Sending Montesquieu over the board: the case of non-conformity to the constitutional precepts of independence among the powers of the republic

• Autor(a) principal: Pinheiro, Ivan Antônio
• Data de Publicação: 2011
• Outros Autores: Vieira, Luciano José Martins, Motta, Paulo Cesar Delayti
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista de Administração Pública
• Texto Completo: https://periodicos.fgv.br/rap/article/view/7057
• topic: Montesquieu; usurpation of powers; Executive; Legislative; Judiciary.; Montesquieu; usurpação de poder; Executivo; Legislativo; Judiciário.

The division among the legislative, executive and judicial functions, as well as among the activities necessary to administrate the State in an environment of res publica, known as division of powers, with mutual tasks but not exclusively to each one, is an old lesson left by Montesquieu. In the Brazilian case, although the 1988 FC is considered as being the Citizenship Constitution, it presents problems of origin, being the fact of having adopted a presidential form of government but having attributed to the Congress competences appertaining to parliamentary systems the major one. Such a design, per se full of contradictions, allied to the tradition and the weight of the civil vis-à-vis the uses and costumes law and, although being a Federate State, results in an excessive amount of competences in the Union’s hands. Having in sight these vices and contradictions, this paper discusses, based on a bibliographic research and secondary data, how the interdependency among the three Powers resulted in an out of control process of usurping the attributions and competences one from the other. Thus, a basic tableau is presented establishing the main points of Montesquieu’s postulations and how these aspects are present in the tripartite model of government, namely presidentialism, highlighting the peculiarities of the Brazilian context, emphasizing some important institutional aspects of the national political system: multipartidarism in a bicameral federal system; the great number of parties; the difficulty of, as the result of a popular consultation, a single party getting a majority in both parliamentary houses; functional-physiological parliamentary alliances; and the parties national character. Afterwards, some examples are discussed on how the Executive usurps the legislative power via Provisional Measures which end up clogging the Legislative agenda, although the Constitutional text postulates that the usage of this instrument be only in cases of urgency and of relevance; how the Judiciary also ends up legislating because of the Parliament’s omission in important matters; and as how the Judiciary not only press the Executive to establish and implement action strategies, as well as assumes actions that are of its original competency. The scenario, as it can be perceived, is quite complex; in this environment, the interferences of a Power upon the dominions of another are much more consequence than original fact. This impact heavily upon the formulation and implementation of public policies, as has been shown by the divulgence about what is happening in the areas of health and the execution of the liberty restricting penalties in prisons. The tripartite model postulates the equilibrium among the powers, with neither concentrating nor having an absolute separation among them, which is not being the case nowadays in the country.