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



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39  Kenneth P. Serbin, The Catholic Church, Religious Pluralism, and Democracy in Brazil, in DEMOCRATIC BRAZIL: ACTORS, INSTITUTIONS, AND PROCESSES 144, 150-151 (Peter R. Kingstone & Timothy J. Power eds., Pittsburgh: Univ. Pittsburgh Press, 2000) [hereafter DEMOCRATIC BRAZIL].

40  See David Driesen, Brazil's Transition to Democracy: Agrarian Reform and the New Constitution, 8 WIS. INT'L L. J. 51, 66-81 (1989).

41  The Systematization Committee was supposed to have 89 members, made up of all the presidents and rapporteurs of the committees and all the rapporteurs of the subcommittees, plus 49 members of the Assembly chosen in proportion to party representation. Actually, the Committee ended up having 93 members to ensure the presence of at least one member of each party. Lucas Coelho, supra note 25, at 44.

42  Cabral was assisted by three sub-rapporteurs, José Fragaça (PMDB), Adolfo de Oliveira (PL), and Antonio Carlos Konder Reis (PDS), all of whom were members of the Systematization Committee. Konder Reis had been the 1967 Constitution's rapporteur.

43  In his report accompanying Cabral Zero, the rapporteur explained that some of the incongruities and excesses in the draft resulted from ideological conflicts within the committees and subcommittees, as well as the tendencies of the Assembly members to introduce into the text "constitutional rules that turn its nature into a stew by dealing with subjects that fit better into ordinary legislation." Cited in Josaphat Marino, Uma Perspectiva da Nova Constituição Brasileira, 2 CADERNOS DE DIREITO CONSTITUCIONAL E CIÊNCIA POLÍTICA 131 (Jan./Mar. 1993).

44  This account is largely drawn from J. MARTÍNEZ-LARA, supra note 12, at 109-110.

45  The Centrão was made up of 152 delegates, 80 drawn from the PFL, 43 from the PMDB, 19 from the PDS, 6 from the PTB, 3 from the PDC and from the PL. DIAP, QUEM FOI QUEM NA CONSTITUINTE NAS QUESTÕES DE INTERESSE DOS TRABALHADORES (São Paulo: Cortez/Obaré), cited in Maria D'alva Gil Kinzo, O Quadro Partidário e a Constituinte, in DE GEISEL A COLLOR: O BALANÇO DA TRANSIÇÃO 105, 134, n.10 (Bolívar Lamounier organ. São Paulo: Editora Sumaré Ltda. 1990) [hereafter DE GEISEL A COLLOR].

46  For an explanation of the eclectic nature of the PMDB and why it had great difficulty in taking coherent policy positions, see Frances Hagopian, The Compromised Consolidation: The Political Class in the Brazilian Transition, in ISSUES IN DEMOCRATIC CONSOLIDATION: THE NEW SOUTH AMERICAN DEMOCRACIES IN COMPARATIVE PERSPECTIVE 243, 265-271 (Scott Mainwaring, Guillermo O'Donnell & J. Samuel Valenzuela eds., Notre Dame: Univ. of Notre Dame Press, 1992).

47  BARRY AMES, supra note 15, at 28.

48  Carlos Alberto Marques Novaes, Dinâmica Institucional de Representação, 38 NOVOS ESTUDOS CEBRAP 99, 115, 117 (Mar. 1994).

49  J. MARTÍNEZ-LARA, supra note 12, at 116-117.

50  For an analysis of party voting patterns and coalitions on key votes on Drafts A and B, see Maria D'alva Gil Kinzo, O Quadro Partidário e a Constituente, in DE GEISEL A COLLOR, supra note 45, at 117-132.

51  The jeito is a commonly used device for bending legal norms to expediency. See Keith S. Rosenn, Brazil's Legal Culture: The Jeito Revisited, 1 FLA. INT'L L. J. 1-43 (1984).

52  Lydia Medeiros, "Constituição 15 Anos," O Globo, Oct. 5, 2003. At the time, Nelson Jobim was a PMDB leader in the Constituent Assembly.

53  Gilse Guedes, "Passarinho admite que inclui artigo não votado na Constituição," Estado de São Paulo, Oct. 9, 2003, online at http://www.estadao.com.br/agestado/noticias/2003/out/09/2.htm. Passarinho, former Minister of Education and Social Security under the military governments, added a measure that eliminated a disparity in treatment for the military with respect to salary benefits.

54  Thélio Magalhães, "OAB recebe pedido de impeachment de Jobim," O Estado de São Paulo, Nov. 8, 2003, online at http://www.estadao.com.br/agestado/noticias/2003/nov/08/4.htm.

55  Eduardo Kattah, "Jobim nega inclusão de artigos não-votadas na Constituição," O Estado de São Paulo, Nov. 10, 2003, online at http://www.estadao.com.br/agestado/noticias/2003/nov/10/201.htm.

56  A study by an agency of the Justice Ministry found that the Constitution expressly required 256 complementary laws and implicitly required another 87. PAULO GOMES PIMENTEL JÚNIOR, CONSTITUIÇÃO & INEFICÁCIA SOCIAL 42 (Curitiba: Juruá Editora, 2003). Not surprisingly, Congress has failed to comply with many of these constitutional directives and deadlines. Even today, a substantial amount of implementing or regulatory legislation has yet to be enacted. For the unregulated constitutional provisions, see http://www.camara.gov.br/internet/infdoc/html/leginfra/ LeginfraNao.htm and http://www.camara.gov.br/internet/infdoc/html/ leginfra/LeginfraTra.htm.

Thousands of existing laws were implicitly revoked or require modification to conform to the new Constitution. Many still remain unmodified, leaving some areas of the law legally confused.



57  The argument that a provisional constitution is a useful technique for brokering the transition from military to civilian rule is made elegantly by Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L. J. 2009, 2057-2063 (1997).

58  Transitional Constitutional Provisions Act, art. 2.

59  The reason for Bueno's amendment was that the first governmental decree after proclamation of the Old Republic in 1889 had promised, but never delivered, a plebiscite on whether Brazil should have a monarchy or a republican form of government. J. MARTINEZ-LARA, supra note 12, at 144-45.

60  Luís Roberto Barroso, Dez Anos da Constituição de 1988 (Foi bom pra você também), in 1988-1998: UMA DECADA DE CONSTITUIÇÃO 37, 51 (Margarida Maria Lacombe Camargo org., Rio: Renovar, 1999); CÁRMEN LÚCIA ANTUNES ROCHA, REPÚBLICA E FEDERAÇÃO NO BRASIL: TRAÇOS CONSTITUCIONAIS DA ORGANIZAÇÃO POLÍTICA BRASILEIRA 84 (Belo Horizonte: Del Rey, 1997).

61  Sanford Levinson, Law as Literature, 60 TEX. L. REV. 373, 376 (1982).

62  ALBERT O. HIRSCHMAN, JOURNEYS TOWARDS PROGRESS: STUDIES OF ECONOMIC POLICY-MAKING IN LATIN AMERICA 222 (N.Y.: Twentieth Century Fund, 1963).

63  In 1985, the annual inflation rate was 235 percent. Although falling to 65 percent in 1986 as a result of the ill-fated Cruzado Plan, it rose to 416 percent the following year. By 1989, inflation had climbed to 1,783 percent. By March of 1990, when Collor de Mello assumed the presidency, the inflation rate was running at 84 percent per month. Between 1990 and 1994, the annual inflation rate averaged nearly 1,400 percent.

64  Peter Kingstone, Muddling through Gridlock: Economic Policy Performance, Business Responses, and Democratic Sustainability, in DEMOCRATIC BRAZIL, supra note 39, at 185, 191.

65  The only provisions that may not be amended are the federal system of government; direct, secret, universal, and periodic suffrage; separation of powers; and the individual rights and guaranties. Art. 60.

66  The Emergency Fund created by the First Revision Amendment lasted only until 1996. A second constitutional amendment, No. 10 of March 4, 1996, extended the Fund until June 30, 1997, and a third amendment, No. 17 of November 22, 1997, extended it until December 31, 1999.

67  The most recent was Amendment No. 42 of December 19, 2003, which extended the tax until December 31, 2007.

68  Amendment No. 42 of Dec. 19, 2003, art. 2, reamending art. 76 of the Transitional Constitutional Provisions Act.

69  Amendments 20 of 1998 and 41 of 2003 made sweeping reforms in social security for both the public and private sectors. Amendments 1 of 1992 and 25 of 2000 imposed limits on compensation for state and local legislators. Amendment 19 of 1998 imposed salary ceilings and eliminated lavish benefits for civil servants, eliminated tenure for those who have not passed competitive exams, and permits firing of tenured civil servants. Amendments 5-9 of 1995, Amendment 13 of 1996, and Amendment 36 of 2002 eliminated a number of obstacles to foreign investment and opened up several government monopolies.

70  Timothy J. Power, Political Institutions in Democratic Brazil: Politics as a Permanent Constitutional Convention, in DEMOCRATIC BRAZIL, supra note 39, at 17, 34.

71  The Supreme Court has held that the issue of whether a provisional measure is actually "urgent and relevant" is a nonjusticiable political question. ADIn 1.397-DF, Diário de Justiça of June 27, 1997.

Article 246 of the Constitution, added by Constitutional Amendments 6 to 9 of 1995, banned the use of provisional measures to regulate constitutional amendments promulgated after January 1, 1995. Amendment No. 32 of September 11, 2001, which substantially restricted the president's powers to issue provisional measures, modified Article 246 to restore presidential power to regulate future constitutional amendments by decree.



72  The only limitation that the Supreme Court placed upon the power to reissue provisional measures was that the president may not reissue a measure that Congress has specifically rejected. Ação Direta de Inconstitucionalidade No. 293, 146 R.T.J. 707 (Tribunal Pleno, June 6, 1990). As of September 11, 2001, when the Executive's power to issue and reissue provisional measures was curbed by constitutional amendment, Brazilian presidents had issued 619 original provisional measures and 5,491 reissuances. During this entire period, only 22 provisional measures were rejected by Congress, while 473 were enacted into law. The rest were either revoked, became ineffective, or were merged into measures. See http://www.planalto.gov.br.

73  Provisional measures may no longer be issued on certain matters, such as nationality, citizenship, political parties and rights, electoral law, criminal and procedural law, and budgets. To avoid another Plano Collor, no provisional measure may be used to seize or sequester any property or financial assets. Provisional measures are now valid for 60 instead of 30 days, and may be extended only once for another 60 days. If rejected or invalid because of the passage of time, provisional measures may not be reissued in the same legislative session. A provisional measure that has lapsed is no longer void ab initio. Any legal relations constituted under it are to be regulated by legislative decree. If no such decree is issued within sixty days after lapse, legal relations constituted under the provisional measure remain in effect and are governed by it. Between September 11, 2001, and October 26, 2007, Brazilian presidents have issued an additional 399 provisional measures. Of these, 17 are still awaiting Congressional approval, 3 were revoked by another provisional measure, and 35 were rejected by Congress; the rest were converted into law.

74  The Constitution expanded standing to bring the direct action of unconstitutionality to include the President, Executive Committees of either house of Congress, state governors, the Federal Council of the Bar Association, any political party represented in Congress, and any national labor or business organization. Amendment No. 45 of 2004 expanded the category of persons with standing to bring a direct action of unconstitutionality to include the Federal District’s Legislature, its Executive Committee, and its Governor.

75  See Maria Tereza Sadek & Rosângela Batista Cavalcanti, The New Brazilian Public Prosecution: An Agent of Accountability, in DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA 201, 207 (Scott Mainwaring & Christopher Welna eds., Oxford, N.Y.: Oxford Univ. Press, 2003).

76  A striking result of the 1988 Constitution has been a phenomenal increase in the caseloads of the Brazilian courts. In the first eight years following promulgation of the Constitution, the number of cases filed in Brazilian courts increased more than ten-fold, from about 350,000 cases in 1988 to more than 3.7 million in 1996. The Supreme Court has been particularly overburdened; the number of cases it decided mushroomed from 17,432 in 1989 to 109,692 in 2001. Not all these cases involve constitutional questions, but Brazilians are increasingly resorting to litigation because of the enormous expansion in both substantive constitutional rights and procedural mechanisms to protect those rights.

7777 WILLIAM C. PRILLAMAN, THE JUDICIARY AND DEMOCRATIC DECAY IN LATIN AMERICA: DECLINING CONFIDENCE IN THE RULE OF LAW 8, 6 (Westport: Praeger Publishers, 2000).


78  Alfred Stepan, Brazil's Decentralized Federalism: Bringing Government Closer to the Citizens?, 129 DAEDALUS 145, 153-153 (No. 2, 2000).

79  Brazil has universal suffrage, with the exception of foreigners and military conscripts. Illiterates have been enfranchised since 1985, and the 1988 Constitution enfranchised those between the ages of 16 and 18. Voting is compulsory for those between the ages of 18 and 70, and optional for those over 70 or less than 18. Free and relatively honest elections are held regularly.

80  Alfred Stepan, supra note 78 , 149-150, 157.

81  "Probably no country in the world currently is as anti-party, both in theory and practice, as is Brazil." GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 95 (New York: N.Y.U. Press, 2d ed. 1996).

82  BARRY AMES, supra note 15, at 41-43.

83  The Army, Navy, and Air Force are declared to be permanent national institutions and military intervention is permitted to protect law and order at the request of any of the constitutional powers. Art. 142. Military service is obligatory in terms of the law. Art. 143. The rights and prerogatives of members of the military are amply protected. Art. 42.

84  Compare the normalization view presented in Wendy Hunter, Assessing Civil-Military Relations in Postauthoritarian Brazil, in DEMOCRATIC BRAZIL, supra note 39, at 101, 106-107 with the much more critical view of military power and prerogatives in JORGE ZAVERUCHA, FRÁGIL DEMOCRACIA, supra note 11, at 35-56.

85  See OMAR G. ENCARNACIÓN, THE MYTH OF CIVIL SOCIETY: SOCIAL CAPITAL AND DEMOCRATIC CONSOLIDATION IN SPAIN AND BRAZIL 146-147 (New York: Palgrave Macmillan 2003).

86 Augusto Zimmermann, Constitutional Rights in Brazil: A Legal Fiction?, 14 MURDOCH UNIV. E LAW JOURNAL 28, 31-55 (No. 2, 2007).


87 Anmendment 45 of December 8, 2004, took a step in this direction by requiring a showing that constitutional questions presented in an extraordinary appeal have “general repercussions” in order for the Supreme Court to hear the appeal.


88  Perhaps a caveat should be made for the rant of Leonel Brizola, a leftist former governor of Rio de Janeiro, who was quoted in the Jornal do Brasil of May 18, 1995, as saying "if there is no civil reaction [against privatizations], there will be a military one." The next day O Globo published an article with the headline "Cardoso Criticizes Brizola for Defending a Military Coup." Cited in Richard Gunther, P. Nikiforos Diamandourous & Hans-Jürgen Puhle, O'Donnell's "Illusions": A Rejoinder, in THE GLOBAL DIVERGENCE OF DEMOCRACIES 131, 139, n. 6 (Larry Diamond & Marc F. Plattner eds., Baltimore/London: Johns Hopkins Univ. Press, 2001).

89  LUÍS ROBERTO BARROSO, TEMAS DE DIREITO CONSTITUCIONAL 10 (Rio: Renovar, vol. I, 2001).

90  SEYMOUR MARTIN LIPSET, THE FIRST NEW NATION: THE UNITED STATES IN HISTORICAL AND COMPARATIVE PERSPECTIVE 52 (Garden City, N.Y.: Doubleday, 1967).
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