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

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The Military

One of the pacts in the long transition from military to civilian rule was that no effort be made to try members of the military for human rights offenses committed during the period of authoritarian rule. The Assembly constitutionalized this pact in Transitional Article 8, which confers a broad amnesty for all acts motivated solely by political reasons between 1946 and 1988. Some interests of the military, including its right to intervene in matters of national security, including law and order, continue to be amply protected in the 1988 Constitution.83 President Cardoso, however, pushed through Amendment No. 23 of September 2, 1999, which replaced the three military ministries and the joint chiefs of staff with the unified civilian-led Ministry of Defense. This Amendment explicitly gives the President the power to appoint the commanders of the Army, Navy and Air Force and makes them subject to the Congressional impeachment process. Top military leaders are now subject to criminal trials before the Supreme Court, and habeas corpus petitions against military orders may now be heard by the civilian courts. The number of ministries controlled by the military has dropped from six to none. Even though civilian control over the military has increased dramatically in recent years, the military still enjoy numerous privileges and special treatment in Brazil.84


The process by which the Brazilian Constitution of 1988 was adopted practically assured that the end product would be a hodgepodge of inconsistent and convoluted provisions. The decisions to designate the incoming Congress as the Constituent Assembly, to proceed without a draft, to entrust the initial drafting to all members of the Assembly divided into 24 thematic subcommittees, and to invite as much participation by civil society as possible, made it virtually impossible to produce a coherent document, particularly with a weak party system and a weak president. The Assembly’s quixotic position that no topic was too trivial to be included on its agenda made the constitution-making process nearly unmanageable and wasted a large amount of time. The widespread belief that the new Constitution would serve as a panacea for all Brazil's ills and the intense lobbying by popular groups made it difficult for the drafters to distinguish clearly between what belongs in a constitution and what belongs in ordinary legislation or in no legislation. The intense lobbying and manner in which delegates were selected made it difficult to resist efforts to embed in the constitutional text a plethora of political and economic entitlements without consideration of affordability. Nor did the Assembly adequately assess the risk of ungovernability that might result from its foolish decisions to lock in future generations by creating constitutional straitjackets.

Given the circumstances under which the Assembly proceeded, the decision to make the Constitution transitional and revisit it in five years was defensible. Although badly needed, the contemplated top-to-bottom revision scheduled for 1993 never materialized. Instead, Congress has promulgated a constant stream of amendments. Some have made insignificant changes or have contributed additional entitlements and complications, but others have eliminated or modified some of the ill-considered constitutional obstacles to governability and economic development. Many significant obstacles remain, and many proposed amendments are in the pipeline.

The 1988 Constitution does little to come to grips with the major political, economic and social problems confronting Brazil. Brazil's political institutions are still relatively weak, and the proliferation of undisciplined political parties in Congress makes governance a major problem. Brazil has long had one of the most unequal patterns of income distribution in the world. The new Constitution has not improved this pattern; if anything, it has exacerbated it.

The return of democracy and the adoption of the 1988 Constitution has not appreciably reduced conflict in Brazil. In many ways, conflict has been exacerbated. Brazil has been unable to deal effectively with the social problems resulting from lack of an effective agrarian reform. Landless peasants continue to invade privately owned farms, frequently provoking violent responses from rural landowners and the police. The formal legal system has done little to protect rural workers, lawyers, and Indians from violence stemming from land conflicts. Brazil also has significant problems with uncontrolled urban violence, some of which is attributable to arbitrary actions by the civil and military police, some of which is attributable to a malfunctioning criminal justice system, and some of which is attributable to the inability or unwillingness of the police and prison officials to control common criminals and drug traffickers. The wave of crime and violence afflicting Brazil has created a general climate of personal insecurity and a general mistrust of the legal system.85

Until 1994, many conflicts were shifted into the redistributive arena produced by galloping inflation. Since 1995, the Plano Real has virtually eliminated this cruel tax that fell most heavily on the poor. Yet Brazil needs to find permanent solutions to its perennial fiscal crisis. In the past few years, important constitutional amendments have been adopted to facilitate dismantling Brazil’s bloated governmental bureaucracy, to rationalize the compensation and social security benefits of public employees, to control state and municipal expenditures and indebtedness, and to reform the Judiciary. The Brazilian Constitution impressively protects virtually all fundamental and human rights. Traditional first generation rights, such as life, liberty, property, due process, free speech, equal protection, religious freedom, and freedom of association are fully protected. Second generation rights, such as the right to work, right to strike, maternity and paternity leave, housing, clothing, food, health, leisure, social security, and education are also guaranteed, along with third generation rights such as an ecologically balanced environment, self-determination, and cultural preservation. Amendment 45 of December 8, 2004, added what might be termed a fourth generation right: “Everyone is assured that judicial and administrative proceedings will end within a reasonable time and the means to guarantee that they will be handled speedily.” Unfortunately, many of these guarantees exist only on paper. Some very important guarantees are regularly violated with impunity, as a recent article by Augusto Zimmerman so vividly demonstrates.86 Many important individual rights created by the Constitution need strong enforcement to make them a reality. But the police and other law enforcement officers function precariously, and the judiciary, which under normal conditions moves slowly, is swamped with cases. In 2005, the Supreme Court received 95,212 cases and decided 103,700 cases. Constitutional Amendment No. 45, adopted at the end of 2004, enables the Supreme Court to create binding precedents, provided they deal with constitutional issues and are adopted by two-thirds vote. Thus far, this has done little to reduce the huge volume of cases. As of October 2007, the Supreme Court has adopted only three binding precedents pursuant to this Amendment. The Supreme Court urgently needs a device like certiorari to allow it to decide only the cases presenting novel and important national issues.87

On the positive side, Brazil's Constitution has provided a peaceful way of resolving many important conflicts. Rather than resort to a coup, Brazilians removed Collor de Mello, their first popularly elected president in three decades, by following the impeachment procedures prescribed in the Constitution. Elections are held regularly, peacefully, competently and without claims of fraud. The electorate is one of the broadest in the world. All of the mechanisms of representative democracy, as well as those of direct democracy, such as the initiative, plebiscite, and referendum, are in place, even though not much used. Political and fiscal power is substantially less concentrated in the federal executive and in the federal government by the strengthening of the powers of the states and local government, as well as the powers of the federal judiciary and legislature.

No longer do Brazilians talk of a coup d’état a way to resolve political problems.88 No threats were made by the military in 1999, when a constitutional amendment created the Ministry of Defense and formally subordinated the military to civilian control. Nor were any threats by the military or other organized groups made when Luis Inácio Lula da Silva, the first popularly elected leftist labor leader, assumed the presidency in January 2003.

Despite its many technical defects, the Constitution has enormous symbolic value. As Professor Luís Roberto Barroso has pointed out, the Constitution symbolizes the culmination of the process of the restoration of a democracy under a rule of law and the superseding of authoritarian system characterized by intolerance, monopolization of power and violence.89

Unfortunately, the new Constitution has been more a hindrance than a help to working out democratic solutions to Brazil’s most pressing economic and social problems. Ultimately, the legitimacy of the constitutional system has to survive a pragmatic test: Does it provide a substantial economic payoff for a substantial portion of its citizens?90 Thus far, the answer has been negative. If persistent tinkering does not significantly change the answer, one can expect another round of constitution-making from Brazil.

1 Kenneth P. Erickson, Brazil: Corporative Authoritarianism, Democratization, and Dependency, in LATIN AMERICAN POLITICS AND DEVELOPMENT 160, 169 (Howard J. Wiarda & Harvey F. Kline eds., Boulder, Col.: Westview Press, 2d ed., 1985).

2  The amendment was Law No. 16 of Aug. 12, 1834, called the Additional Act, which reduced the number of regents from three to one, abolished the Council of State, outlawed entailing of estates, and replaced the General Councils with legislative assemblies with powers to regulate local affairs. Four other laws arguably had the effect of constitutional amendments: Law No. 1 of Oct. 1828 (creating municipal assemblies); Law 12 of Oct. 1832 (ordering the provincial electors to confer upon the chamber of deputies powers to reform certain constitutional articles); Law No. 105 of May 12, 1840 (interpreting certain articles in the prior constitutional reform); and Law No. 234 of Nov. 23, 1841 (reestablishing the Council of State).

3 The 1937 Constitution was called the polaca because the Polish Constitution of 1935 declared: "The sole and individual authority of the State is concentrated in the person of the President of the Republic." (Art. 2) Another reason was that in the argot of Rio de Janeiro, polaca meant any foreign prostitute. Walter Costa Porto, A Constituição de 1937, in AS CONSTITUIÇÕES BRASILEIRAS: ANÁLISE HISTÓRICA E PROPOSTAS DE MUDANÇA 43, 50 (Luiz Felipe D'Ávila ed. São Paulo: Editora Brasiliense, 1993).

4  ALFRED STEPAN, RETHINKING MILITARY POLITICS: BRAZIL AND THE SOUTHERN CONE 30-44 (Princeton: Princeton Univ. Press 1988). Scott Mainwaring offers a four factor explanation: (1) need for greater legitimacy, (2) tensions between the military as government and as an institution, (3) the success of the military in subjugating its opponents, and (4) economic success. The Transition to Democracy in Brazil, 28 J. INTER-AM. STUD. & WORLD AFF. 149, 151-154 (Spring 1986).

5  The legal effects of acts based upon the Institutional Acts were maintained and excluded from judicial review. Constitutional Amendment No. 11 of Oct. 13, 1978, art. 3.

6  Law No. 6.683 of Aug. 28, 1979.

7  Luís Roberto Barroso, Dez Anos da Constituição de 1988 (Foi bom pra você também), in 1988-1998: UMA DECADA DE CONSTITUIÇÃO 37, 40 (Margarida Maria Lacombe Camargo org., Rio: Renovar, 1999).

8  Constitutional Amendment No. 22 of June 29, 1982. The military government had reduced the voting requirement to an absolute majority of both houses of Congress by Constitutional Amendment No. 11 of Oct. 13, 1978. The military's numerous manipulations of Brazil's electoral system is recounted in David Fleischer, Manipulações Casuísticas do Sistema Eleitoral durante o Período Militar, ou Como Usualmente o Feitiço Se Voltava contra o Feiticeiro, in 21 ANOS DE REGIME MILITAR : BALANÇOS E PERSPECTIVAS 154-197 (Gláucio Soares & Maria Celina D'Araujo orgs., Rio de Janeiro: Fundação Getúlio Vargas, 1994).

9  Each state legislature selected three electors plus an additional elector for each one million inhabitants. Each state could choose at least four electors. Constitutional Amendment No. 8 of Apr. 14, 1977.

10  State legislatures elected 138 out of the total of 686 electors in the Electoral College. The military government expected that even if it lost its majority in the Chamber of Deputies, it would keep its majority in the Senate and maintain a majority in the Electoral College by winning a majority of the state legislatures. David Fleischer, Constitutional and Electoral Engineering in Brazil: A Double-Edged Sword, 37 INTER-AM. ECON. AFF. 3, 29 (Spring 1984).

This system was blatantly unfair to the most populous states. São Paulo, with more than 25 million inhabitants, elected only 60 members of the Chamber of Deputies, while eight states, with a combined population of about 10 million, each elected 8 members. Each deputy from São Paulo represented 417,345 voters, while each deputy from Acre represented only 37,701 voters. See Superior Electoral Tribunal Resol. No. 11.355 of July 1, 1982. This egregious malapportionment was compounded by giving each state the right to elect the same number of additional members to the Electoral College.

11  Guimarães later explained that the only reason he did not dispute Sarney for the right to succeed Neves was because he was forced to follow the instructions of his "jurist," General Leônidas Pires Gonçalves (Army Minister in Sarney's cabinet), who insisted that Sarney assume the presidency. JORGE ZAVERUCHA, FRÁGIL DEMOCRACIA: COLLOR, ITAMAR, FHC E OS MILTARES (1990-1998) 38-39 (Rio de Janeiro: Civilização Brasileira 2000) [hereafter FRÁGIL DEMOCRACIA].

12  A number of groups, including the Brazilian Bar Association, the National Conference of Brazilian Bishops, the Brazilian Press Association, the Worker's Party, and the United Worker's Congress organized a movement to pressure Congress into calling a popular election for delegates to the Constituent Assembly under a new system of rules that would eliminate the disproportionate representation embodied in the existing electoral legislation. Their efforts were unsuccessful. JAVIER MARTÍNEZ-LARA, BUILDING DEMOCRACY IN BRAZIL: THE POLITICS OF CONSTITUTIONAL CHANGE, 1985-95, 58-59 (London, N.Y.: St. Martin's Press, 1996).

13  Constitutional Amendment No. 26 of November 27, 1985.

14  JAVIER MARTÍNEZ-LARA, supra note 12, at 57; David Fleischer, The Constituent Assembly and the Transformation Strategy: Attempts to Shift Political Power from the Presidency to Congress, in THE POLITICAL ECONOMY OF BRAZIL: PUBLIC POLICIES IN AN ERA OF TRANSITION 210, 221 (Lawrence Graham & Robert H. Wilson eds., Austin: Univ. of Texas Press, 1990). This was publicly confirmed (although later denied) by Fernando Henrique Cardoso. After his denial, the reporter published the tape of Cardoso's confirmation in the May 21, 1990 issue of the Folha de São Paulo. See Jorge Zaverucha, "The 1988 Constitution and its Authoritarian Legacy: Formalizing Democracy while Gutting its Essence," paper presented at the meeting of the Latin American Studies Association, Guadalajara, Mexico, April 17-19, 1997, pp. 6-7.

15  BARRY AMES, THE DEADLOCK OF DEMOCRACY IN BRAZIL 54-55 (Ann Arbor: Univ. of Michigan Press, 2001).

16  Decree-Law No. 1.543 of Apr. 14, 1977 provided that one-third of each state's federal senators be elected by an Electoral College composed of the members of the State and Municipal Legislatures. With a mandate of eight years, the term of these so-called "bionic" senators did not expire until 1990. At the Assembly's second session, the PT (Workers' Party- Partido dos Trabalhadores) challenged the right of these senators to participate in the Constituent Assembly. By a vote of 394 to 126, the Constituent Assembly decided to permit the 23 senators to participate and to vote.

17  A decision of the Superior Electoral Tribunal of Sept. 10, 1985, prohibited media interviews with the candidates during the three months prior to the election, making it very difficult to organize debates on the subject of the new constitution. The decision also prohibited party leaders who were not candidates from appearing on television and limited candidates' TV appearances to states where they were running for office. Maria do Carmo Campello de Souza, The Brazilian "New Republic": Under the "Sword of Damocles", in DEMOCRATIZING BRAZIL: PROBLEMS OF TRANSITION AND CONSOLIDATION 351, 374 (Alfred Stepan ed. New York/Oxford: Oxford Univ. Press, 1989) [hereafter DEMOCRATIZING BRAZIL].

18  BARRY AMES, supra note 15, at 273.

19  The history of the ill-fated Cruzado Plan is recounted in Hugo Presgrave de A. Faria, Macroeconomic Policymaking in a Crisis Environment: Brazil's Cruzado Plan and Beyond, in BRAZIL'S ECONOMIC AND POLITICAL FUTURE 42-59 (Julian Chacel, Pamela Falk & David Fleischer eds., Boulder, London: Westview Press, 1988) and Werner Baer & Paul Beckerman, The Decline and Fall of Brazil's Cruzado, 24 LAT. AM. RES. REV. 35-64 (No. 1, 1989).

20  See Maria do Carmo Campello de Souza, supra note 17, at 362, 373. In large part due to the strategic concealment of the disastrous results of the Cruzado Plan until after the 1986 election, the PMDB managed to elect 260 deputies and 36 senators. Adding the 7 senators it elected in 1982, the PMDB had a majority of 303 out of the 559 members to the Constituent Assembly. By August 30, 1988, party shifts caused the PMDB's representation in the Constituent Assembly to fall to 235 members.

21  Thomas Jefferson took a contrary view, maintaining that the people should rewrite the constitution every generation because otherwise there would be too little citizen participation in governmental affairs. GEOFFREY STONE, LOUIS SEIDMAN, CASS SUNSTEIN & MARK TUSHNET, CONSTITUTIONAL LAW 73 (Gaithersberg, New York: Aspen Law & Business, 4th ed., 2001).

22  BARRY AMES, supra note 15, at 28; Leonardo Avritzer, The Conflict between Civil and Political Society in Postauthoritarian Brazil: An Analysis of the Impeachment of Fernando Color de Mello, in CORRUPTION AND POLITICAL REFORM IN BRAZIL: THE IMPACT OF COLLOR'S IMPEACHMENT 119, 133 (Keith S. Rosenn & Richard Downes eds., Coral Gables, Fl.: Univ. Miami North-South Ctr. Press, 1999).

23  David V. Fleischer, Perfil Sócio-Econômico e Político da Constituinte, in O PROCESSO CONSTITUINTE 1987-1988, 29, 31 (Milton Guran ed., Brasília: AGIL, 1988).

24  JAVIER MARTÍNEZ-LARA, supra note 12, at 93-94.

25  Lucas Coelho, O Processo Constituinte, in O PROCESSO CONSTITUINTE 1987-1988, 41,43 (Milton Guran ed., Brasília: AGIL, 1988).

26  CONSTITUIÇÃO FEDERAL ANTEPROJETO DA COMISSÃO AFONSO ARINOS (Rio de Janeiro: Forense 1987). The committee included prominent businessmen, social scientists, and labor leaders, but jurists constituted the majority. Bolívar Lamounier, Brazil: Toward Parliamentarism?, in THE FAILURE OF PRESIDENTIAL DEMOCRACY 253,274 (Juan J. Linz & Arturo Valenzuela eds., Baltimore, London: Johns Hopkins Univ. Press, 1994). For an acerbic critique of the Arinos Committee's draft constitution, see NEY PRADO, OS NOTÁVEIS ERROS DOS NOTÁVEIS DA COMISSÃO PROVISÓRIA DE ESTUDOS CONSTITUCIONAIS (Rio: Forense 1987).

27  ABDO I. BAAKLINI, THE BRAZILIAN LEGISLATURE AND POLITICAL SYSTEM 164 (Westport, Ct. & London: Greenwood Press, 1992).

28  See AUGUSTO ZIMMERMANN, CURSO DE DIREITO CONSTITUCIONAL 182 (Rio de Janeiro: Editora Lumen Juris, 2002).

29  The rapporteurs drafted the initial proposals, screened amendments, integrated approved amendments into the text, and later integrated the final reports of the subcommittees into a single text.

30  Shortly before the vote on the leadership positions, PFL leaders threatened a boycott as a protest against Covas' stacking the leadership with liberal PMDB members, which they deemed a breach of an informal agreement that they had reached with Covas' predecessor, Luis Henrique. They ultimately backed down after receiving no support from the other parties. JAVIER MARTÍNEZ-LARA, supra note 12, at 98.

31  Id. at 107-108.

32  For details about the project and insights into the popular suggestions, see A CONSTITUIÇÃO DESEJADA; SAIC: as 72.719 sugestões enviadas pelos cidadãos brasileiros a Assembléia Nacional Constituinte (Stéphane Monclaire coord., Senado Federal: Centro Gráfico, 2 vols., 1991).

33  ABDO I. BAAKLINI, supra note 27, at 172.

34  Lombardo, "A Constituição: Resultado de 613 dias de trabalho," Gazeta Mercantil, Oct. 6, 1988, at 1; Jornal do Brasil, Sept. 3, 1988, 1st Caderno, at 4.

35  Maria D'Alva G. Kinzo, Transitions: Brazil, in DEMOCRACY IN LATIN AMERICA: (RE)CONSTRUCTING POLITICAL SOCIETY 19, 31 (Manuel Antonio Garretón M. & Edward Newman eds., Tokyo, N.Y., Paris: United Nations Univ. Press, 2001).

36  Margaret E. Keck, The New Unionism in the Brazilian Transition, in DEMOCRATIZING BRAZIL, supra note 17, at 252, 284.

37  Gary M. Reich, The 1988 Constitution a Decade Later: Ugly Compromises Reconsidered, 40 J. INTER-AM. STUD. & WORLD AFF. 5, 15 (Winter 1998).

38  JUAN J. LINZ & ALFRED STEPAN, PROBLEMS OF DEMOCRATIC TRANSITION AND CONSOLIDATION: SOUTHERN EUROPE, SOUTH AMERICA, AND POST-COMMUNIST EUROPE 169 (Baltimore/London: Johns Hopkins Univ. Press, 1996). For additional assessments of military domination of the Constituent Assembly, see WOLGRAN JUNQUEIRA FERREIRA, COMENTÁRIOS À CONSTITUIÇÃO DE 1988, vol. 1, pp. 63-65 (Campinas/São Paulo: Julex Livros Ltda., 1989); ALFRED STEPAN, RETHINKING MILITARY POLITICS: BRAZIL AND THE SOUTHERN CONE 112-114 (Princeton: Princeton Univ. Press, 1988); and Jorge Zaverucha, supra note 14.
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