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Architecture of the Constitution

Three decades after its ratification, a scientific study reveals the uniqueness of the federal Constitution's construction and evidence of pioneering spirit in its codification of citizens' rights

Inauguration of the Constituent Assembly is celebrated on the Esplanade of the Ministries

Arquivo Agência Brasil

A landmark in the restoration of democracy and in the recognition of social and civil rights, the Brazilian Constitution achieved its 30-year anniversary in October. It comes amid an intensifying debate about its capacity to sustain the socio-political pact that has since governed the country’s democracy and its institutions. Not only the anniversary, but also the crisis that Brazil has experienced over the last several years has demanded deeper reflection from researchers on the subject. Studies on the constituent process, constitutionalization and its effects on social policies, the prominence of the Judiciary, as well as analyses on the future of the constitution have become increasingly relevant in scientific production, especially in the areas of law, political science, and economics.

Throughout these three decades one of the major academic challenges has been to understand how the constitutional process, whose origins would suggest an important influence from conservative factions (many of which were involved in the military dictatorship from 1964 to 1985), resulted in a document aimed toward social rights. A fundamental key to understanding this issue lies in analyzing the interactions between the political forces involved and the set of rules that guided the debates and the drafting of the Constitution itself—the National Constituent Assembly’s (ANC) internal bylaws.

In 1986, the Brazilian Democratic Movement Party (PMDB) won a significant vote, obtaining 54% of the seats, or 303 of the 559 seats being contested in the elections to the ANC. Together with the Liberal Front Party (PFL) formed by dissidents from the National Renewal Alliance (ARENA, the party in support of the dictatorship), the PMDB formed part of the Democratic Alliance, a very heterogeneous but predominantly conservative coalition. The Democratic Alliance included politicians linked to the military as well as congressmen aligned with what was considered a more progressive agenda, as was the case with Mário Covas. When he assumed leadership of the PMDB in the Constituent Assembly, the São Paulo senator led the party to break with the Democratic Alliance. “From then on, the constituency became polarized, with a progressive bloc on one side formed by the Mário Covas-led PMDB, together with parties such as the PT [Worker’s Party] and the Democratic Labor Party (PDT), depending on the agenda. On the other side were the forces that supported the regime, including the PFL and PTB [Brazilian Labor Party],” says political scientist Antônio Sérgio Rocha, from the Department of Social Sciences of the Federal University of São Paulo (UNIFESP), Guarulhos campus.

Arquivo Agência Brasil The president of the ANC, Ulysses Guimarães (1916–1992), formally enacts the constitution: “I declare this document of freedom, democracy, and social justice for Brazil ratified!”Arquivo Agência Brasil

More organized and cohesive, the so-called progressives managed to include rules in the bylaws, for example, which allowed for the decentralization of the constituent process. Thematic committees and subcommittees had the power to initiate and establish the agenda of debates and were responsible for formatting the draft projects that would only later be voted on in the plenary session. “With his political ability, the PMDB leader [Mário Covas] was able to assign to most of the committees chairpersons who were committed to the social agenda. This assured an advantage for progressives, who were a minority in the ANC,” says political scientist Lucas Costa. A researcher at the Center for Public Sector Policy and Economics (CEPESP) of the Getulio Vargas Foundation School of Business Administration (EAESP-FGV), Costa studies the influence of the Brazilian Constitution on other Latin American constitutions, especially with regard to the implementation of social policies.

Direct Democracy
Another singular aspect of the constituent process was the introduction of mechanisms for direct democracy. “Until then, it was very rare to have a constituent process that included tools for popular participation such as occurred in the case of Brazil, with popular amendments and public hearings,” Costa observes. The provision that regulated the popular amendments guaranteed that any proposal submitted with the signatures of at least 30,000 Brazilian voters and the recognition of at least three political associations would be discussed and voted on in the Constituent Assembly.

In Costa’s view, the fact that most of the subcommittees were chaired by progressives and that the bylaws allowed for ample popular participation ensured the advancement of the social agenda during the ANC’s initial moments. At that stage, there was active participation from various interest groups. “For example, DIAP [the Inter-Union Department of Parliamentary Counsel], was able to unite trade unions such as CUT [Unified Workers’ Central] and the CGT [General Workers’ Central] in defense of its agenda, while business stakeholders acted individually and with little cohesion,” he adds. In addition to mobilizing labor, groups that defended health and education agendas also organized around their issues.

Senado fotos Urbanist and Catholic leader Francisco Whitaker (right) delivers a set of popular amendments, proposed by millions of citizens, to the president of the ANCSenado fotos

At the same time, social movements fighting for popular participation in the Constituent Assembly found an important ally in the progressive wing of the Catholic Church. The extensiveness of this protagonism is one of the revelations of the research project A Constituinte recuperada: Vozes da transição, memória da redemocratização, 1983–1988 [The Constituent restored: Voices of transition, memories of reinstating democracy, 1983–1988]. More than one hundred of those involved in the political transition, and in the work of the National Constituent Assembly, were interviewed in an effort coordinated by UNIFESP’s Antônio Sérgio.

He recalls that beginning in the late 1970s, under an initiative of the National Conference of Brazilian Bishops (CNBB), a group of legal experts traveled around the country, taking advantage of the basic ecclesial communities’ structure and connection to the church, and explaining to people the importance of a new Constituent Assembly that would restore the democratic state of law. “Mobilizing the Catholic Church was instrumental in the drive to collect signatures for popular amendments in some of the country’s most diverse locations. In addition, according to urban planner and Catholic leader Francisco Whitaker, the church also helped charter buses to ensure access by social movements to the public hearings in Brasília, and hosted the groups’ leaders at convents and ecclesiastical buildings in the capital,” reports Antônio Sérgio.

The conservative forces
For the next phase of the work, each thematic committee presented its preliminary draft to the Systematization Committee, which was responsible for integrating the various demands. This process resulted in the first draft of the Constitution, which, as observed in the studies of both Antônio Sérgio and Costa, reflected the overrepresentation of the progressive wing within the thematic committees. The next stage would have been a vote in plenary, but the rules of the internal bylaws imposed limitations on changing the text. Unhappy with the course of the proceedings, the more conservative sectors of the ANC tried to regain control. Under the command of then President of the Republic José Sarney (1985–1990), a cross-party coalition was formed that would become known as the Centrão [literally, the large center]. Their principal objective was to amend the bylaws to allow for the submission of amendments and substitutions in plenary and to modify the draft approved by the Systematization Committee. The bloc also acted to overthrow two specific measures: the parliamentary system of government and a four-year term for Sarney, as their coalition advocated for a presidential system and a five-year mandate. The cross-party coalition was successful, and new internal bylaws more conducive to modifications in plenary were approved.

Lula Marques / Folhapress Senator Mário Covas heads the “Consensus Group,” in July 1987, during the drafting of the ConstitutionLula Marques / Folhapress

In addition to maintaining the powers of the Executive, this same bloc also defended measures proposed by the military leadership. According to Antônio Sérgio’s research, the then minister of the army, General Leônidas Pires Gonçalves (1921–2015), drafted a document with 26 demands from the military. One of these demands stipulated that the Armed Forces would be responsible for ensuring law and order within the national territory. Attenuated in its final wording, this demand was reflected in Article 142 of the Constitution, which specified that the Armed Forces shall be subordinated to the Presidency of the Republic, and “are intended for the defense of the Country, for the guarantee of the constitutional powers, and, on the initiative of any of these, of law and order.”

Changes in the internal bylaws and the interaction between political forces delayed the process. Begun on February 1, 1987, and scheduled to close on November 15 of that year, the Brazilian Constituent Assembly actually lasted 20 months, a period that was quite long compared to other recent Latin American constitutional proceedings. In Bolivia’s case, which is closest to Brazil’s in terms of duration, the assembly lasted 16 months; in Venezuela and Colombia, four months. The final text of the Constitution was approved in plenary on September 22, 1988, with 474 votes in favor, 15 against, and 6 abstentions. Although 15 of the 16 constituents of the PT had voted against the final draft, believing that even though there had been improvements the prevailing power structures would remain intact, the party did sign the final document.

Even with the changes in the internal bylaws and meeting several of the conservatives’ demands, the final text didn’t lose its fundamentally progressive characteristics. In Costa’s view, this is because the political cost of withdrawing most of the rights included in the initial stages of the constituent process would have been too high. In this manner, even though some concessions were made, the progressives succeeded in getting a document ratified that included many of their proposals.

Fernando Santos / Folhapress In front of the Sé Cathedral, in São Paulo, Dom Paulo Evaristo Arns initiates the Walk for the Constituent Assembly, bound for Brasília in March 1987Fernando Santos / Folhapress

Social policies
Among its main provisions, the Constitution of 1988 establishes the state as the guarantor of policies aimed at universalizing education and healthcare, reestablishes individual liberties and freedom of expression, innovates in the chapter on environmental issues, and consolidates labor rights. It also promotes the rights of minority populations such as quilombolas [former slaves and their descendants with occupied lands] and indigenous peoples. As the result of an association between anthropologists, legal experts, and indigenous leaders, the Constitution is the first in the country’s history to devote an entire chapter to indigenous peoples. The document confers on the state the duty of maintaining protective relations with traditional communities and promoting their rights. “It’s a milestone because it introduces the idea that these peoples have the right to a future and to continue to exist,” summarizes Samuel Barbosa, a professor at the University of São Paulo Law School (USP). He is the organizer, with anthropologist Manuela Carneiro da Cunha, of the recently launched Direitos dos povos indígenas em disputa (Indigenous Peoples Rights in Dispute; Editora UNESP). “Until then, the view of native peoples was that they were relics of the past that would disappear as they were assimilated into the national culture.”

Another important paradigm shift was the establishment of “original rights,” the assurance that natives are entitled to traditionally occupied lands. “This is different from moving people to an indigenous reserve, which is an artificial creation of the state,” Barbosa explains. In the Constitution, the original lands are the property of the federal government, whose responsibility is to demarcate them and guarantee their ownership to the natives. “The demarcation is a necessary condition for the natives’ physical and cultural reproduction because, for them, the land has not only economic but also cultural and religious dimensions. Without that bond with the land, their traditions disappear, and the indigenous peoples are assimilated,” he says.

“The Constitution establishes a paradigm shift for social policies, guaranteeing everyone, for example, the right to retirement and healthcare, benefits which were previously restricted to those who had formal employment,” observes political scientist Marta Arretche, from the School of Philosophy, Languages and Literature, and Humanities at the University of São Paulo (FFLCH-USP). Arretche is also coordinator of the Center for Metropolitan Studies (CEM), one of the Research, Innovation, and Dissemination Centers (RIDC) supported by FAPESP. “About 60% of the population, which had previously been excluded, started to make use of these social policies, which is no small thing,” she adds (see article on page 26).

In Antônio Sérgio’s evaluation, one of the great attributes of the Constitution is its explicit intention to transform society: “Unlike more classic constitutions such as that of the United States, which is limited to structuring the state and presenting a charter of rights, the Brazilian Constitution establishes a commitment to social justice.” Political scientist Andrei Koerner of the Institute of Philosophy and Human Sciences at the University of Campinas (IFCH-UNICAMP) agrees, and says that the Brazilian process was influenced by post-World War II European constitutionalism, especially by the constitutions of Portugal (1976) and Spain (1978). “They are constitutions that propose a democratic pact, increase the tools for protecting and promoting civil rights, and defend a state that is more active in regulating the economy,” he notes.

However, looming over these social inclusion policies is the controversial issue regarding their financing by the state. For some scholars, the Constitution expanded potential expenditures without equally addressing the sources for these benefits. For others, such as Antônio Sérgio, by indicating taxation on corporate profits and revenues, the constitutional text indicated the sources for Social Security financing, ensuring financial solvency for social rights. However, measures taken subsequent to the Constitution of 1988 have successively reassigned these taxes, for example, to contain the fiscal deficit, thereby reducing the state’s ability to fund social security.

According to Oscar Vilhena, professor of constitutional law at the Getulio Vargas Foundation Law School (FGV-EDSP), one of the biggest areas of disagreement in the academic debate regarding the Constitution places social scientists and economists in opposite camps. “Studies in the field of sociology point out that critics who say that the Constitution has generated fiscal deficits don’t consider the impact these public policies have had on people’s lives,” he notes. “In turn, certain economic literature criticizes the model of legal requirements regarding the distribution of revenues for social policies, claiming that it creates inefficiency and is economically unfeasible.”

This idea is defended by Samuel Pessôa, a researcher in the area of Applied Economics at the Brazilian Institute of Economics (IBRE) of FGV. For this economist, the social pact entered into by the Constitution generated an excessive increase in the tax burden and public spending, putting the Brazilian economy at a difficult crossroads. “When public spending grows at rates above the gross domestic product for a number of years, there is pressure on the economy that, in order to reach a balance, requires very high real interest rates,” he says. Consequently, in his view, investment would be compromised, especially in sectors such as urban infrastructure, logistics, basic sanitation, and real estate. “The collateral effect of building the social welfare state is a low-growth equilibrium because the high interest rate makes investment very expensive,” he adds.

However, Pessôa makes a distinction regarding the origin of public expenditures in the constitutional text. “In this social welfare state there are a variety of programs that generate costs, but they are the result of a legitimate decision-making process by society, by the average voter. This is different from issues related to maintaining corporate privileges, which are linked to pressure from interest groups, such as public servants and business sectors,” he points out. “And the actions of these groups also originate from the constituent assembly, which, in the absence of a strong president, managed to assert their interests.”

A very thorough Constitution
The Brazilian Constitution is considered by many specialists to be extremely detailed, which cannot be dissociated from the political context of the time, Vilhena observes. “Since there was a lot of mistrust, and no clear hegemony in the Constituent Assembly, various elements were constitutionalized out of precaution, in order to guarantee a kind of ‘big insurance,’” the FGV professor points out. Koerner compares the Brazilian constituent process to that of India (1950) and South Africa (1997). “The larger, multicultural, emerging countries that gained independence or reinstated democracy during the post-WWII era have very detailed constitutions because they had to work on complex issues and demands by diverse groups throughout society.”

Jorge Araujo / Folhapress The National Congress voting panel displays constituents’ attendance and votes during a session that discussed the system of government in March 1988Jorge Araujo / Folhapress

A recent study by political scientists Rogério Arantes of FFLCH-USP and Cláudio Couto of EAESP-FGV found that about one-third of the Constitution is dedicated to constitutionalizing public policies, which in the researchers’ evaluation has a strong impact on the country’s governance, leading presidents to resort to constitutional amendments. “They don’t do this because they want to change the structure of the constitution, but because they have to change previously constitutionalized public policy in order to implement their agendas,” he explains. According to their survey, the 105 amendments (see chart on page 23) added more provisions than they removed from the Constitution. The result is a constitutional text that’s 44% larger than the original version.

According to Vilhena, constitutionalizing various aspects of the political, economic, and moral domains has led to an overemphasis of judicial power, which means that every constitutional clash will end up in the Supreme Court, from same-sex unions to tax issues. In the area of legal scholarship, the role of the Judiciary also spurred a series of studies on the interpretation of the Constitution. “Since the 1990s, much of the work of legal experts has been to reformulate and adapt, to Brazil, theories of interpretation and proportionality which come from a legal arsenal that uses foreign sources,” Vilhena reports. “We have a great number of works aimed at interpreting the Constitution of ’88, in such a way as to extract the most effectiveness from the statutes,” he adds.

An object of reflection from various perspectives, academic research regarding the Constitution often reflects the political and socioeconomic times of the country. “The Constitution was heavily criticized in the years following its ratification, due to the inflationary crisis and the collapse of political alliances, when there was a perception that it hadn’t made any difference and wasn’t here to stay,” Koerner notes. “By the 2000s, when it was 20 years old, there was a more positive perspective due to the effects of SUS (the Unified Health System) and the social assistance policies,” he says.

Leopoldo Silva / Federal Senate In the plenary chambers of the Brazilian National Congress, indigenous people watch as the vote is taken on the chapter of the Constitution regarding their rightsLeopoldo Silva / Federal Senate

In Vilhena’s view, the current issues surrounding the Constitution originate from the wave of protests in 2013, when protesters demonstrated their dissatisfaction with the Brazilian party system, which was widely regarded as inefficient and corrupt. “The protests and subsequent impeachment in 2016 exposed the fragility of coalition presidentialism and began a period of extreme conflict,” he notes. Vilhena points out that this polarization deepened a trend in which partisan and institutional disputes have been brought before the Judiciary. “Since then institutions have used their constitutional prerogatives with the goal of harming their adversaries—and the impeachment and disputes between Congress and the Supreme Court have exacerbated this.”

In Rogério Arantes’s view, in spite of the current political and institutional crisis, the Brazilian Constitution meets the standards of similar documents with longer histories. The researcher’s argument is based on the study “The endurance of national constitutions,” published in 2009 by Zachary Elkins, Tom Ginsburg, and James Melton. After analyzing every national constitution created from 1789 to the early 2000s to determine the number of years they remained in force, the three researchers reached the conclusion that the median lifespan is 19 years. For Arantes, the longevity of the lean and durable United States Constitution is an exceptional case. “Constitutions tend to remain in effect to the degree they are detailed and inclusive—the more they allow for a wider range of political actors to participate in decision making—and the more flexible they are, in other words, easy to change via amendments. These are the exact characteristics of the Brazilian Constitution,” he concludes.

Article 5
All are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security, and property, as follows:
I – men and women have equal rights and duties under the terms of this Constitution;
III – no one shall be submitted to torture or to inhuman or degrading treatment;
XLIV – the action of armed groups, either civil or military, against the constitutional order and the democratic state is a non-bailable crime, with no limitation;
IX – the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license;
XLII – the practice of racism is a non-bailable crime, with no limitation, subject to the penalty of confinement, under the terms of the law;