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



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The Utilization of Congress as a Constituent Assembly


In 1985, Brazil made a critical decision that seriously undermined the democratic character of the constitution-making process. Instead of popularly electing delegates to a constituent assembly, an idea that had substantial popular support,12 President Sarney proposed and Congress adopted a constitutional amendment empowering the next Congress (elected on November 15, 1986) to double as the constituent assembly.13 That Congress serve as the constituent assembly appears to have been a condition secretly imposed by the military high command on the theory that the Congress would be more responsive to military demands than a specially elected constituent assembly.14 While many countries have successfully used their legislatures as constituent assemblies, in the Brazilian context this procedure was fundamentally flawed. First, the degree to which Brazilians were democratically represented in the Congress was severely attenuated. Brazil's electoral legislation badly under-represented the most populous states. States from the North, Northeast and Center-West, with about 40 percent of the population, had 52% of the delegates to the Assembly. Using two different models, Barry Ames has calculated that about one-fifth of the crucial votes in the Constituent Assembly would have been different if its membership had been elected in proportion to population.15 Second, the 1986 Congress included senators elected indirectly by an Electoral College in 1982 under the prior authoritarian electoral legislation. These 23 senators had no specific mandate from the electorate to serve as part of a constituent assembly.16 Third, the voters knew virtually nothing about the candidates' views with respect to elaborating a new constitution.17 Fourth, the Congress had (and still has) a ravenous appetite for pork barrel benefits (i.e., government jobs for supporters and geographically specific public works projects). Votes of members of Congress in the Constituent Assembly were purchased, or at least rented, in exchange for pork-barrel programs.18 While specially elected members of a constituent assembly also might have been susceptible to the blandishments of pork, their lack of concern with reelection should have made their appetites much smaller than those of members of Congress.

Another element of unfairness resulted from the Sarney Administration's successful efforts to conceal the ineffectiveness of its economic stabilization plan from the electorate. Sarney deliberately delayed until just after the November 1986 Congressional elections a desperately needed adjustment to his Cruzado Plan, a wage increase coupled with a freeze on prices and the exchange rate that created the illusion of monetary stability and relative prosperity, while exacerbating the underlying causes of the galloping inflation it had temporarily suppressed.19 Had voters realized that the Cruzado Plan was a huge fiasco, and that the country was actually in the grip of the worst inflationary crisis in Brazilian history, the number of members elected by the PMDB would have been far fewer.20



Apart from political fairness, combining legislative and constitution-making functions in the Congress had other drawbacks. Drafting a new constitution dragged on for 19 months, partly because the Brazilian Congress was forced to divide its time, meeting unicamerally in the mornings as the Constituent Assembly and bicamerally in the afternoons as the legislature. Ideally, constitutions should be meant to endure rather than to be constantly rewritten.21 This means that they should be elaborated by statesmen with long-term national perspectives. The Brazilian Congress, on the other hand, is a highly political body with a short-term perspective and agenda, elected primarily to represent state and local interests rather than the interests of the nation. President Sarney successfully exploited Congressional local interests to influence the constitution-making process.22 Moreover, as a basic political player, Congress had a clear conflict of interest. It is not surprising that the constitutional document that the Congress drafted aggrandizes Congressional power and confers numerous favors and entitlements upon state, municipal, and special interest groups. Congress has also been the primary beneficiary of the frequent constitutional amendments, each of which provides two occasions to open the pork barrel to secure the needed extraordinary majorities in two voting rounds.


The Composition of the Assembly


At the start of the Assembly's deliberations in early 1987, the majority (298 out of 559) of the delegates to the Constitutional Assembly were members of the PMDB. But Brazilian party affiliations are frequently transient, and many of those elected under the eclectic PMDB label came from other parties. David Fleischer's analysis shows that 82 members of the PMDB in 1987 were former members of the PDS or ARENA, parties that supported the military government, and that only 212 (40%) members of the Assembly were authentic PMDB members in the sense that they either came to the PMDB from the MDB, the party that opposed the military government, or joined the PMDB directly. But even this so-called authentic PMDB was ideologically quite heterogeneous. Fleischer's research also reveals that the largest group in the Assembly consisted of the 217 delegates who were former members of ARENA, the military government's party. The Folha of São Paulo, one of Brazil's leading newspapers, estimated the ideological breakdown of the Assembly as: 9% Left, 23% Center-Left, 32% Center, 24% Center-Right, and 12% Right. Although 257 (46%) of the delegates had law degrees, only 51 (9.1%) actually practiced law. In terms of economic activity, the largest group was made up of 211 (37.7%) delegates whose primary income came from invested capital. Another 133 (23.8%) of the delegates were rural property owners.23
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