Brazil - Constitutional Framework

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 provis�ria --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 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 ANC maintained the skewed representational plan favoring Brazil's underdeveloped regions. It also created three very small states--Amap�, Roraima, and Tocantins--with sixteen additional deputies and nine new senators, while granting S�o 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.

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.

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.

More about the Government and Politics of Brazil.

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 (cassa��es ). 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.

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.

In 1985, the first year of Jos� Sarney's term, Congress approved the convocation of the National Constituent Assembly (Assembl�ia 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.

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.

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 (Bras�lia) drafted its Organic Law, and the new states of Amap�, Roraima, and Tocantins drafted their new constitutions.

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 (Comiss�o Parlamentar de Inqu�rito--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.

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 (Centr�o), 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.

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