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

The Role of the Systematization Committee

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The Role of the Systematization Committee

The thematic committee rapporteurs were responsible for forwarding the draft articles to the Systematization Committee.41 This Committee, whose composition was decidedly more progressive or liberal than the entire Constituent Assembly, had the difficult task of trying to mold the 24 thematic subcommittees' uncoordinated and often inconsistent articles, plus the thousands of amendments suggested by Assembly members and outside groups, into a more or less coherent document. The PMDB leadership designated Bernardo Cabral, a PMDB Deputy and former president of the Brazilian Bar Association, as rapporteur for the Systematization Committee. Cabral and his assistant rapporteurs42 arranged the thematic committee reports into a single text known as Cabral Zero. In June 1987, Cabral presented this text to the Assembly without changing the contents of the committee reports.

Cabral Zero was a 501-article monstrosity quickly nicknamed "the Frankenstein draft."43 In July 1987, after Assembly members presented 5,615 amendments, Cabral submitted his own 496-article draft (Cabral I), incorporating a number of the proposed amendments. This draft pleased none of the major political forces, particularly President Sarney and the military. Since the rapporteur was free to include or reject any proposed amendments, intensive lobbying efforts, both by members of the Assembly, the Executive and organized societal groups, focused upon Cabral to try to persuade him to change the draft to their liking. Assembly members presented Cabral with another 20,790 amendments, and popular groups submitted an additional 83 amendments.

In September 1987, Cabral presented his second draft (Cabral II) to the Systematization Committee. Cabral II reduced the number of articles from 496 to 264 plus 72 transitional provisions. In this second draft, Cabral sought to resolve many constitutional controversies by postponing them to future enactment of complementary or ordinary legislation, deleting them or by attempting compromise solutions. For example, he excluded the direct democracy features of plebiscites, referendums, and popular initiatives. He maintained the concept of Brazilian firms of national capital, which were to be favored by law, but prohibited discrimination against foreign firms. He left the question of expropriability of land for agrarian reform to ordinary legislation. To try to placate President Sarney, he extended the president's mandate from five to six years. The president would be elected by direct elections, but if no candidate received a majority, Congress would select the winner from among the candidates who received the most votes.44

The Systematization Committee made substantial changes to Cabral II, undoing many of Cabral's compromises. The Committee took two months to vote out its modified version of Cabral II known as Draft A (Projeto A), released for consideration by the entire Assembly on November 18, 1987. At this point the Systematization Committee was dissolved, leaving only its rapporteur to continue his crucial role in the redrafting process. The Systematization Committee's Draft A was a critical document, for the Internal Rules mandated that an absolute majority (280 votes) was necessary to amend or remove any item. Draft A reflected the center-left agenda: a parliamentary system, significant restrictions on foreign investment, substantial government interference in the economy, mechanisms for direct democracy, reduction of the term of the president to five years, limiting Sarney's mandate to four years, highly protective labor provisions, decentralization, substantial transference of tax authority and revenue to the states and municipalities, agrarian reform expropriation of productive land, liberal human rights protection, and broad amnesty provisions. Draft A produced a strong backlash from business groups and rural landowners. The military and President Sarney reacted even more negatively, warning that its approval might lead to a military coup.

The Centrão Coalition and the Change in Internal Rules

Initially, the conservatives were badly divided, which allowed forces of the center-left to dominate the early rounds of constitutional bargaining. Reaction to Draft A galvanized formation of a broad, diverse coalition of Constituent Assembly members from the center and right known as the Centrão (the big Center). This loose-knit group, which cut across party lines, initially coalesced around the strategy of changing the Assembly’s Internal Rules.45 Because of intensive lobbying by large landowners and business elites, increasing threats from the military, and President Sarney's generous distribution of blandishments from the government's pork barrel, the Centrão was able to collect the signatures of 290 Assembly members on a petition to change the Internal Rules. This petition ultimately changed the rule that required 280 votes to remove or amend an item in the Systematization Committee draft to one that required 280 votes either to keep an item in the draft or to remove or amend it. This rule change significantly reduced the power of the progressive/leftist group that dominated the Systematization Committee, but it made the voting process even more convoluted.

Voting Procedure on the Final Drafts

Amendments were considered in two rounds by roll-call votes. The voting order was to consider first any amendment with at least 280 signatures to the basic text of each chapter and title in the Systematization Committee's Draft A. Since the Centrão had prepared its own competing draft constitution, its draft was voted upon first. The Centrão amendments had two chances. Approval of an amendment, either when initially presented or 24 hours later, definitively eliminated the corresponding original text from Draft A. Only if the Centrão's substitute provision failed to win the necessary 280 votes in two tries did the Assembly vote upon the corresponding provision in Draft A. If the original Chapter A provision also failed to receive the necessary 280 votes, Cabral had 48 hours to revise the text. If his proposed revision also failed to win 280 votes, the provision was excluded from the Constitution. Each chapter and title of the draft was considered in order, starting with the Preamble and ending with the Transitory Constitutional Provisions Act. Each amendment was read aloud by Ulysses Guimarães, opined on by Bernardo Cabral, and debated by the members of the Assembly.

Once the basic text of a chapter was approved by an absolute majority, the Assembly moved on to the next voting phase. This was consideration of redactive amendments called destaques, designed to add, modify or delete words, phrases or articles, in the approved text. This process also included a mechanism called the destaque para votação em separado, used to vote upon provisions that were previously excluded from the basic text. The destaques had to be previously presented to the rapporteur for screening and organization.

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