(June 4, 2012) On May 25, 2012, the Brazilian government vetoed 12 articles of the new Forestry Code, Law No. 12,651 of May 25, 2012 (Lei No. 12.651, de 25 de Maio de 2012, PLANALTO.GOV.BR).
President Dilma Rousseff's vetoes were made out of a desire to reestablish the contents of the agreement between political party leaders and the government during the drafting process for the bill in the Federal Senate; provisions reflecting this agreement had been deleted from the bill before the veto. The purpose of the government in vetoing the articles was to reject amnesty for deforestation and to prohibit agricultural and cattle raising activities in areas of permanent protection. (Ivan Richard, Código Florestal: Conheça os Vetos da Presidente Dilma Rousseff, AGÊNCIA BRASIL (May 28, 2012).)
In a Provisional Measure published in the Official Gazette on May 28, 2012 (Medida Provisória No. 571, de 25 de Maio de 2012, PLANALTO.GOV.BR, http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2012/Mpv/571.htm), the government restored to the text of the Forestry Code the principles that had been at one time incorporated in the bill during the drafting process in the Senate but later deleted during the second round of votes in the Chamber of Deputies. (Id.)
Roussef vetoed, among other provisions, article 1 of Law No. 12,651, which had been modified by the deputies after prior approval by the Senate. According to the published reasons provided for the veto, the text of that article had not precisely indicated the parameters that govern the interpretation and enforcement of the law; the Provisional Measure would correct this problem and list the applicable general principles of law. (Id.)
A highly controversial issue that arose during the discussion of the new Law had to do with article 61, which authorizes the continuity of several activities, including agriculture, cattle raising, eco-tourism, and rural tourism, in rural areas that had been “consolidated” until July 22, 2008. Article 3(IV) of Law No. 12,651 defines rural consolidated areas as areas of rural property with existing human occupation prior to July 22, 2008, that have buildings, improvements, or agricultural activities (atividades agrossilvipastoris), permitted, in the latter case, to be the adoption of a fallow system. (Lei No. 12.651, de 25 de Maio de 2012, supra.) According to the veto, “when dealing with the restoration of areas of permanent preservation in consolidated rural areas, the approved text is vague and imprecise, contrary to the public interest and causing great uncertainty as to its application.” (Mensagem de Veto: Lei No. 12.651, de 25 de Maio de 2012, PLANALTO.GOV.BR.)
Article 61 of Law No. 12,651, as approved by the Chamber of Deputies, seemed to grant a broad amnesty to those who had breached the previous Forestry Code's provisions governing permanent preservation areas before July 22, 2008, “in a disproportionate and inappropriate manner that eliminated the possibility of rebuilding a significant portion of the vegetation in those areas.” (Id.) Furthermore, by including only rules for restoration of vegetation near water courses that are up to ten meters wide and not mentioning rivers of other dimensions and other areas of permanent preservation, the law brought a great deal of uncertainty to Brazilian farmers as to what might be required of them in the future in terms of environmental recovery efforts. (Id.)
Finally, according to the text of the vetoes, the Law “did not articulate environmental parameters with social and productive criteria,” requiring instead that the levels of recovery for all rural properties, regardless of their size, be virtually identical, and thereby ignoring “the unequal agrarian reality in Brazil, where, according to the National Institute of Colonization and Agrarian Reform (Instituto Nacional de Colonização e Reforma Agrária –INCRA), 90% of farms have up to four fiscal modules and occupy only 24% of the rural area of the country.” (Id.) A fiscal module is an agrarian unit used in each municipality in Brazil, defined according to the terms of article 50, section 2, of Law No. 6,746 of December 10, 1979. (Lei No. 6.746, de 10 de Dezembro de 1979, PLANALTO.GOV.BR.)
The presidential veto can be overturned by Congress, provided the override has the support of an absolute majority of both the Senate and the Chamber of Deputies, voting by secret ballot. (Richard, supra.)
According to the Federal Constitution of Brazil, “in relevant and urgent cases, the President of the Republic may adopt provisional measures that have the force of law, which must be submitted immediately to the National Congress.” (Constituição Federal, art. 62, PLANALTO.GOV.BR (last visited May 29, 2012).)
Except as provided for in sections 11 and 12 of article 62 of the Constitution, provisional measures lose their effectiveness as of the day of their issuance if they are not converted into law within a period of 60 days, which may be extended once under the terms of section 7 of the same constitutional article, for an equal period of time (id. art. 62 § 3). The 60-day period referred to in section 3 of article 62 runs from the date of publication of the provisional measure (id. art. 62 § 4). The running of this period is suspended during the periods in which the National Congress is in recess (id.).
The deliberation of each of the Houses of the National Congress on the merits of a provisional measure is contingent upon a prior judgment as to the measure's compliance with constitutional requirements (id. art. 62 § 5).
If a provisional measure has not been considered within 45 days, counting from its publication date, the provisional measure enters into a “regime of urgency.” Subsequently, in each of the houses of the National Congress, all other legislative deliberations of the house must be suspended until the provisional measure is finally subject to a vote (id. art. 62 § 6).
The effectiveness of a provisional measure may be extended once for 60 days, if during the 60-day period counting from its publication date the measure has not been submitted to a final vote in the two houses of the National Congress (id. art. 62 § 7). Provisional measures must be voted on first in the Chamber of Deputies (id. art. 62 § 8).
Reenactment, in the same legislative session, of a provisional measure that has been rejected or that has lost its efficacy by the running of time is forbidden (id. art. 62 § 10).