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



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The Process of Adopting the 1988 Constitution

The Long Transition to Democracy


Unlike transitions from military rule in many countries, the Brazilian transition was not initiated by pressures from civil society. Instead it was initiated by the military. In 1974, President Ernesto Geisel and his Chief of Cabinet, General Golbery de Couto e Silva, started an eleven-year gradual relaxation of dictatorial measures that eventually resulted in redemocratization of the nation. Their motives for beginning the long transitional process are complex and to some extent remain enigmatic. Alfred Stepan, who conducted interviews on the subject with both Geisel and Golbery, reports that the decision to reach out to civil society for allies was in large part motivated by concern about the growing autonomy of the security apparatus in both the state and within the military itself. Because the leftist guerrilla movements had long been destroyed, the security apparatus was no longer needed and constituted a serious danger to the military as an institution.4 In 1978, at the end of Geisel's term, Congress enacted Constitutional Amendment No. 11, which revoked the institutional acts and their complementary measures to the extent they conflicted with the 1969 Constitution.5 Also in 1978, a massive strike in the auto industry in the outskirts of São Paulo signaled the beginning of a period of substantial labor unrest and dissatisfaction with government -dominated labor relations.

General João Baptista de Oliveira Figueiredo, who assumed the presidency in 1979, permitted enactment of an Amnesty Law that applied not only to members of the security forces who had committed human rights violations, but also to political prisoners and exiles.6 This double-sided amnesty law, which, unlike similar laws in Argentina and Uruguay, has never been overturned, facilitated widespread acceptance of redemocratization by the military and its most vociferous opponents. A new law on political parties permitted resumption of a much more vigorous and diverse political life. In 1980, the National Conference of Lawyers approved the Declaration of Manaus, calling for a return of the constituent power to the people. Distinguished jurists, such as Raymundo Faoro and Miguel Seabra Fagundes, began to call publicly for convocation of an assembly to draft a new constitution.7

In 1982, concerned about losing its control over constitutional amendments, the military government increased the votes required in Congress to adopt a constitutional amendment from an absolute majority to two-thirds.8 This change proved critical two years later, when the PMDB (Party of the Brazilian Democratic Movement - Partido do Movimento Democrático Brasileiro), the principal opposition party with 200 seats in the Chamber of Deputies, proposed a constitutional amendment to restore popular election of the president. All opposition parties joined in mobilizing popular support for the measure. Millions of Brazilians attended rallies and took to the streets in the principal cities to demand "Diretas-Já" (direct presidential elections now). On April 25, 1984, a majority of Congress voted for a constitutional amendment to restore direct elections, but it fell 22 votes short of the two-thirds majority needed for enactment.

At the same time it changed the rules for amending the constitution, the military government decided to change the rules for the next presidential election, which was moved forward from October 1984 to January 1985. Constitutional Amendment No. 22, which the military pushed through Congress in 1982, modified the Electoral College that indirectly selected the president. The Electoral College had been composed of the entire National Congress plus an additional group of electors selected by the state legislatures in proportion to each state's population.9 Amendment No. 22 eliminated proportional representation for the additional group of electors. Instead, each state selected six additional electors, chosen by the majority party in a winner-take-all vote.10 Nevertheless, this strategy failed to prevent the Electoral College, which met in January 1985, from ending twenty-one years of military rule by electing as president Tancredo Neves, the head of the PMDB and a principal leader of civilian opposition to military rule.

Shortly thereafter, fate seriously undermined the Brazilian redemocratization process. Tancredo Neves died shortly before assuming office. The Vice President, José Sarney, was a lackluster traditional politician from Maranhão, a backward Northeastern state. Until shortly before the 1985 election, he had been president of PDS (Social Democratic Party-Partido Democrático Social), the pro-military regime party. The PDS split, and its dissidents, including Sarney, joined the PFL (Liberal Front Party-Partido a Frente Liberal). The PFL then formed a coalition with the PMDB called the Democratic Alliance, which produced the Neves-Sarney ticket. Although many PMDB politicians wanted Ulysses Guimarães, popular leader of the PMDB, to succeed Tancredo Neves, the military insisted that Sarney be sworn in as Brazil's transitional president on March 15, 1985.11 Two months later, Congress adopted Constitutional Amendment No. 25, which not only restored direct elections for all levels of government, but also totally liberalized political party structure by legalizing Marxist parties, abolishing the requirement of party discipline, eliminating obstacles to party formation, and permitting multiparty alliances.

At this point the path of Brazilian constitutionalism reached a critical juncture. Since most of its authoritarian features had been relaxed by subsequent constitutional amendments, the 1969 Constitution could have been maintained. Alternatively, the democratic 1946 Constitution could have been restored. But Tancredo Neves had promised a new constitution, and after Neves' untimely death, Sarney determined to fulfill that promise.


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