Conflict resolution and constitutionalism: the making of the brazilian constitution of 1988



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CONFLICT RESOLUTION AND CONSTITUTIONALISM: THE MAKING OF

THE BRAZILIAN CONSTITUTION OF 1988
Keith S. Rosenn

Introduction


Brazil's historical experience with conflict resolution stands in sharp contrast to that of its Latin American neighbors. While the former Spanish colonies fought prolonged and bloody wars to achieve independence, Brazil achieved independence peacefully. This was largely the result of the unusual response of the Portuguese monarch to Napoleon's invasion of Iberia in 1807. Prince Regent João, the future King João VI, decided to move the Portuguese court to Rio de Janeiro, where it remained even after Napoleon's fall. In 1815, he declared the United Kingdom of Portugal and Brazil. Only because liberal revolutionaries in Lisbon convened a parliament in 1820 and threatened revolt did João return to Portugal, leaving behind his son Pedro as Prince Regent. In 1822, Pedro declared Brazilian independence. In no position to contest the issue, Portugal peacefully accepted the loss of its former colony in return for a small indemnity.

From 1822 until 1889, Brazil was the only country in Latin America governed by a constitutional hereditary monarchy. In 1889, a military coup d’état overthrew the monarchy, leading to a short experience with pseudo-democratic government. The era of Brazilian history known as the Old Republic (1891-1930) operated with a constitution that created the trappings of democracy, but single party machines controlled by the landed oligarchy rigged the elections. The electorate averaged less than 3% of the population, and winning candidates received more than 90% of the vote in six of eleven presidential elections, and more than 70% in the others. As Professor Erickson has observed, "For most Brazilians, therefore, the democracy of the Old Republic was only a sham."1



In 1930, the Old Republic was overthrown by another military coup d'état. From 1930 to 1945, Brazil was ruled by the dictatorial regime of Getúlio Vargas, who in turn was overthrown by a military coup d'état in 1945. The ensuing brief democratic interlude was interrupted in 1964, when President João Goulart was ousted by another military coup. Brazil was ruled by a series of military regimes from 1964 until 1985. The Brazilian electorate did not have a chance to vote directly for a president until 1989. Disregarding the sham democracy of the Old Republic, Brazil's actual experience with democratic government prior to adoption of the 1988 Constitution was limited to only 16 years of its 166 years of existence as an independent nation.

A Brief Overview of Prior Brazilian Constitutions

The 1824 Constitution


Dom Pedro convoked a constituent assembly to draft Brazil's first constitution. One of the assembly's first acts was to crown Dom Pedro I as Emperor and Perpetual Defender of Brazil. Dissatisfied with the limitations on his power in the constitutional draft, Dom Pedro forcibly dissolved the assembly and replaced it with a ten-member commission over which he personally presided. In December 1823, his commission completed a draft constitution satisfactory to Dom Pedro. After approval by the municipal councils, the Emperor promulgated the Constitution on March 25, 1824.

Brazil's first constitution has been its most enduring, lasting sixty-five years with only one amendment.2 It was modeled upon the French Constitution of 1814, establishing a hereditary Catholic monarchy headed by the Emperor. The monarchy spared Brazil the constant coups and political turmoil that characterized the early experiments of its Spanish-speaking neighbors. Abolition of slavery in 1888 led disgruntled former slave holders to support a military coup that ousted the monarchy in 1889.


The 1891 Constitution and the First Republic


The 1891 Constitution, which was heavily influenced by the U.S. Constitution, thoroughly changed Brazil's form of government. The monarchy became a democracy, the unitary state became a federation of twenty states called the United States of Brazil, and the quasi-parliamentary system became a presidential system. The states promulgated their own constitutions, elected their own governors and legislative assemblies, and organized their own systems of courts and public administration. The municipalities had virtual autonomy on subjects of particular interest to them. The 1891 Constitution was a well-written, liberal document that worked badly. Considerable political instability marked its initial period. Shortly after promulgation of the Constitution, Brazil's first elected president, Deodoro da Fonseca, staged an autogolpe, dissolving the Congress and declaring a state of siege. Twenty days later, the autogolpe fizzled. The President resigned, and his Vice-President, Floriano Peixoto, assumed the presidency. Although he promised to convoke new elections, Peixoto did not do so. The political crisis was aggravated by a financial crisis that led to many bankruptcies and a widespread series of rebellions.

The First Republic was characterized by widespread electoral fraud and monopolization of political power by the states of São Paulo and Minas Gerais. Resentment over the election returns of 1930, which replaced the incumbent Paulista president, Washington Luís, with another Paulista, Júlio Prestes, coupled with the economic crisis of the Great Depression, ultimately led to a successful military revolt.


Vargas Dictatorship and the Constitutions of 1934 and 1937


The Constitution of 1891 was a casualty of the 1930 military revolt that brought Getúlio Vargas to power. Although theoretically in force, the 1891 Constitution was modified by a series of acts of the Provisional Government, which replaced it with a new constitution in 1934.

Modeled after the Weimar Constitution of 1919 and the Spanish Constitution of 1931, Brazil's 1934 Constitution substituted social democracy for liberal democracy. It enfranchised women and introduced secret voting. For the first time, all Brazilians over the age of eighteen, regardless of sex, became eligible to vote, provided they were not illiterate, beggars, or enlisted military. Optional during the Old Republic, voting became compulsory for all eligible males and for female civil servants.

This Constitution lasted only three years. In 1937, under the pretext of putting down a Communist takeover plot, Getúlio Vargas staged an autogolpe and proclaimed a dictatorship called the New State (Estado Nôvo). Vargas replaced the 1934 Constitution with a shadow constitution, nicknamed the Polaca, because of its resemblance to the 1935 Constitution of Poland.3 The president was the supreme authority of the state. The provisions for democratic institutions and representative elections were merely window dressing. Vargas dissolved all political parties and dispensed with elections. Even though Article 187 of the 1937 Constitution required ratification by a plebiscite before entering into force, no plebiscite was ever held. Consequently, the Vargas government was actually a de facto regime. Since Congress never met, Vargas simply legislated by decree, issuing more than 8,000 decree-laws between 1937 and 1945, some of which are still in force. During the entire period that the 1937 Constitution was nominally in force, a state of emergency suspended individual rights and guarantees. The state of emergency lasted until November 30, 1945, a month after Vargas was overthrown by the military.

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