and participation in public policies. Deliberative spaces can not be measured as or reduced to government expenditures, let alone disappear by the unilateral act of the Executive, which does not even know how many councils would be extinguished or the actual impact of the measure on public expenditure.
This is a further step on the attack against Brazil’s democracy, justified as a bureaucratic measure in favor of efficiency, but without being based on any concrete data in this sense. The councils are ways of ensuring the direct participation of citizens in deliberations on public policies that will directly affect their lives.
Currently, the literature discusses multifaceted forms of authoritarianism, which uses constitutional and legal instruments to strengthen the powers of leaders and supplant guarantees.¹ In this sense, Gábor Attila Tóth warns against the suppression of civilian entities or the tightening of the requirements connected to their functioning as an instrument capable of promoting undemocratic guidelines. ²
The possibility of dissent is what, by excellence, constitutes democratic politics. Democracy presupposes deliberation, dialogue and participation of civil society in political institutions. When legislation seeks to extinguish channels of direct participation, it is democracy that is threatened, allowing decisions to be made unilaterally by increasingly authoritarian governments.
By Almir Megali Neto,  Mariana Tormin Tanos Lopes  and Raquel Cristina Possolo Gonçalves [ 5 ]
More links (in Portuguese):
1 LANDAU, David. Abusive Constitutionalism. 47 U.C.D.L.Rev., 2013.
2 TÓTH, Gabor. The Authoritarian’s New Clothes: Tendencies Away from Constitutional Democracy. The Foundation for Law, Justice and Society.
3 Researcher at CJT/UFMG. Master’s student at UFMG. Scholar by CAPES.
4 Researcher at CJT/UFMG. Master’s student at UFMG.
5 Researcher at CJT/UFMG. Master’s student at UFMG. Scholar by CAPES.