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



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Lack of Political Domination in the Assembly


No single political group or figure dominated the Constituent Assembly. Even though it initially had an overwhelming majority of the members of the Assembly, the PMDB was a political party with deep ideological divisions and no party loyalty or discipline.46 During the Constituent Assembly, many of its left wing members deserted the PMDB to form the PSDB (Brazilian Social Democratic Party-Partido da Social-Democracia Brasileira), but "even before the split the PMDB had ceased to enjoy any sort of programmatic coherence or legislative discipline."47 The PMDB was not alone in this regard. None of the major parties had a coherent party line for drafting the new Constitution, and only the PT (the Workers' Party) had some semblance of party discipline.

Lack of political direction and the Byzantine voting procedure meant that majority votes on virtually every issue depended on protracted negotiations and bargaining. Faced with a realistic prospect of stalemate, party leaders created an institution called the Leaders' Council (Colégio de Líderes), which has since become a permanent feature of the Congress, to accelerate the voting process. Prior to voting sessions, party leaders began meeting to organize the voting, determining in advance official party positions and the areas of agreement and disagreement.48 The Leaders' Council usually removed the most contentious provisions from the basic texts, leaving them for the destaques. These destaques frequently became the focus of heated debate that was often resolved by compromise after informal negotiations among party leaders.49 Some of these compromises had to be renegotiated if party leaders could not deliver the necessary votes. Even if the votes were there, ofttimes the voters were not. In a constitution-making process that dragged out for 19 months, absenteeism became a significant problem, particularly for Assembly members with business or professional interests in other cities.


The Substantial Revision of Draft A


The Assembly made critical changes to Draft A. These changes resulted from the Internal Rules change forced by the Centrão, the coalitional realignment resulting from conservative and centrist mobilization, Sarney's extensive use of presidential largesse, and threats by the military. In March 1988, by a vote of 344 to 212, presidentialism replaced parliamentarism, and by a vote of 304 to 223, Sarney was granted another year in the presidency. On the other hand, because of absenteeism and ideological divisions, the Centrão failed to replace many leftist provisions in Draft A from remaining in Draft B.

The rules under which Brazilian constitution-making was conducted forced members of the Assembly to negotiate the hotly contested issues. No side could claim a clear victory, and no side was clearly defeated. The process resulted in a series of compromises that allowed conservative forces to prevail on certain issues, such as permitting the military to intervene, on the invitation of any branch of government to protect law and order, or prohibiting agrarian reform expropriations of productive land and small to medium-sized properties. Job security for workers in the private sector was eliminated but retained for the public sector. On other issues, the center-left prevailed, such as restrictions on foreign investment, a prohibition of usury, greater labor union autonomy, and a broad array of human rights.50 Political moderation, protracted negotiations, and substantial compromises, all hallmarks of Brazil's lengthy transition to democracy, ultimately also became the hallmarks of the process of drafting the new Constitution.

The first round required delegates to vote on 732 occasions and finally concluded, five months later, at the end of June 1988. After the July recess, the same process was repeated, albeit more quickly, with each chapter and title of Draft B. The second round required delegates to vote only 289 times and took a little more than one month.

On July 26, 1988, President Sarney made a last ditch effort to sabotage the Assembly's work, claiming in a televised address that adoption of Draft B would leave the country bankrupt and ungovernable. The next day Draft B was submitted to the entire Assembly for a second round of suppressive and corrective amendments. The Assembly eventually approved the final draft by a majority of 403 to 13.

The approved text was then sent to an Editing Committee of thirty people appointed by Ulysses Guimarães. After a final edit for style, the Constitution was finally approved by the Assembly on September 22 and promulgated on October 5, 1988, twenty months after the Assembly began its work. Neither a plebiscite nor any other ratification procedure was held, thereby reducing the Constitution's legitimacy and eliminating any chance for further changes dictated by citizen input.

Despite the complex legalistic rules governing the proceedings, at least three articles were adopted by resort to the ubiquitous Brazilian jeito.51 In October 2003, fifteen years after adoption of the Constitution, Nelson Jobim, then Vice President of the Supreme Court, publicly revealed that with the complicity of Ulysses Guimarães, he had slipped two articles into the final draft of the Constitution, bypassing the Assembly's rules for submission and voting on amendments.52 Shortly thereafter, Jarbas Passarinho, then President of the Committee on Electoral and Party Organization and Institutional Guarantees and member of the Systematization Committee, publicly disclosed that he too had slipped in a last minute amendment at the suggestion of Ulysses Guimarães.53 After a group of jurists called for his impeachment,54 Jobim rationalized his action by opining that his amendments had been ratified by the final vote of the Assembly, which he deemed a kind of third round.55


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