Brazil’s Prosecutor-General advises that Central Bank autonomy law is technically unconstitutional

RIO DE JANEIRO, BRAZIL – In his report to the Federal Supreme Court (STF), on Tuesday, April 27th, the Federal Prosecutor-General (PGR) Augusto Aras refrained from discussing the substance of whether or not the Central Bank should be autonomous.

Rather, submitting a brief as part of a lawsuit filed by opposition political parties PT and PSOL, the PGR called on the Court (STF) to recognize the technical unconstitutionality of the law that established the Central Bank’s autonomy.

Aras pointed out that the rule passed by Congress and sanctioned by President Jair Bolsonaro originated from a bill that was first introduced in Congress, by a member thereof (“parliamentary initiative”). In the opinion of the PGR, the statute granting autonomy to the Central Bank is encompassed by Art. 61, Para. 1 of the Constitution as one of exclusively “executive initiative”.

Article 61 Paragraph 1 provides: “it is the exclusive initiative of the President of the Republic to introduce laws” on “the creation of public offices, functions or positions in the direct administration and in autonomous Government agencies….”

The controversy is the subject of an ADI (direct action of unconstitutionality) filed with the Supreme Court by the PT and PSOL. The reporting Justice is Ricardo Lewandowski.

Aiming to shield the institution from political interference and to create fixed mandates, the bill that granted autonomy to the Central Bank was proposed by Senator Plínio Valério (PSDB-AM). The matter was passed in November 2020.

The text was put to vote in the Chamber of Deputies in February this year, and was then sanctioned by Bolsonaro. The rule disconnected the Central Bank from the Ministry of Economy.

Aras’s opinion is that there was a formal defect in the processing of the bill. After being passed in the Senate, when the text reached the Chamber of Deputies, another “executive initiative” bill that was already in progress in the Chamber was attached to it.

After the two separate bills were analyzed by the deputies, the Chamber approved the Senate bill and sent it to the President for sanction. The text of the Planalto Palace’s bill, on the other hand, was rejected.

The PGR points out that the unconstitutionality does not lie in the fact of consolidation, nor in the fact that the bills have received amendments and substitute texts in Parliament, but in the original introduction (proposal) of the bill that eventually became Complementary Law 179/2021.

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