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

Conflict Resolution Via Litigation

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Conflict Resolution Via Litigation

The 1988 Constitution augments judicial independence and makes the Judiciary, particularly the Supreme Court, the primary guardian of constitutional rights. As a reaction against the 21 years of authoritarian military rule, the new Constitution makes a very impressive effort to assure protection of an extensive list of individual, collective and social rights. The Constitution also contains a number of procedural innovations designed to foster judicial protection of these rights. The 1934 Constitution had created a new summary remedy called a writ of security (mandado de segurança) to protect certain rights unprotected by habeas corpus against violation by public authorities. The 1988 Constitution creates a collective writ of security, a sensible expansion of Brazil's limited concept of a class action, to protect groups or classes against illegal or abusive governmental actions. It borrows from the Portuguese Constitution a procedural device called habeas data, which allows anyone to discover any information the government has about him in its data banks and rectify that data if it is incorrect. The personal nature of this right, however, prevents its effective use to discover the fate of persons who disappeared or were killed during the period of military repression. The representation, an action to challenge the unconstitutionality of any law or decree directly before the Supreme Court, could be brought only by the Procurator General during the time of military rule. The 1988 Constitution relabels the representation as the direct action of unconstitutionality and confers standing on a fairly expansive number of groups to secure an abstract determination of the constitutionality of any federal or state law or normative act.74 To try to protect constitutional rights from Congressional inertia, the Constitution creates the mandate of injunction (mandado de injunção), which is to be granted whenever the absence of a regulatory or implementing rule makes impracticable the exercise of constitutional rights and liberties or the prerogatives inherent in nationality, citizenship or sovereignty. It also imports from Portugal the action of unconstitutionality for omission, which is to be granted whenever the Supreme Court determines "the lack of measures to make a constitutional rule effective."

Two additional constitutional remedies have been created since adoption of the 1988 Constitution. The declaratory action of constitutionality, created by Amendment No. 3 in 1993, confers original jurisdiction on the Supreme Court to hear “actions declaring the constitutionality of federal laws or normative acts.” This action, which can be brought only by the President, the Executive Committee of either House of Congress, or the Procurator General, is essentially a mechanism to allow the federal government to bypass the lower courts and to secure a speedy determination of the constitutionality of important and sensitive legislation. Disobedience of a fundamental precept, an action created by Law 9.882 in 1999, can be brought directly before the Supreme Court by anyone with standing to bring a direct action of unconstitutionality whenever there is no other effective remedy. This procedural device enables an absolute majority of the Supreme Court to suspend proceedings before any lower court and by a two-thirds majority declare unconstitutional any law or normative act.

The Constitution also transforms the Public Ministry (Ministério Público) into an autonomous institution and assigns it a primary role in insuring that the laws are being faithfully executed and that collective and diffuse constitutional rights are being judicially protected. By instituting public actions against governmental authorities for misuse of public funds, class actions to protect the environment and consumers, and criminal prosecutions against corrupt politicians, the Public Ministry has become, in the opinion of several Brazilian scholars, a "fourth power."75

The result of this significant expansion of constitutional rights and remedies has been a flood of litigation. The caseloads of the Brazilian courts have increased dramatically since adoption of the 1988 Constitution.76 Much of the litigation involves suits against the government, which stubbornly insists upon appealing every judgment against it, even if the issues have already been decided against it by Brazil’s highest courts. As William Prillaman has observed, the 1988 Constitution was “so prescriptive and detailed that it constitutionalized a staggering range of minor issues and flooded the courts—even the Supreme Court—with the most trivial cases.” As a result, “[a] decade later, opinion was unanimous that unfettered access for everyone had produced, not surprisingly, access for no one.”77 On the other hand, the procedural innovations of the 1988 Constitution have forced the judiciary, particularly the Supreme Court, into the political arena on a regular basis. Consequently, the courts have become an active countermajoritarian political force.78

The Electoral System

Although Brazil has all the formal indicia of democracy,79 the Brazilian Constitution enshrines one of the least democratic federal systems in the world. The Brazilian political system has long had a highly malapportioned system of representation in the Congress. The military regime aggravated the malapportionment by fusing two heavily populated opposition states (Rio and Guanabara) and creating two new thinly populated states (Mato Grosso do Sul and Rondónia). The Constituent Assembly did nothing to rectify the situation. Instead, like the military regime, the Assembly exacerbated the malapportionment by creating three new sparsely populated states and maintaining unique constitutional provisions that entitle every state to three senators and at least eight but no more than 70 deputies. Consequently, a vote for senator in the newly created state of Roraima has 144 times the weight of a vote for senator in São Paulo. If the Brazilian Constitution had adopted the criterion of one person-one vote for the Chamber of Deputies, each of the three newly created states would have only one representative rather than eight, and São Paulo would have 114 rather than 70. In 1990, because of the new Constitution, states from the North, Northeast and Center-West, with only 43 percent of the population, controlled 74 percent of the seats in the Brazilian Senate in 1990.80 This egregious over-representation gives enormous power to a minority to block any changes in the status quo.

Unfortunately, the Constituent Assembly also did nothing to reform the malfunctioning of the political party system, which is one of the world's worst.81 On the contrary, it imposed virtually no constraints upon forming new political parties or upon allowing tiny splinter parties to be represented in Congress. The number of political parties in Brazil jumped from six in 1985 to thirty in 1990, seriously complicating the task of governance. Nor did it modify the open-list system of proportional representation, in which each state is a single, at-large multimember district, a system that badly hinders party discipline.82

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