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A Ninth Constitution Won’t Bring Brazil the Rule of Law

1988 Brazilian ConstitutionBrazil has had eight constitutions since the country separated from Portugal in 1822. Most of them, at least in theory, were based on liberal-democratic models of constitutionalism by virtue of establishing an extensive bill of rights and a separation of governmental powers. However, what appears to be a strong commitment to constitutional democracy nonetheless belies a sociopolitical context of disregard of legal norms and principles, including constitutional ones.

A critical analysis of what is going on in Brazil reveals the prevalence of extra-legal factors that prevent Brazilians from establishing an authentic democracy under the rule of law. In fact, the reality in Brazil does not lend itself to the optimistic assumption that only a rights-based constitution might be enough to bring about the necessary sociopolitical context for democracy and the rule of law.

In 1979, the army rulers who at that time still governed the country passed a legislation which granted amnesty to anyone imprisoned or exiled for political reasons. Massive rallies were also organized during that period, agitating for the end of the military regime, and for direct elections of the president.

It was very clear that the military leaders were losing prestige with all social classes. Then, on January 15, 1985, an Electoral College convened at the National Congress elected as Brazil’s new president the civilian Tancredo Neves, a politician from Minas Gerais. The indirect election of Tancredo Neves marked the end of two decades of military government.

Tancredo Neves, however, died of natural causes in March 1985 before he even had the chance to take office as president. The law was respected, and his vice-President, a rural oligarch called José Sarney, appointed as the new president.

Sarney was the leader of the Social Democratic Party (Partido Democrático Social – PDS), a party that had been allied to the military regime. He was the PDS leader until making a strategic jump to the Liberal Front Party (Partido da Frente Liberal – PFL) and creating the Democratic Alliance with Neves.

President Sarney sent to the National Congress, on 27 November 1985, a proposal of constitutional amendment, asking for the convocation of an Assembléia Nacional Constituinte (National Constituent Assembly). This assembly was not a body separated from the Congress, because this amendment endowed congressmen with the power to act as constitutional legislators.

But Sarney decided not to send to the constitutional assembly a draft of constitution prepared by a group of experts known as ‘Afonso Arinos Commission’. After all, the group delivered to him an absurd document which contained more than five hundred articles. He wisely shelved it, allowing parliamentarians to draft the constitution without that report.

The result of their work was promulgated on 5 October 1988, nineteen months after the start of the drafting process. It is not very clear if parliamentarians on that day were celebrating the final result or just the conclusion of such a long period of work.

The result is a lengthy document, originally enacted with 245 articles and 73 temporary provisions. As historian Boris Fausto explains, “in a country whose laws are not good for much of anything, different groups tried to put the greatest possible number of laws into the constitution, believing that somehow this would guarantee their being obeyed”.

The 1988 Constitution is now lengthier. It currently possesses 250 articles, plus 74 temporary provisions, plus 45 constitutional amendments. Some articles are very extensive and could be divided into several articles. Article 5, for instance, contains no less than 77 subsections with four additional paragraphs.

It seems here that constitutional parliamentarians forgot that detailed documents can bring about its rapid obsolescence. The longer a constitutional document, the more likely it is to be constantly amended, and soon regarded less as a fundamental law than just another piece of legislation.

The 1988 Constitution is full of trivial details and unaffordable promises. Article 242, for instance, declares that a public school that is located at Rio de Janeiro must be owned by the federal government. Article 3 says that the government has to eradicate poverty and reduce social and regional inequalities. Of course, the mere enunciation of these objectives can bring no solution to these problems.

As a good example of utterly unaffordable promise, the original text of the Brazilian Constitution prohibited the charging of interest rates above twelve percent per annum. In a country which has for many decades struggled against high levels of inflation, its financial system would enter into collapse had not the STF decided that such provision demanded complementary legislation.

The 1988 Constitution is called a programmatic document, because it is not just a ‘statute of power’ but also a ‘program of government’, to be complied with by the ordinary legislator. A constitution is programmatic if it lays down policy-making. The idea comes from the 1976 Constitution of Portugal, which demanded in its original document a ‘gradual transition’ to socialism.

Programmatic constitutions are a gross distortion of the normal idea of constitutionalism. They represent, in the words of political scientist Giovanni Sartori, “a deviation and an overload of constitutional capacities that results, in turn, in their failure to function well”.

Designed to exercise rigid control over policy-making, the Brazilian Constitution contains legal rules often found only in ordinary legislation. This fact has occasioned the tacit revocation of numerous laws and administrative acts, forcing the legislature to produce hundreds of additional statutes in light of correlating constitutional provisions.

In fact, the enactment of the current Brazilian Constitution required the production of 285 ordinary statutes, plus 41 complementary laws, as a fact that contributed to the legal chaos faced by Brazilians, and which has brought even more discredit to the rule of law.

Any proposal to amending the Brazilian Constitution has to be approved by one-third of the congressmen of any legislative house of Congress, or the President, or one-half of the state legislative assemblies. Because the constitutional text is rigid, it means that it cannot, at least in theory, be easily modified.

Proposals to amend the constitution must therefore be discussed and voted on twice in each house of Congress and can only be approved if it gets a three-fifths majority in both rounds of parliamentary discussion.

There are also temporal limitations for amending the Brazilian Constitution. First, it cannot be done during times of federal intervention (over any state) or if estado de sítio (martial law) is in place. Second, rejected proposals cannot be subject to another deliberation in the same year.

Moreover, the constitution forbids any amendment intended to restrict norms and principles related to the federal system; direct, secret, universal and periodic popular elections; separation of powers; and individual rights and guarantees.

And yet, all this complexity of proceedings for amendment has not helped the Brazilian Constitution maintain its necessary stability as a basic law. Rather, the original document has constantly been altered on account of numerous amendments following the above-mentioned proceeding.

High figures in government and society are now talking about the possible creation of a new constitution. The idea is supported by the president of the Brazilian Bar Association (OAB), Roberto Busato, and by the Chief Justice of the Superior Tribunal of Justice (STJ), Édson Vidigal, who declares that only another constitution can construct a new ‘national project’ for Brazil.

They back the proposal of Miro Teixeira, a federal deputy from the ruling Workers’ Party (PT), who thinks just a new constitution can resolve the political crisis in Brazil, arguing that voters no longer feel themselves represented by politicians.

However, problems like political corruption are provoked mainly by the complete absence of ethical conscience on the part of numerous politicians. Indeed, Brazil would have less corruption if its politicians developed the salutary habit of respecting legal norms. This would be far better an achievement than changing the current constitution.

If laws can be easily modified and/or disrespected, citizens lose any legal guarantee against abuses of the governmental power. Indeed, it is mainly the situation of political corruption and imprudent multiplication of laws that have already generated a situation of absolute discredit to the current constitutional order.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: augustozimmermann@hotmail.com.

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