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



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Popular Participation


Unlike the Assembly that drafted the U.S. Constitution, which operated in complete secrecy, the Brazilian Constituent Assembly made a concerted effort to make its proceedings as public as possible. The Assembly strongly encouraged popular participation from all sectors of civil society. The Internal Rules created the "popular amendment," which enabled citizen's groups to present constitutional proposals that had to be considered by the entire Assembly. Popular amendments required the signatures of at least 30,000 voters and had to be organized by at least three legally constituted associative entities responsible for the authenticity of the signatures. For each popular amendment, one signatory had the right to make a 20-minute presentation to the full Assembly. One hundred twenty-two popular amendments, some with more than one million signatures, were actually submitted to the Assembly in the month following the Systematization Committee's presentation of its initial draft.

The Assembly's Internal Rules also required that each subcommittee devote five to eight sessions to hearing from entities representing various sectors of Brazilian civil society. Virtually all interest groups sought protection of their interests and inclusion of their demands in the new constitution. Those heard from included such diverse groups as government ministers, environmentalists, human rights activists, feminists, business associations, unions, landlords, Indians, street urchins, prostitutes, homosexuals, and maids. Proposals from any civic organization were automatically submitted to subcommittees, who were required to hold public hearings on them. PRODASEN sent out more than five million questionnaires to voters and civic groups, soliciting suggestions on what they believed should be in the new Constitution. PRODASEN also set up a computerized data bank containing the results of the 72,719 popular suggestions received in return.32

Television and newspapers kept the work of the Assembly in constant public view. O Globo, the nation's largest TV network, carried the entire initial session of the Assembly in a live broadcast. The Congressional staff set up a media center to insure that the news media disseminated and explained the Assembly's acts to the general public. This center produced 716 television programs, 700 radio programs, 3,000 hours of video, and 4,871 interviews with members of the Assembly. Five minute radio and television segments on the work of the Assembly were aired twice a day. The center’s weekly journal on the Assembly's proceedings was distributed to more than 70,000 government officials, universities, and research institutions.33 The press, the Church, unions, human rights groups, and civic groups repeatedly urged the public to become involved in the process of drafting the new constitution. During the seemingly interminable deliberations, virtually all aspects of Brazilian society were debated. Both in principle and in final result, nothing was deemed too trivial for possible inclusion in the new constitutional text. Some 61,142 amendments were proposed; some 21,000 speeches were delivered. The annals of the Constituent Assembly fill 100 volumes.34 The President of the Assembly, Ulysses Guimarães, dubbed Brazil's new charter "The Citizens' Constitution" for good reason.

Because the political parties were weakly organized and political forces badly divided, the Assembly was unusually susceptible to pressures from societal interest groups.35 Seven of the most influential societal interest groups were organized labor, business groups, rural landowners, the military, the Church, peasants and the so-called popular movement.


Organized Labor


Because labor unions had difficulty in agreeing upon specific proposals, a lobbying organization called DIAP (Inter-Union Department for Parliamentary Action) had the task of articulating organized labor's interests before the Constituent Assembly. Organized in 1983 by a group of labor unions, DIAP was a voluntary organization run by a group of labor lawyers.36 The interests of the labor movement were also promoted by the Workers' Party (PT), founded in 1980 by Luis Inácio Lula da Silva. The PT elected 16 representatives to the 1986 Congress.

The labor movement lobbied hard and effectively for autonomy from the Ministry of Labor and a series of specific labor benefits, such as reducing the number of hours in the work week from 48 to 44, extending the right to strike to all workers, extending maternity leave and creating paternity leave, and increasing the compensation rate for overtime. They also lobbied hard for restoration of job security, which had been replaced by the military with the FGTS (Fund for the Guarantee of the Time of Service). Strong opposition by business groups to restoring job security in the private sector ultimately resulted in its defeat after bitter debate. On the other hand, civil servants successfully lobbied for job security and extension of tenure to all government employees with five years of service irrespective of whether they had passed the entrance exams, as well as generous retirement benefits. Maids' organizations, formed specifically to lobby the Assembly, were successful in securing insertion of a provision that extended to domestic workers the benefits of the minimum wage, a month's paid vacation, one day off a week, a month's notice before dismissal, four months of paid maternity leave, and retirement. The labor movement also supported, albeit much less effectively, land reform. The labor movement sought to influence the Assembly directly through its PT representatives, by sending delegations to lobby, by mobilizing the rank-and-file, and by holding rallies to support pro-labor candidates.


Business Groups


The business sector was much more diverse, and consequently had even greater difficulty in articulating a set of policies for which to lobby. The Federation of Industries of São Paulo (FIESP) set up a special committee to prepare constitutional proposals, which in 1986 produced a neo-liberal document called "Contribution to the Future Brazilian Constitution." In March 1986, industrial leaders organized the Union of Brazilian Businessmen (UBE) in Brasília as an umbrella organization for diverse business groups to formulate constitutional proposals for the business community. In November 1987, a similar umbrella organization, the National Front for Free Enterprise (FNLI), was organized to mobilize business interests to defend free enterprise against the constitutional draft emerging from the Assembly and ran a fifteen-day television campaign in favor of free enterprise. Industrial business groups lobbied hard in favor of free enterprise, restriction of governmental enterprises, and neo-liberalism. They also lobbied against labor demands for absolute job security and an extension of the right to strike. But some business groups diverged from neo-liberalism to support market protection, special privileges for firms of national capital and extensive restrictions on foreign investment. Perhaps the most effective technique used by business groups to influence the outcome of the constitutional drafting process was election of some 211 of their members to the Assembly. Business groups also generated numerous documents articulating and explaining their positions.

Rural Landowners


Rural landowners vigorously and effectively opposed peasant demands for land reform. Membership in its lobbying organization, the Rural Democratic Union (UDR), organized in 1985 in reaction to a land reform program, grew from 50,000 to 230,000 between 1986 and 1987. In October 1986, several rural business agricultural organizations, such as the Confederation of Agriculture (CNA) and the Brazilian Rural Society (SRB) joined with the UDR to form an umbrella organization called the Ample Front for Agriculture (FAA) to lobby the Constituent Assembly. Landowners raised substantial funds by auctioning off cattle, using the funds to mobilize mass demonstrations and to buy media time urging rejection of constitutional provisions on land reform.37 They also elected a group of 80 members to the Constituent Assembly.

The Military


The military lobbied very effectively through thirteen superior officers assigned as liaisons to Congress and through its long-time ally, President Sarney. It also strongly pressured (even intimidated) members of the Assembly through public threats of another coup d'état by military ministers. The military successfully sought to protect its corporative privileges, to retain its historic position as the guardian of domestic order and protector of the constitutional order, to increase military appropriations, and to maintain its contingent of six cabinet positions. It also successfully opposed civilian control over the military, an attempt to create a ministry of defense, a parliamentary form of government, attempts to dismantle the National Security Council (CSN) and the National Information Service (SNI), land reform, and extension of the right to strike to essential public services. Indeed, military influence of the deliberations of the Assembly was so great that Alfred Stepan and Juan Linz have placed the Brazilian Constitution in the category of constitutions "created under highly constraining circumstances reflecting de facto power of non-democratic institutions and forces."38

The Church


The Roman Catholic Church, which had been a significant moral force in opposing the military regime, particularly in criticizing its human rights violations and in promoting social justice for the poor through Grassroots Church Committees (CEBs), eschewed covert lobbying of members of the Constituent Assembly. Instead, the National Conference of the Bishops of Brazil (CNBB) tried to set the agenda for the Assembly by publishing in 1986 a document entitled "For a New Constitutional Order," which called for protection of human rights, income redistribution for the poor, agrarian reform, reduction in media monopolization, and more active citizen participation in government. Rather than endorse specific candidates for the Assembly, the Church urged its members to vote for candidates dedicated to social justice and human rights. The Church did play an active role, however, in promoting popular amendments and in organizing public meetings with members of the Assembly. It also organized a special commission to record and disseminate the work of the Assembly.39 The bishops successfully included a provision in the Constitution making religious education optional during normal school hours in public elementary schools and successfully blocked feminist attempts to legalize abortion. The Church was less successful, however, in preventing expansion of the right to divorce and artificial birth control.

Peasant Groups


The National Confederation of Agricultural Workers (CONTAG) with millions of members was one of the leading organizations pressing for agrarian reform. In 1985, CONTAG prepared a document for the Arinos Commission setting forth its constitutional agenda for land reform. In 1985, the National Conference of Brazilian Bishops formed a Pastoral Commission for Land to support peasant lobbying for land reform. The Movement of the Landless Rural Workers (MTRST), formed in 1980, also pushed hard for land reform. The agenda of these groups was specific constitutional provisions permitting expropriation of productive land and for payment of compensation for land taken for agrarian reform at less than fair market value and in bonds. They urged that five percent of governmental revenues be set aside solely for agrarian reform purposes. They also demanded limits on the size of land holdings by both Brazilians and foreigners, as well as severe constraints on the ability of property owners to resist the expropriation of their lands in the courts. The principal lobbying technique of the peasant groups was mass mobilization. Lacking the financial resources of the rural landowners, they managed to elect only one of their members to the Assembly. Intense political maneuvering by rural landowners ultimately led to rejection of most of their demands in the Assembly.40

The Popular Movement


The popular movement consisted of a diverse group of civic and professional organizations, as well as a broad array of grassroots organizations and technical institutions, that began as a lobby for a popular constituent assembly. They were led by the Brazilian Bar Association (OAB), the National Conference of Brazilian Bishops (CNBB), and the Workers' Party (PT). After achieving that goal, these groups began lobbying the Constituent Assembly to make the drafting process transparent and accessible to the public. They succeeded in having the Assembly adopt the popular amendment process, which they then used to propose detailed and programmatic measures to make Brazilian society more just. Their lobbying efforts consisted of rallies, leaflets, demonstrations, books, posters, and popular amendments.
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