Where are the Other Gatekeepers in Comparative Constitutional Law? An Example from Brazil

Juliano Zaiden Benvindo

University of Brasília

Casey’s and Kenny’s The Gatekeepers: Executive Lawyers and the Executive Power in Comparative Constitutional Law provides a fascinating discussion of possibly one of the most unexplored topics in comparative constitutional law when it comes to checks and balances and the functioning of the executive power. The several variables associated with how executive legal advisors behave when it comes to constraining or empowering the executive are brilliantly discussed in their article by comparing four jurisdictions: the United States, Canada, Ireland, and the United Kingdom. Those countries share the common law tradition and English as their language, but they have very interesting singularities that make such a comparison a powerful benchmark even for countries whose legal cultures are quite distinct from those four. Their text delves deeply into key controversies of such a growing legal advisory role in many subjects, from major questions of institutional design to the impact of their advice on public policies. 

There are important variables of institutional design and legal culture in such four countries, implying, in the end, whether and how those executive advisors may work as either a “legalistic brake” or a “constitutional accelerator” (p. 32). Small tweaks in legislation and in the structure where they operate can create strong incentives for diverse types of behavior, and particularly transparency seems to play a relevant role in a constitutional democracy. It is a small-N comparative study that could be classified as  following the “most similar cases principle”, but which, nevertheless, offers a myriad of analytical standards that could well be explored for very distinct cases of constitutional democracies.

Following Casey’s and Kenny’s suggestion that “more work is needed on similar mechanisms in other legal systems and traditions” (p. 32), this review will just point out some features of a country that differs quite substantially from those four. The focus will be on Brazil, whose legal tradition is not common law, its language is not English, and its system of government is not a parliamentary democracy, but a presidential one (like the United States, the only one with such a configuration in Casey’s and Kenny’s paper). Moreover, it may represent the “Global South” counterexample since those other four are typical wealthy and well-established democracies of the “Global North”, even though this well-worn binary classification says far less than it aims to. 

As a Latin American country, Brazil’s system of government is, for some, depicted as a case of “hyper-presidentialism” given the expanded powers presidents wield in comparison to other forms of presidentialism worldwide. In truth, however, such powers have growingly proven less robust over the years and what prevails is a sort of “coalition presidentialism” whereby presidents must share powers with very broad coalitions amid the fragmented and multi-party political framework. Brazil also features a strong constitutional court, the decisions of which have largely impacted the political realm. In this scenario, there seems to co-exist two contrasting expectations of the Executive: on the one hand, the civil law tradition may point to its more legalistic and technocratic behavior; on the other hand, in such potentially conflicting relationships with other branches (a fragmented Congress and a strong constitutional court), the effective exercise of the executive authority demands a more pragmatic, strategic and political conduct. It is thus an attractive scenario for understanding the role of executive lawyers, who need to balance such contrasting expectations in their actions. 

Executive lawyers in Brazil, at the federal level, are members of the so-called The Advocacy-General of the Union (AGU), which represents the federal government judicially and extrajudicially and is the advisory board of the executive power (Art. 131 of the 1988 Constitution). It is staffed by highly qualified lawyers selected after rigorous entrance exams, whose tenure is guaranteed after a three-year probation (Art. 37, II, of the 1988 Constitution). It is a big institution, composed of approximately 5000 lawyers. The head of AGU, however, is “freely appointed by the President of the Republic from among citizens over thirty-five years of age, of notable juridical learning and spotless reputation” (Art. 103 of the 1988 Constitution), which means that he or she need not come from AGU’s career structure and, unlike other AGU’s members, can be fired by the president at any time. The incentives for a more politically oriented behavior rather than a legalistic and technocratic one by the head of AGU are thus visible in such a configuration. The whole structure of AGU and the very premise that AGU is an institution of the state and not of the government, nevertheless, have historically raised some barriers to a politically-oriented lawyering for the incumbent. More recently, during President Jair Bolsonaro’s term, though, the AGU, in distinct opportunities, used its structure for particular political purposes, such as challenging Brazil’s well-regarded electoral system or providing legal assistance to Bolsonaro’s former secretary in defense of criminal charges. 

 The acts undertaken by AGU, both judicially and extrajudicially, are normally public, transparent, and can be easily accessed by the public. AGU members normally follow legal, judicial and administrative precedents, and, in principle, enjoy some autonomy in their interpretation of legal matters. Despite that, there is a clear hierarchy among its members: AGU members are all subordinated to the head of AGU, who, in turn, is subordinated to the president, so their autonomy is rather curtailed by the chain of command. As an institution that is intimately connected to the bureaucracy, the AGU deals constantly with this dilemma of being an institution of the state bureaucracy or a subordinate of governmental interests. Historically, it has behaved more independently and governments have mostly understood the AGU’s role as a legal advisor and defender of the executive, whose interpretation of the law should be regarded as an opinion to be taken seriously. However, as recent events demonstrate, once a would-be autocrat like Jair Bolsonaro takes office, the line that once prevented the AGU’s from turning into an institution of the government instead of functioning as an institution of the state becomes easily blurred. 

Besides the AGU, there is another important institution that works even closer to the president in legal matters: the Subchefia para Assuntos Jurídicos (SAJ), a division of the General-Secretary of the Presidency of the Republic. The SAJ provides legal advice and counseling for every branch of the presidency and vice-presidency. Unlike the AGU, its members are not necessarily selected among public servants who passed rigorous exams and are tenured after probation, but, rather, are politically appointed. It is more directly involved in the very structure of the government; its office is located at the Palácio do Planalto (the presidential palace) and its acts are less regulated and publicized than those of AGU. It is a much smaller structure, composed of roughly twenty lawyers and interns, whose main role is basically to interpret legal provisions whenever there is no orientation by the AGU, provide advice on legal matters to the president and vice-president, examine the legality of executive acts, review and proofread presidential acts, write opinions on the constitutionality of presidential acts, among others (Dec. Lei n. 11.114/2022).

There is almost no literature in Brazil on the impacts of SAJ on the executive power, and none comes close to the thorough analysis Casey and Kenny bring for those four countries. Even for AGU, which has a much bigger structure, the debate is usually limited to its role as an institution of the state or an institution of the government. There is practically no comparison with other jurisdictions, even with those in Latin America. What is more, there is basically no analysis of how their design and practices may impact on the behavior of the executive power in the definition of public policies, its relationship with the Supreme Court, or whether it constrains or empower the executive as a “Machiavellian counsellor” or pushes it to “[speak] law to power” (p. 32). The debate over transparency seems more advanced since most of their acts can be accessed through various channels. Still, there are nuances here: formal expectations of access to information are just the tip of the iceberg, and, at least to my knowledge, no study so far has provided empirical evidence of how it influences the government in the various ways Casey and Kenny brilliantly discuss in their paper.

Casey and Kenny spotted a fantastic gap in comparative constitutional law, which is quite striking given the relevance of this debate. They could begin to fill it by stressing how such variables apply to those four jurisdictions. There is still, however, a long way to go to fill it in a more overarching dimension, and, as it could be briefly shown from the Brazilian case, the work is just at the beginning. The suggestions for Brazil and somehow also for Latin American countries may lie exactly in discussions of the executive legal advisors’ impacts on the nature of their countries’ presidentialism (in comparison to parliamentarian jurisdictions), on the executive’s relationship with their Supreme Courts or on the legalistic or political behavior of the executive legal advisors under the tenets of civil law (in comparison to common law), for instance. Casey and Kenny certainly provided a roadmap for such a debate over the gatekeepers in other jurisdictions. It is time for us, constitutional scholars and political scientists especially, to wake up to such a challenge. 

Juliano Zaiden Benvindo is Associate Professor of Constitutional Law and Head of the Center for Comparative Constitutional Studies, University of Brasília, Brazil

Suggested citation: Juliano Zaiden Benvindo, ‘Where are the Other Gatekeepers in Comparative Constitutional Law? An Example from Brazil’ IACL-AIDC Blog (16 February 2023) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/16/where-are-the-other-gatekeepers-in-comparative-constitutional-law-an-example-from-brazil.