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

Restoration of Democracy and the 1946 Constitution

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Restoration of Democracy and the 1946 Constitution

The 1946 Constitution reestablished a democratic system of government. Like the 1891 Constitution, it reflected the influence of the U.S. Constitution with respect to federalism and individual rights. It also reflected the influence of the Weimar Constitution with respect to socio-economic rights and structures.

The demise of the 1946 Constitution began in 1961 with the enigmatic resignation of the popularly elected president, Jânio Quadros. Quadros indicated that he had renounced the presidency because the country was "ungovernable" under the existing constitutional regime. Widespread political opposition to leftist Vice President João Goulart led to enactment of Constitutional Amendment No. 4 of September 2, 1961, which permitted Goulart to assume the presidency, but only under a parliamentary regime that deprived him of most presidential powers. This parliamentary system functioned poorly. After a plebiscite, a constitutional amendment of January 23, 1963, restored presidentialism. But Goulart was neither a popular nor a competent president. Inflation reached a record high after a failed stabilization program that alienated his supporters. Badly miscalculating his tenuous political support, Goulart attempted to move the country sharply to the left. The result was a military coup that ousted Goulart in April 1964.

The Constitutions of 1967 and 1969

The military maintained the Congress and the 1946 Constitution, which it immediately modified by a series of institutional acts. These were unconstitutional decrees, signed by members of the military high command, who claimed to be exercising the constituent power in the name of the Revolution. Thus, the military high command became a self-designated and self-legitimating ambulatory constituent assembly. Military leaders used institutional acts to select presidents, to remove opposition members of Congress, and to deprive many Brazilians of their political and civil rights for a ten-year period. The Second Institutional Act permitted the president to pack the Supreme Court and to issue decree-laws in matters involving national security, a power soon expanded by the Fourth Institutional Act to include all financial and administrative matters.

The 1967 Constitution was designed to lend a greater semblance of legitimacy and permanence to the military regimes running Brazil. Formally ratified by a Congress from which most political opposition had been purged, this Constitution incorporated key provisions of the four institutional acts passed between April 1964 and December 1966. Its tenor resembled the 1937 Constitution that institutionalized the Vargas dictatorship. An electoral college consisting of members of Congress and delegates nominated by the state legislative assemblies formally elected the president for a four-year term. In practice, however, only a general could be a candidate.

The 1967 Constitution was followed by a period of constant crisis due to widespread popular opposition to the military government. The military command responded by issuing another series of twelve institutional acts that continuously modified the Constitution in accordance with the military's assessment of the needs of the moment. Institutional Act No. 5 of December 13, 1968, which authorized President Costa e Silva to suspend all legislators and to exercise total legislative powers himself, thoroughly eviscerated the constitution. It also gave the president the power to deprive citizens of their political rights for ten years, to quash legislative mandates summarily, to declare and prolong states of siege, to suspend freedom of association, to impose censorship, and to dismiss or to retire any government employee or office-holder. Article 10 suspended habeas corpus for crimes against national security, the popular economy, and the social and economic order. The President used this Act to launch a witch hunt against his opponents and to force early retirement of three prominent members of the Supreme Court.

The Constitution of 1969

In August 1969, President Costa e Silva suffered a stroke. Rather than permit the civilian Vice President, Pedro Aleixo, to succeed to the presidency in accordance with the Constitution, the armed forces issued Institutional Act No. 12, "authorizing" the military leaders to assume the executive power in the form of a junta. A subsequent institutional act (No. 17 of October 17, 1969) "authorized" the military junta to issue constitutional amendments. The junta promptly issued Constitutional Amendment No. 1, which rewrote and renumbered the entire text of the 1967 Constitution. Despite its label, most Brazilian constitutional scholars treat Amendment No. 1 as the 1969 Constitution.

The 1969 Constitution strengthened the powers of the executive. It increased the presidential term of office from four to five years and expanded the ambit of the President's decree-law power to include taxation, creation of public employment, and determination of salaries for civil servants. The greatest expansion of executive power came from a provision allowing the president to send bills to Congress on any subject with each house having only 45 days in which to consider such bills. If labeled urgent, both houses had only 40 days for joint consideration of such bills. Any bill not considered or rejected during that period was deemed automatically approved.

The 1969 Constitution sharply reduced the nominal protection previously accorded to individual rights. Publications contrary to good morals were prohibited. The government could impose the sanctions of death, perpetual imprisonment, banishment, and confiscation. Even those individual rights that were theoretically guaranteed remained suspended until October 13, 1978, when the institutional acts were revoked.

The 1969 Constitution, like the 1967 and 1937 Constitutions, institutionalized de facto military regimes. All three constitutions shared the basic feature of heavy centralization of power. All transferred power to the federal government from the states and municipalities, leaving Brazilian federalism a shadow of its former self. All transferred powers from the legislature to the executive. In practice, none actually provided minimally adequate protection for individual rights. All lacked legitimacy, for none was adopted by the people or their democratically elected representatives. None of the regimes they institutionalized had any serious commitment to constitutionalism.

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