Historical Investigation: 1988 Brazilian Constitution

Colin Wick 3/3/09

Period 1 IB/AP U.S. History

To what extent were Brazil’s seventh and present constitution of 1988 and the resulting statutes congruent with Brazil’s intended transition from authoritarianism to democracy?

I. Plan of Investigation

The following investigation evaluates the degree to which Brazil’s current constitution of 1988 is truly democratic and congruent with their transition into democracy. In order to accurately assess the democracy of the constitution, this investigation will first explore Brazil’s conversion from authoritarianism to democracy, before focusing on the resulting policies. This investigation will also focus on the validity of the 1988 Brazilian constitution as a truly democratic document that promotes fair and unbiased laws, and will take into account the opinions and ideas of distinguished individuals like Jorge Zaverucha, author of The 1988 Brazilian Constitution and its Authoritarian Legacy: Formalizing Democracy While Cutting its Essence as well as directly analyze the original, un-amended Brazilian Constitution. These sources will be evaluated in order to determine the effectiveness of the Citizen’s Constitution as a protector of democracy, and its ability to generate fair and democratic laws.

II. Summary of Evidence

Brazil’s transition to democracy came relatively late compared the rest of Latin America, beginning on the crest of the third wave of democracy that swept the region (Taylor 166). Beginning in 1964, Brazil experienced its longest military regime in history. Before 1964, the Brazilian military would occasionally intervene in politics as representatives of civilian groups to the point where some believed that the military served the role of political “moderator” (Lins Da Silva 126). But, the pattern changed on March 31st, 1964, when the Brazilian Armed Forces stepped in to overthrow the regime of President Joao Goulart, and instead of returning to the barracks, seized power for twenty-one years. Over time, Brazilian politicians and entrepreneurs learned that the protection they gained through the military against leftist policies, was too costly, and although the coup served the interests of capitalism, it did not necessarily serve the interests of the capitalists themselves, creating many state enterprises, “harming those with market-oriented interests”. The loss of civilian support coupled with bickering among internal military rivalries caused the authoritarian government to crumble. In 1985, the Electoral College, an association controlled by the authoritarian regime, elected Tancredo Neves as president. But, Neves fell fatally ill during his inauguration and never obtained the presidency. This caused conflict over whether the next president should be Neves’ vice president, Jose Sarney, who backed the 1964 coup and opposed any amendment that generated a direct presidential election, or Ulysses Guimaraes, a supporter of direct presidential election, and one who was a strong advocate for the end of military rule. Ultimately, Jose Sarney was seen as the Republic’s vice president, and unlike Guimaraes, had military backing. He was therefore given the presidency coupled with the task of leading the transition from authoritarianism to democracy. This new civilian regime was charged with crafting a new constitution that would abolish the “authoritarian debris” left by the military regime (Zaverucha 5-6). Democratic leaders had decided that the present constitution (1967) was the “child of authoritarianism”, and needed to be “replaced by a new, truly democratic, charter” (Castro 472). During the transition, congress threatened to transform Brazil into a parliamentary state rather than a presidential one, and in turn, shorten Sarney’s term from five years to four. But, the military considered Sarney an ally who would be much more useful as a president than as a prime minister. Therefore, the military threatened another coup in the case that parliamentarianism was approved. Coincidentally or not, the majority vote was 343 to 213 in favor of presidentialism (Zaverucha 8).

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The resulting constitution of 1988 was intended to reestablish the rules of the political game played in Brazil (Spiller 118). The task of creating this new constitution was divided among eight large committees. Two of these committees had leaders with close ties to the military. Jarbas Passarinho, a retired colonel, headed the committee that dealt with issues relating to the armed forces and public security. And the systematization committee in charge of consolidating the final reports of the eight committees was under Bernardo Cabral, known for his close ties with the military (Zaverucha 9). Because of its close ties to authoritarianism, the resulting constitution created a political system that favored its creators, the economic elite. Therefore, making it very difficult to pass any laws supporting equity in Brazil, because those laws would upset the intended status quo (Ames 3/12). Furthermore, this support of the economic elite is seen today in the political dealings of party representatives. Legislators in Brazil are very “pork-oriented”, and have little concern for national issues (Neto 463). They support legislation that gives them the most personal benefit, and are able to disregard the will of large social categories, and even the ideals of their party, because of the support they receive from high-ranking, business officials who in return receive special favors, including certain oversights in the implementation of tax rules (Weyland 45/129). “Therefore, money provides the wealthy with unequal access to government, undermining the notion that the ‘well functioning’ policy process reflects voter’s expressed demands, even indirectly” (Dom 173).

III. Evaluation of Sources

The 1988 Brazilian Constitution and its Authoritarian Legacy: Formalizing Democracy while Gutting its Essence was written by Jorge Zaverucha of the Federal University of Pernambuco in preparation for delivery at the 1997 meeting of the Latin American Studies Association. This historical article was published in the Journal of Third World Studies, an academic publication providing coverage and analyses of international politics. The purpose of this historical article was to present the idea that a transition from an authoritarian rule to a truly democratic state is not possible unless a new civil-military relationship is established. Otherwise, the original authoritarian mode of this relationship will not be compatible with a true democracy and thus, the resulting constitution will have varying degrees of political autonomy for the military. The article analyses key events in Brazil’s transition from authoritarianism to democracy, including the role of the previous authoritarian government, and how both affected the 1988 constitution. The journal also analyses the effectiveness of the resulting constitution as a promoter of democratic dealings. Because the document’s purpose is to prove that the People’s Constitution of Brazil is not as democratic as it may seem, the article is primarily one sided, focusing on the negative aspects of the constitution. Therefore, the document only provides information that supports a single conclusion.

The Constitution of the Federative Republic of Brazil, 1988, written by the representatives of the Brazilian People, convened in the National Constituent Assembly, is a primary source document, meaning that it includes no bias from historical analyses. It was created for the purpose of “ensuring the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the internal and international orders, to the peaceful settlement of disputes, promulgate, under the protection of God” (Constitution of the Federative Republic of Brazil, 1988: Preamble). The document’s value is based on the fact that it defines the rights that were given to Brazil’s people during the transition away from authoritarianism, and has no historical bias. But, this very advantage of an unbiased document is also a hindrance because interpretation of the document is left solely to the reader, resulting in very opinionated analyses. But, further advantages of using a primary document are that it represents both the positive and negative aspects of Brazil’s Democratic State, unlike The 1988 Brazilian Constitution and its Authoritarian Legacy: Formalizing Democracy while Gutting its Essence, which provides primarily negative views of the constitution.

IV. Analyses

Although, the present “People’s Constitution” of Brazil (1988), came as a result of a negotiated transition from authoritarianism back into democracy, the constitution maintained many undemocratic, military prerogatives that had existed in the previous authoritarian constitution, and even added a few new ones. Because of both the old and new articles included in the present constitution that support an authoritarian government, consolidation of democratic civil-military relations in Brazil is quite difficult to accomplish. For example, Article 142[1] of the 1988 constitution states that the Constitutional branches of government would no longer guarantee the functioning of the military, but rather the other way around. This is a highly non-democratic section of the constitution, because even if all three branches of government believe that there is no need for military intervention, if the Armed Forces think differently, they have the constitutional right to intervene as the guarantors of law and order. Therefore, the military’s desire will prevail over all three constitutional powers. Furthermore, Article 124[2] states that the military has jurisdiction over all military crimes, committed by either military personnel or citizens. The definition of a military crime comes from the Military Penal Code from 1969 (peak of authoritarian rule). Therefore, a military judicial system has the ability to judge an ordinary citizen, even if they have committed everyday crimes, giving Brazil the broadest military jurisdiction over civilians of all democratic countries. Furthermore, because the firefighters and policemen of the country are considered part of the armed forces they too are controlled by the Military Penal Code and therefore, have no more disciplinary codes than the ones who are trained to fight wars and deal with international threats. To conclude, a great deal of the military’s autonomy was preserved constitutionally in 1988.

Some historians, such as Pablo T. Spiller, argue that although the separation of powers as defined by the constitution are clearly biased towards the president and the military, there are various safeguards set by the constitution that allow several other political parties to check the president’s actions (Spiller 115). But, because the military has a significant amount of autonomy as defined by the constitution, the president can easily circumvent the various checks as long as he has the support of the military. Article 142 can again serve as an example of this, as the president can easily use the military to bypass congress, by using the excuse that law and order are being threatened. Furthermore, history shows examples of militarily backed proposals and political candidates that support the wealthy, yet miniscule percentage of the country, gaining support from congress, over proposals and candidates that support the majority of Brazil’s population. These examples include the appointment of Jose Sarney as president in 1985 (a supporter of the coup), and the vote for militarily backed presidentialism over the more popular parliamentarianism. Therefore, the government is not truly a representation of the people, but rather a representation of the wealthy and those with military connections. Therefore, instead of the 1988 constitution being a “founding constitution” of a new, truly democratic state, it further engrained military autonomy, and the support of the wealthy into its political workings, only strengthening the state’s incompatibility with democracy and the resulting authoritarian feel.

V. Conclusion

In its essence, the seventh Brazilian constitution of 1988 (the People’s Constitution) was in fact more of a continuation of, rather than a departure from authoritarianism, and supported various regulations that favored the upper class and the military. Because of the influence that the Brazilian military had in the creation of the constitution, it contained certain provisions that supported the views and livelihoods of its creators: not only the military, but the upper class politicians as well. Therefore, the constitution supports a highly undemocratic process, in that rather than being a constitution of a new, more democratic civil-military and civil-political relationship, the 1988 Constitution preserved a mode of these relationships that is incompatible with the modern democratic system. This caused the Brazilian form of “democracy” to become exceedingly limited, providing a political rather than civil form of democracy. Meaning that the political rights necessary for free and fair elections in Brazil have been consolidated, while other rights such as equal access to justice, or freedom from abuses of power by the state or the military, have not.

VI. Appendix

1 “The Armed Forces purpose is to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order” (Constitution of the Federative Republic of Brazil).

2 “The Military Courts have the competence to carry out legal proceeding and trial of the military crimes defined by law” (Constitution of the Federative Republic of Brazil).

VII. Bibliography

Ames, Barry. The Deadlock of Democracy in Brazil. Michigan: The University of Michigan P, 2001.

Brazil. National Constituent Assembly. CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL. 1988.

Castro, Marcus F., and Maria I. Carvalho. "Globalization and Recent Political Transitions in Brazil." International Political Science Review 24 (2003): 465-90.

Dom, Jorge I. Constructing Democratic Governance in Latin America. Ed. Michael Shifter. New York: Johns Hopkins UP, 2008.

Lins da Silva, C. E. "Brazil's Struggle with Democracy." CURRENT HISTORY -NEW YORK THEN PHILADELPHIA- 92 (1993): 126.

Neto, O. A. "Barry Ames, The Deadlock of Democracy in Brazil." POLITICAL SCIENCE QUARTERLY -NEW YORK- 116 (2001): 462.

Rodrigues, Corinne D. "Civil Democracy, Perceived Risk, and Insecurity in Brazil: An Extension of the Systematic Social Control Model." The ANNALS of The American Academy of Political And Social Science 605 (2006).

Spiller, Pablo T. Policymaking in Latin America : How Politics Shapes Policies. Ed. Ernesto Stein and Mariano Tommasi. New York: Inter-American Development Bank, 2008.

Taylor, Steven L. "Democratization In Latin America." Latin American Research Review 37 (2002).

Weyland, Kurt. Democracy Without Equity: Failures of Reform in Brazil. Pittsburgh: University of Pittsburgh P, 1996.

Zaverucha, Jorge. "The 1988 Brazilian Constitution and its Authoritarian Legacy: Formalizing Democracy while Gutting its Essence." Journal of Third World Studies (1998).