The opposition Brazilian Social Democracy Party (PDSB) filed suit with the Supreme Court Tuesday, June 17, asking for an injunction on grounds of unconstitutionality against the Government decree issuing a new telecommunications policy (Decree 4733, dated June 10).
The PSDB claims the decree violates the General Telecommunications Act by assigning functions to Anatel not defined in the act as responsibilities of the executive branch (see Art. 18) and is altogether unconstitutional because as a form of direct rule it ?usurps the powers of the Legislative branch?.
The suit, termed a ?Direct Unconstitutionality Action? (ADIN), was prepared by Congressman Alberto Goldman (PSDB, São Paulo), rapporteur of the 1997 General Telecoms Act in the lower house.
Brazil is a democracy in which the president must obey the law like any other citizen, he says, not an empire with an absolute sovereign. ?All of us are equal before the law, including the president, and the laws that created the regulatory agencies can?t be passed over in this manner,? he argues.
The lawsuit filed by the PSDB was based on a brief by Carlos Ari Sundfeld, a leading telecoms lawyer. Mr Sundfeld in turn was retained by Telefonica for this purpose. His opinion was presented to the Communications Ministry as a critical contribution in the public consultation on the draft decree. Telefonica says the PSDB was able to use the document only because it was published on the ministry?s website.
The decree contested by the PSDB establishes a number of guidelines which the ministry regards as policy directives to be obeyed by Anatel and the telecommunications industry from now on.
