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



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The Adoption of the Assembly's Internal Rules


The Constituent Assembly convened on February 1, 1987, with a largely undefined agenda. Its first tasks were election of its president and executive committee (Mesa) and the drafting of its internal rules. The only rules mandated by the constitutional amendment that convoked the Assembly were: (1) that the Chamber of Deputies and the Senate meet as a single chamber on February 1, 1987, (2) that the President of the Supreme Court install the Constituent Assembly and supervise the election of its president, and (3) that the text of the Constitution be approved in two rounds of voting by an absolute majority. The leader of the PMDB, Ulysses Guimarães, was easily elected president of the Assembly, and he appointed Senator Fernando Henrique Cardoso, a member of the liberal wing of the PMDB from São Paulo, to formulate the internal rules in collaboration with the leadership of the political parties. Cardoso's draft of the internal rules, presented on February 16, 1987, generated controversy on two critical issues: the sovereign powers of the Assembly to enact measures that would take effect immediately, and the process by which the new constitution would be drafted.

The Cardoso draft gave the Assembly the power to issue Decisional Measures (Projetos de Decisão) with immediate effect on any matter deemed relevant. Such measures would have allowed the Assembly to amend the existing 1969 Constitution at any time by vote of an absolute majority rather than by the two-thirds majority required by the 1969 Constitution. This proposal was vehemently opposed by the center-right elements, who argued that the sovereign powers of the Assembly were limited to drafting a new constitution rather than governing the country. Eventually, Cardoso worked out a compromise in which Decisional Measures could be issued only against acts that threatened the sovereignty of the Assembly. Although several such measures were proposed, none was ever adopted.24

The second issue was whether to start the drafting process with or without a draft prepared by constitutional scholars. The Assembly opted to draw up a new constitution without starting from a draft on the theory that this would make the process as open and democratic as possible. The Assembly emphatically rejected the idea of commissioning a draft as a "dangerous instrument of control over the Assembly."25

The No Architect/No Blueprint Approach to Constitution-Building


The Constituent Assembly's decision to proceed without a draft seriously complicated the Assembly's principal task. Had it started with a coherent draft, the Assembly could have shortened the drafting process enormously and probably would not have produced a document with such serious conceptual and organizational flaws. In July 1985, President Sarney appointed a blue-ribbon committee, headed by Afonso Arinos, a distinguished jurist and politician, to prepare a draft constitution for submission to the Constituent Assembly. The extensive Arinos Draft, issued in September 1986, contained 451 articles with many commendable features.26 The Arinos Draft proposed a type of parliamentarism similar to the French Fifth Republic, with a congressionally chosen prime minister and a popularly elected president. It also proposed a badly needed German-style reorganization of the party system with proportional representation and a threshold of 3 percent of the national vote for party representation in Congress. But President Sarney refused to submit the Arinos Draft to the Constituent Assembly because he disagreed with many of its provisions, particularly creation of a mixed parliamentary-presidential system of government. Nevertheless, a strikingly similar proposal surfaced in the Assembly's draft constitution.

The 1988 Constitution was drafted from scratch by the entire 559-member Assembly. This did not mean, however, that the drafters created the Brazilian Constitution out of whole cloth. In fact, they borrowed many provisions from previous Brazilian constitutions and the Arinos Draft. PRODASEN, the Senate's informatics and data processing center, not only assembled and compared all prior Brazilian Constitutions, but it also collected Portuguese translations of the constitutions of more than 36 countries, including Germany, Italy, Japan, Spain, and the United States. These translations, along with the Portuguese Constitution, were made available to members of the Assembly.27 The Assembly held seminars on constitution-writing for its members with experts from various countries. The strongest outside influence on the Assembly members was the Portuguese Constitution of 1976 and the doctrinal writings of the distinguished Portuguese constitutional scholar, Professor José Joaquim Gomes Canotilho of the Law School of the University of Coimbra.28


Thematic Committees and Subcommittees


The Assembly's Internal Rules, approved on March 24, 1987, adopted a decentralized system of drafting to be done initially by the members themselves rather than by hired experts or a special committee. The Internal Rules called for all members of the Assembly to divide themselves into eight thematic committees, each made up of 63 regular members and a similar number of substitutes, who were also Assembly members. Each committee, in turn, was divided into three thematic subcommittees, each with 21 members. At every phase, decisions were made by an absolute majority vote. These thematic committees and subcommittees consisted of:
I. Committee on Sovereignty and the Rights and Guarantees of Men and Women

(a) Nationality, Sovereignty and International Relations

(b) Political Rights, Collective Rights and Guarantees

(c) Individual Rights and Guarantees



II. Committee on Organization of the State

(a) Federal Government, Federal District and Territories

(b) States

(c) Counties and Regions



III. Committee on Organization of the Branches and System of Government

(a) Legislative Branch

(b) Executive Branch

(c) Judicial Branch



IV. Committee on Electoral and Party Organization and Institutional Guarantees

(a) Election System and Political Parties

(b) Defense of the State and Society and their Security

(c) Guarantee of the Constitution, its Reform and Amendment



V. Committee on the Tax System, Budget and Finance

(a) Taxation and Revenue Participation and Sharing

(b) Budget and Financial Oversight

(c) Financial System



VI. Committee on the Economic Order

(a) General Principles, State Intervention, and Regimes of Property to the Subsoil and Economic Activity

(b) Urban Questions and Transportation

(c) Agricultural Policy, Land Tenure and Land Reform



VII. Committee on Social Order

(a) Rights of Workers and Civil Servants

(b) Health, Security and the Environment

(c) Blacks, Indians, Disabled and Minorities



VIII. Committee on Family, Education, Culture, Sports, Communication, Science and Technology

(a) Education, Culture and Sports

(b) Science, Technology and Communication

(c) Family, Minors and Elderly

The PMDB had by far the largest representation on each committee and subcommittee because membership on all committees was proportional to each party's representation in the Assembly. The PMDB allowed its members to designate the committees upon which they wished to serve. Each committee and subcommittee was headed by a president, two vice-presidents, and a general rapporteur. These leadership positions were allocated on the basis of negotiations among the leaders of the various parties. The liberal wing of the PMDB took advantage of the internal divisions within the conservative wing of its party to elect Mário Covas, a liberal senator from São Paulo, as floor leader of the PMDB in an internal election on March 18, 1987. Covas made sure that all nine of the committee rapporteurs, who played critical roles in initial drafting process,29 were PMDB members, and that eight were drawn from the liberal wing of that party. Eight committee presidents were members of the second largest party, the PFL, and one presidency went to the much smaller PDS (Social Democratic Party-Partido Democrático Social). The great bulk of the vice-president positions also went to the PMDB. While leadership of the subcommittees was more evenly divided among the parties, Covas secured the bulk of the leadership positions for the more liberal members of the PMDB.30

The Internal Rules permitted civic associations, private citizens, and members of the Assembly to submit suggestions to each subcommittee. The first sessions were devoted to collecting and reviewing 11,989 suggestions from civic associations and individuals that had been organized by PRODASEN. The subcommittees then held 182 public hearings and heard testimony from individuals and organizations with respect to these public suggestions. Each subcommittee then drafted its respective part of the principal committee's theme, which was then forwarded to the principal committee for integration into that committee's draft. In May 1987, after forwarding their 24 drafts to their respective parent committee rapporteurs, the subcommittees were dissolved.

Between May 25 and June 15, 1987, the eight thematic committee rapporteurs integrated their subcommittee drafts into a single document, which they submitted to the entire committee for amendment and discussion. In this first round, a total of 7,727 amendments were proposed to the eight committee drafts. The rapporteurs then redrafted the documents for further discussion and amendment. Another 7,184 amendments were proposed in the second round. Finally, the proposed text was submitted to a vote of the entire committee. Despite the barrage of proposed amendments, surprisingly few modifications were made at the thematic committee level.31

In June 1987, the Assembly created a special Systematization Committee, whose function was to integrate the final reports of the eight thematic committees into an organic draft for presentation to the entire Assembly. The critical role of this committee and its rapporteur is discussed below.


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