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Brazil Constitutional Framework
Constitutional Framework
Brazil has had eight constitutions since independence in 1822, beginning
with the constitution of March 25, 1824. The republican constitution
promulgated on February 24, 1891, was very similar to the United
States constitution, containing separation of powers, checks and
balances, a bicameral legislature, federalism, and direct elections.
Concepts of corporatism and centralization from Italy and Portugal
influenced the 1934 and 1937 constitutions. The return to representative
democracy in 1945-46 produced a more balanced, liberal document,
which maintained a considerable role for the state in the nation's
economy. Military rule after 1964 forced an uneasy balance between "relative
democracy" and the "safeguards of a national security
state," reflected in the 1967 and 1969 constitutions.
After 1964 the government of Marshal Humberto de Alencar Castelo
Branco (president, 1964-67) issued four institutional acts and a
series of complementary acts and decrees that severely compromised
the 1946 constitution. Outgoing President Castelo Branco also convoked
a lame-duck Congress in December 1966 and January 1967 to approve
a new constitution drafted by his legal team. The 1967 constitution
removed some important autocratic powers accorded the first military
president.
This 1967 constitution soon became an anathema to the military,
and the government of General Arthur da Costa e Silva (president,
1967-69) decreed the Fifth Institutional Act in December 1968, which
allowed the regime to close Congress and begin a third wave of political
purges (cassações ). Before his incapacitating stroke
in August 1969, Costa e Silva and his vice president, Pedro Aleixo,
had apparently begun drafting a new constitution. The fourth military
president, General Ernesto Geisel (president, 1974-79), decreed
the end of the Fifth Institutional Act in January 1979.
In 1985, the first year of José
Sarney's term, Congress approved the convocation of the National
Constituent Assembly (Assembléia Nacional Constituinte--ANC)
to draft a new constitution. Elected on November 15, 1986, and seated
in February 1987, the ANC adopted a "from scratch" participatory
methodology. Using this methodology, the ANC divided itself into
eight committees and twenty-four subcommittees to draft respective
sections of the document, and it held public hearings on suggested
content. After twenty months of deliberation and two rounds of voting,
the ANC produced the 1988 "citizen constitution," which
was promulgated on October 5, 1988.
The majority party, the PMDB, was not united during the ANC. After
the drafting committee produced a "progressive" first
draft, the PMDB's center and right wings joined conservatives from
other parties to form the conservative coalition, the Big Center
(Centrão), in December 1987, to alter the internal rules
governing first-round voting. The Big Center prevailed on some crucial
votes, such as maintaining the presidential system and making Sarney's
presidential term five years rather than four. However, plagued
with absenteeism it was defeated in other areas, such as the economic
order.
The result is a mixed document with certain inconsistencies. Very
liberal in the section dealing with basic human rights, the constitution
also enhances "social rights," such as retirement after
thirty-five years of service, job stability for public employees,
and four months of paid maternity leave. It maintains a strong role
for the state in the economy and distinguishes between foreign and
national capital enterprises.
The ANC maintained the skewed representational plan favoring Brazil's
underdeveloped regions. It also created three very small states--Amapá,
Roraima, and Tocantins--with sixteen additional deputies and nine
new senators, while granting São Paulo ten more deputies.
The states have considerable autonomy in certain areas, such as
maintaining state banks, but the federal constitution is very centralized
regarding election of state officials, mandates, and government
organization.
The ANC was able to pass many controversial articles using bland
wording and a final reference to "future regulation by ordinary
legislation." Some 300 areas of the new constitution were not
automatically applicable and awaited such "regulation"
in subsequent legislative sessions (1989-90, 1991-92, 1993-94, 1995-96,
and 1997-98). Thus, the constitution is incomplete.
The first draft of the constitution was based on a mixed parliamentary
presidential model similar to that of Portugal and France, but a
crucial vote taken on March 22, 1988, reinstated the pure presidential
model. The redrafting to incorporate this major change was incomplete,
however, and several vestiges of the mixed parliamentary system
remained. Most notable was the provisional measure (medida provisória
--MP), a sort of temporary decree, which replaced the presidential
decree law. Whereas the decree law took effect only after thirty
days of inaction by the legislature, the MP takes effect immediately.
Although the MP ceased to exist after thirty days of legislative
inaction, the president could reissue it for successive thirty-day
periods. This power was formidable, especially for a president not
commanding an absolute majority in Congress. In early 1997, however,
the Senate approved an amendment extending an MP's validity from
thirty to ninety days but prohibiting additional extensions and
the use of MPs to create ministries or other government entities.
The 1988 constitution required each state to rewrite its constitution
within one year (during 1989) and each municipality to elaborate
its Organic Law (during 1990), which defines how it operates. In
1991 the Federal District (Brasília) drafted its Organic
Law, and the new states of Amapá, Roraima, and Tocantins
drafted their new constitutions.
ANC members agreed that a very detailed constitution would require
frequent revisions to keep pace with an ever-changing society and
economy. Thus, Article 3 of the transitional provisions provided
that after five years the Congress could be converted into a unicameral
assembly for constitutional revision, deliberating by absolute majority
instead of by the three-fifths margin in each house normally required
for the amendment process. In addition, Article 2 of the transitional
provisions called for a national plebiscite to decide on the form
of government (republic or constitutional monarchy) and the system
of government (presidential or parliamentary). A constitutional
amendment formally setting the plebiscite for April 21, 1992, passed
the Chamber of Deputies. However, in late 1991, during the second
round of voting in the Senate, President Collor intervened to ensure
defeat, fearing negative consequences for his already beleaguered
government. The plebiscite was finally held on April 21, 1993, and
the presidential republic was confirmed by a wide margin.
The revision of the constitution scheduled for late 1993 and early
1994 took place, but with meager results. Factors hindering constitutional
revision included aftershocks from a congressional financial scandal
("Budgetgate") exposed by the Congressional Investigating
Committee (Comissão Parlamentar de Inquérito--CPI);
the October 3, 1994, elections; strong pressure from nationalist
and corporatist groups in defense of state enterprises, job stability,
and national firms; and nonparticipatory methodology (see Glossary).
As of May 1994, the only major change to the constitution was to
shorten the presidential term from five to four years. The next
attempt to thoroughly revise the 1988 constitution was begun in
February 1995, but by the regular amendment process (three-fifths
majority in both houses). Some members would like to use the 1998
elections to again convoke (as in 1987-88) a "constitutional
revision Congress" in 1999, to do a revision by a unicameral,
absolute majority (see Constitutional Reform, this ch.).
Data as of April 1997
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