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



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The Results of Brazil's Constitution-making Process


The 1988 Constitution reflects the intense political mobilization of interest groups and lobbies for inclusion of their demands and protection of their interests. It contains a host of unwieldy entitlements that often embed traditional Brazilian corporatism and clientelism. The convoluted drafting process virtually assured that the new Constitution would lack organic unity and a coherent vision for a democratic Brazil. The end product is a mélange of progressive, conservative, liberal, radical, and moderate provisions, all rather uncomfortably ensconced side-by-side in a complex, detailed document containing 245 articles and 70 transitional provisions, many of which contain numerous elliptical sections and subparagraphs.

The Constitution is dirigiste and programmatic, setting out ambitious goals for reforming Brazilian society and attempting to determine the political course of action of future governments. Rather than emphasizing fundamental principles and basic procedural rules for future resolution of societal problems, Brazil's charter sets out detailed substantive rules that belong either in ordinary legislation or administrative regulations rather than in a constitution. The result is a constitutional straightjacket that has been a serious obstacle to effective democratic governance and socio-economic modernization.

Despite the great detail in which many subjects have been regulated, the Constitution requires a great many complementary and ordinary laws to fill in missing elements or to permit implementation of its provisions. A principal reason for this constitutional style is the polemical nature of many provisions. Many measures were so divisive that the Constituent Assembly could finish its task only by postponing the details to future legislation.56

Moreover, the Constituent Assembly made a calculated decision to defer rather than to resolve constitutional conflicts permanently. The Assembly postponed for five years the ultimate resolution of the shape of the Constitution that it had just adopted. Given the serious constraints placed upon the constitution-making process by the military and its ally, President Sarney, as well as the political unfairness associated with the way in which its members were selected, the Assembly's decision to make Brazil's 1988 Constitution provisional arguably was a sensible strategy.57 Two transitional provisions provided for revisiting basic constitutional questions after five years by plebiscite and by a facilitated revision procedure.


Plebiscite after Five Years


The framers deferred ultimate resolution of their bitter fight about whether to adopt a presidential or parliamentary form of government for five years, at which time the issue would be resolved by plebiscite.58 Initially, the supporters of presidentialism proposed the issue be resolved by plebiscite when they were losing in the deliberations of the Systematization Committee. Thereafter, supporters of parliamentarism embraced the idea after losing to presidentialism in the plenary vote. Since the time for introduction of new amendments had already passed, the vanquished supporters of parliamentarism hitched a ride on a bizarre amendment by Deputy Cunha Bueno that was awaiting floor consideration. Bueno's amendment proposed holding a plebiscite in five years to decide whether to restore the monarchy or retain a republican form of government.59 Bueno's amendment was passed with the support of the unsuccessful advocates of a parliamentary system, who successfully added a sub-amendment calling for an additional vote on whether to adopt a presidential or parliamentary system of government.

Both questions were ultimately resolved by the plebiscite held in 1993. In an election marred by significant absenteeism and spoiled ballots, 66% of the votes were cast in favor of retaining a republican form of government against 10.2% for restoration of the monarchy, and 55.4% were cast for presidentialism against 24.6% for parliamentarism.60


Streamlined Total Revision after Five Years


Article 3 of the Transitional Constitutional Provisions Act provided that the Constitution could be revised in 1993 by an absolute majority of Congress in a unicameral session. Some of the Constitution's critics cynically observed, only partly tongue-in-cheek, that this was the only sensible provision in the entire Constitution, for it allowed Congress to amend the entire Constitution by a process simpler than enacting an ordinary statute. The President had no veto power, and the unicameral vote facilitated overriding obstructionism from the smaller, more conservative Senate. This was obviously a risky proposition with potential for scuttling a basic purpose of a written constitution--the preservation of a particular vision of structuring and limiting power and protecting that vision from being easily overthrown by future generations.61 It also created five years of institutional uncertainty. On the other hand, it had the potential for revisiting a badly flawed constitutional document during a period in which the president would be popularly elected and the military would be much less likely to intervene.

Unfortunately, the wholesale constitutional revision envisaged for October 1993 never materialized. Important nongovernmental organizations challenged the legitimacy of revising the Constitution by a single vote of a bare majority of Congress. Leftist politicians and social groups, fearful that they would lose gains made in 1988, formed an anti-revisionist bloc that temporarily succeeded in blocking the revision, initially by litigation and later by parliamentary obstructionism. By this time, Congressional attention was diverted towards a major corruption scandal, nicknamed "Budgetgate," in which 29 of its members were charged with diverting huge sums from the Treasury into their own bank accounts through a budget-rigging scheme. Budgetgate forced postponement of constitutional revision until March 1994. By then most Congressmen were focused on the upcoming elections.

Although more than 17,000 amendments were presented for Congressional consideration, only six were enacted. Of these only two had any real significance. Revision Amendment No. 1 of March 1, 1994, temporarily changed the revenue sharing rules, placing 15 percent of the revenues that were to be transferred from the federal government to state and local governments for fiscal years 1994 and 1995 into an Emergency Social Fund. This transfer of an estimated nine billion dollars was critical to the success of the Plano Real, the stabilization plan that successfully lowered the inflation rate from about 50 percent per month to less than 10 percent per year. The other significant Revision Amendment was No. 5 of June 7, 1994, which increased the presidential term from four to five years.

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