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Brazil, Constitutions

Brazil, Constitutions

Since proclaiming independence in 1822, Brazil has had eight constitutions, well below the Latin American per-country average of thirteen. None has worked very well. It is not clear, however, to what extent the problems should be attributed to the constitutional rules and to what extent to the individuals governing under and around these rules. Until Brazil can resolve some of its most pressing economic, social, and political problems, it is doubtful that any constitution will work well.

THE 1824 CONSTITUTION

Brazil's first constitution was its most enduring, lasting sixty-five years with only one amendment. Modeled upon the French Constitution of 1814, it established a hereditary Catholic monarchy, headed by the emperor Dom Pedro I. This document, containing 172 articles, inaugurated Brazil's tradition of complex and lengthy constitutions. It established a centralized, unitary system of government. Although it divided the country into provinces and counties (municípios), these territorial units had little independent authority. The central government was divided into four powers: legislative, executive, judicial, and moderating.

Legislative power was exercised by a bicameral General Assembly with a Chamber of Deputies, whose members were chosen for four-year terms, and a Senate, whose members were chosen for life. The number of deputies per province depended upon population, and each province had half as many senators as deputies. Both houses were selected indirectly by provincial electors chosen by parish assemblies, but the emperor selected senators from lists of three nominated by provincial electors. The government's manipulation of the electoral process, however, destroyed even the limited representative nature of the assembly. The assembly both enacted and interpreted the laws. It had the power to choose a new dynasty if the royal family became extinct and to elect a regent if the emperor was a minor. The deputies could impeach all officials except the emperor, who was legally inviolable.

The emperor exercised both the executive and moderating powers. The moderating power was designed to resolve conflicts among the other powers of government. The executive had extensive powers, including appointments, foreign relations, security, execution of the laws, appropriations, and veto of ecclesiastical decrees. The moderating power included selecting senators, calling extraordinary legislative sessions, approving or vetoing legislation, dissolving the Chamber of Deputies and calling new elections, nominating or dismissing ministers of state, suspending judges, and granting pardons and amnesties. The emperor also appointed for life a Council of State that advised him and resolved administrative law disputes.

The judiciary consisted of a Supreme Tribunal of Justice, Provincial Tribunals (Relações), law-trained judges, and elected justices of the peace. Lay jurors determined the facts in both civil and criminal cases. Judges had life tenure, but they could be transferred or suspended by the emperor.

This was in many ways a progressive constitution. It guaranteed many individual rights, protected freedom of thought and expression, and abolished many cruel penalties inherited from Portugal. Equal protection of the laws was guaranteed to citizens. Even though Catholicism was the state religion and only Catholics could become deputies, it provided for religious tolerance. At the same time, however, it permitted slavery and failed to create procedural devices to protect basic rights.

THE 1891 CONSTITUTION

In 1889 the monarchy was overthrown by the military, whose first act, drafted by Rui Barbosa, abolished the Constitution of 1824 and proclaimed the Republic of the United States of Brazil. Heavily influenced by the U.S. Constitution, the 1891 Constitution was Brazil's shortest, containing only ninety-one articles and eight transitional provisions. It changed Brazil into a republican federation and converted the former provinces into twenty sovereign states. It also extended the franchise to all literate adult males.

The government was reduced to three branches: executive, legislative, and judicial. The bicameral legislature consisted of a Chamber of Deputies and a Senate. Each state and the federal district elected three senators; deputies were apportioned by population, each state having at least four. Senators were elected for nine years; deputies for three years. In contradistinction to the United States, where such subjects are primarily governed by state legislation, the 1891 Constitution specifically authorized the National Congress to enact federal codes of civil, commercial and criminal law.

The executive was headed by a president elected by direct vote for a four-year term and ineligible for immediate reelection. His powers included administration of the armed forces, conducting foreign affairs, vetoing or approving legislation, granting pardons, and calling extraordinary congressional sessions. With Senate approval, the president could appoint members of the Supreme Court and the diplomatic corps. He appointed inferior federal judges from lists submitted by the Supreme Court.

As in the United States, the Constitution created the highest court, the Supreme Federal Tribunal, and authorized the legislature to establish the inferior federal courts. Unlike the United States, Brazil's Constitution expressly conferred the power to determine the constitutionality of legislation upon the judiciary. The jury system was retained. Guarantees of judicial independence were taken directly from Article III of the U.S. Constitution: life tenure and nondiminution of salaries.

Basic constitutional rights, such as liberty and property, which previously had been assured only to Brazilian citizens, were extended to foreign residents. Habeas corpus, which had merely a statutory basis under the empire, was made a constitutional right. The penalties of death, banishment, and galley service were abolished.

This U.S.-inspired Constitution worked poorly. The period during which it was in force, known as the Old Republic, was marked by continual political instability and widespread electoral fraud. In 1926 a constitutional amendment greatly expanded the power of the federal government to intervene in the states, limited state autonomy, cut back habeas corpus, and modified congressional powers.

THE 1934 CONSTITUTION

Even as amended, the 1891 Constitution never conformed to Brazilian political reality. It perished in 1930, a casualty of a military revolt that brought to power Getúlio Vargas, whose provisional government promptly modified the 1891 Constitution to assume dictatorial powers. An unsuccessful São Paulo revolt against the dictatorship eventually led to restoration of constitutional government. In 1934 a new constitution, modeled upon the German Weimar Constitution of 1919 and the Spanish Constitution of 1931, was adopted. This was even longer than prior constitutions, containing 187 articles and 26 transitional provisions.

Federalism and the tripartite division of powers were retained, but the powers of the federal government were enhanced at the expense of the states. Legislative power was actually controlled by the Chamber of Deputies, with the Senate assuming the role of a fourth power, similar to the moderating power of the emperor. The deputies, apportioned by population, were elected for four-year terms. Five-sixths were chosen by universal direct vote of the people in each state, while one-sixth were chosen by indirect vote of professional associations, divided between employers and employees. The executive power was exercised by the president and his cabinet. There was no vice president.

The Constitution created two new court systems, the electoral and labor courts. The former represented a reaction to the electoral fraud that had characterized the Old Republic, whereas the latter reflected Vargas's concern with protection of the working class.

The 1934 Constitution made several other important innovations. It was the first to extend the franchise to all literate Brazilians over the age of eighteen, regardless of sex. Voting, which had been optional during the Old Republic, was made obligatory for all males and for female civil servants. It created the writ of security (mandado de segurança), a summary procedure to protect clear and summarily ascertainable constitutional rights unprotected by habeas corpus. It also began the process of nationalization of certain sectors of the economy, such as navigation, newspapers, advertising agencies, mining, and insurance.

THE 1937 CONSTITUTION

In 1937, the year before his presidential term was to expire, Vargas staged a coup d'état and proclaimed the Estado Nôvo, the "new state." Vargas replaced the 1934 Constitution with a constitution that enabled him to exercise dictatorial powers. This was a shadow constitution for two reasons. First, article 187 required that the constitution be ratified by a plebiscite, which was never held. Second, Vargas ignored its basic provisions, dissolving all political parties and holding no elections. Article 180 authorized the president to legislate by decree-law until Congress met. Congress never met, and Vargas issued more than 8,000 decree-laws between 1937 and 1945.

During the entire period of the 1937 Constitution, individual rights were suspended by a continual state of emergency. A number of rights protected in prior constitutions remained unprotected in the 1937 Constitution. The state of emergency lasted until 30 November 1945, a month after Vargas was overthrown by the military.

THE 1946 CONSTITUTION

The Constitution of 1946 was even longer than its predecessors, containing 218 articles and 36 transitional provisions. Like the 1891 Constitution, it reflected the influence of the U.S. Constitution, particularly with respect to federalism. In structure and in protection of socioeconomic rights, it reflected the Weimar Constitution. As a reaction to the Vargas dictatorship, it denied the executive the power to issue decree-laws. The legislature resembled that of prior constitutions but functioned very inefficiently, resulting in the growth of administrative decrees as a substitute for legislation. The judiciary recovered its autonomy as well as the power of judicial review. Article 125 provided for creation of the Public Ministry, a civil-law institution that performed pros-ecutorial functions and defended the interests of law and society before the courts. Individual rights were generously protected, and exclusion from judicial consideration of any injury to an individual right was expressly prohibited.

The demise of the 1946 Constitution began in 1961, when President Jânio Quadros resigned, claiming that Brazil was ungovernable under the existing constitutional regime. Vice President João Goulart was permitted to assume the presidency only after a constitutional amendment created a parliamentary regime. Thus restructured, the new government functioned poorly, and a 1963 constitutional amendment restored presidential powers. Miscalculating the depth of his political support, Goulart tried moving the country to the left and was overthrown by the military in 1964.

The 1946 Constitution remained in force, as modified by a series of "institutional acts" issued by the military high command, functioning as a self-designated ambulatory constituent assembly. The military quickly selected General Humberto Castello Branco as the new president, removed opposition legislators, and deprived opponents of political and civil rights for ten years. The president packed the Supreme Court, increasing its size from eleven to sixteen justices. The president was empowered to issue decree-laws in matters involving national security, finances, and administration.

THE 1967 CONSTITUTION

The 1967 Constitution, formally ratified by a Congress from which most political opposition had been purged, centralized power in the executive and in the federal government. The president was elected by an electoral college, but in practice only a military leader could be a candidate. The legislative provisions resembled those of the 1946 Constitution except for the authority of the president to enact decree-laws even when the legislature was in session. The Constitution guaranteed an impressive array of individual rights, but the guarantees were seldom in force.

A period of constant crisis followed promulgation of the Constitution, due to widespread opposition to military government. The military responded by issuing an additional dozen institutional acts. Act 5 of 13 December 1968 removed virtually all restraints on presidential power. The president suspended all legislative bodies and exercised total legislative power himself. The president not only compulsorily retired three unduly independent Supreme Court members and many lower-court judges, but also suspended habeas corpus for crimes against national security.

In August 1969 President Artur da Costa e Silva suffered a stroke. Rather than permit the civilian vice president to replace him, a military junta assumed the presidency. The junta also issued Constitutional Amendment 1, rewriting the entire text of the 1967 Constitution.

THE 1969 CONSTITUTION

Whether the 1969 Constitution should be regarded as a new constitution or merely an amendment is an unsettled issue. This Constitution further strengthened executive powers, expanding the presidential term to five years and authorizing the president to issue decree-laws not only with respect to national security, but also taxation, creation of public employment, and public salaries. The greatest expansion of presidential power came from granting the president the power to submit "short-fused" bills on any subject. Each house had forty-five days to consider such bills; if labeled urgent, both houses had only forty days for joint consideration. Bills not considered during these periods were deemed automatically approved.

The protection previously accorded to individual rights was badly diluted. Moreover, such rights were suspended until 1 January 1979, when Institutional Act 5 finally expired. In January 1985 Brazil elected, albeit indirectly, its first civilian president since 1960. Restoration of democracy led to the adoption of a new constitution in 1988.

THE 1988 CONSTITUTION

The 1988 Constitution is a lengthy, detailed, and convoluted document, originally containing 245 articles and 70 transitory provisions. Some of these articles run on for more than five pages, such as Article 5, which has 78 sections, many with multiple subsections. As of 22 May 2007, fifty-nine amendments have been enacted, many of which have made extensive changes to the original text. The Constitution at this writing contains 250 articles and 94 transitory provisions. This count is misleading, however, because certain new articles have been inserted interstitially, such as Arts. 29-A, 103-A and 103-B, whereas some articles have been totally or partly revoked. Moreover, many provisions of amendments have never been inserted either into the constitutional text or into the transitory provisions.

Heavily influenced by the 1976 Portuguese Constitution, the text contains a plethora of detailed rules normally found in ordinary legislation. Paradoxically, despite the great detail with which many subjects have been regulated, some 285 ordinary statutes and 41 complementary laws were required to effectuate its provisions. Thus far, Congress has failed to enact all the necessary implementing legislation.

The Constitution is a hodgepodge of progressive, conservative, liberal, radical, and moderate provisions. This is partly because it was drafted from scratch by the entire 559 members of Congress and partly because the initial drafts contemplated a parliamentary system. At the last minute, Congress switched to presidentialism but left numerous parliamentary provisions in the text.

The 1988 Constitution weakens the executive and strengthens the legislature. It makes the president accountable to Congress, which can impeach, as it did Fernando Collor de Mello, Brazil's first popularly elected president since Quadros. Congress has exclusive power to control rulemaking by administrative agencies. All acts of the executive, including acts of indirect administration, are theoretically subject to control by one or both houses of Congress.

The drafters refused to grant the president the power to issue decree-laws. Instead, they granted him the powers to issue delegated laws and provisional measures. Except for a few reserved subjects, Congress may delegate to the president the power to enact legislation, a power that has been relatively unimportant. On the other hand, the power to issue provisional measures, which was borrowed from Italy's parliamentary Constitution, has been important and much abused in Brazil's presidential system. Prior to 2001, by simply alleging relevance and urgency, Brazilian presidents were able to issue provisional measures with the force of law on virtually any subject. While in theory provisional measures lost their efficacy ab initio unless converted into law within thirty days, presidents routinely reissued provisional measures not specifically rejected by Congress, some as many as eighty times, until they were either finally adopted or rejected by Congress.

Amendment 32 of 11 September 2001 curbed the egregious abuses of the provisional measure. Presidents are now prohibited from issuing provisional measures on many subjects. Provisional measures are valid for sixty rather than thirty days, and they may be extended only once if Congress fails to act upon them within sixty days. Provisional measures that lapse because of passage of time are no longer void ab initio; any legal relations constituted under them are to be regulated by legislative decrees.

The 1988 Constitution considerably strengthens the powers of the judiciary. Courts have much greater financial independence and substantially greater power to declare statutes unconstitutional. Amendment 45 of 8 December 2004, the long-delayed Judicial Reform Amendment, attempts to make Brazil's notoriously lethargic judiciary more rapid, efficient, and transparent. It creates a National Council of Justice with the power to control the judiciary's finances and administration, as well as to discipline judges and their staffs. It relieves some of the overcrowded docket of the Supreme Federal Tribunal by transferring its exclusive jurisdiction to recognize foreign judgments and to grant letters rogatory to the Superior Tribunal of Justice, and by limiting its hearing of extraordinary appeals to those presenting constitutional issues with general repercussions. The Amendment also enables the Supreme Federal Tribunal to make constitutional decisions approved by a two-thirds majority into binding precedents.

Among the most impressive achievements of the new Constitution are its procedural innovations in the protection of constitutional and legal rights. Substantive guarantees of individual rights are also impressive, protecting virtually every human right. Unfortunately, this is an area where the gap between the Constitution on paper and the Constitution in practice looms largest. The Constitution also protects a vast array of socioeconomic rights. Education, health, labor, leisure, security, social security, protection of maternity and infancy, and assistance of the unprotected are declared to be social rights. Article 7 contains numerous sections and subsections that read like a miniature progressive labor code.

A number of provisions in the original version of the Constitution made little or no sense, and some posed serious obstacles to the country's governability and economic development. For example, a provision declared that charging an annual real rate of interest in excess of 12 percent constituted the crime of usury. Had it been enforced, this provision might have destroyed the Brazilian financial system. Fortunately, it was never implemented and was revoked by of 29 May 2003. Major obstacles to reducing the bloated bureaucracy were provisions that granted tenure to irregularly hired civil servants with five years of public service and made it exceedingly difficult to fire a tenured civil servant. Amendment 19 of 4 June 1998 made it easier to fire tenured civil servants, restricted tenure to those who passed public competitive entrance examinations, and prohibited any civil servant from earning more than the salary of a Supreme Court justice. Amendments 5 to 9, 13, and 36 eliminated most of the Constitution's nationalistic provisions that discouraged or discriminated against foreign investment.

The 1988 Constitution was intended to endure for only five years. It mandated that a plebiscite be held in 1993 to determine whether Brazil should remain a republic or become a constitutional monarchy, and whether it should retain a presidential system or adopt a parliamentary system. In the plebiscite, a majority voted to retain both republicanism and presidentialism. Another provision mandated that the constitutional text be revised by a vote of an absolute majority of the member of the National Congress in 1993. A scandal involving corruption in the congressional budget process delayed this revision until March 1994. More than 17,000 amendments to the Constitution were proposed, but only six were ultimately adopted. The only significant constitutional amendment passed by Congress was Amendment of Revision 1 of 1 March 1994, which created the Emergency Social Fund. This amendment changed the revenue-sharing rules of the 1988 Constitution, transferring an estimated $9 billion from state and local governments to the federal government, but only for fiscal years 1994–1995. The revenue-sharing rules, which transferred substantial portions of federal tax revenues, but not corresponding governmental obligations, to state and local governments, were partially to blame for Brazil's quadruple-digit inflation rates that followed adoption of the 1988 Constitution. These revenue sharing rules have been relaxed by a series of constitutional amendments. Several new federal revenue sources have been created by constitutional amendments, including a very important tax on all bank checks, thereby making it possible for Brazil to continue its successful economic stabilization program.

Despite its many flaws, Brazil's current Constitution actually works. Democratic elections, without complaints of fraud, are regularly held in accordance with its provisions. It has survived triple-digit inflation, a presidential impeachment, election of a populist leftist president, and a long series of governmental corruption scandals. Brazilians no longer express the fear that the Constitution will be overturned by yet another military coup d'ètat. There is little support in Brazil for convening another constituent assembly to draft a new Constitution, but amending the existing Constitution has become the favorite sport of Congress.

See alsoDemocracy .

BIBLIOGRAPHY

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Alves, Francisco de Assis. "Constituições do Brasil." Revista de Direito Constitucional e Ciência Política Special Number (1987), 1-72.

Barbosa Sobrinho, Osório Silva. Constituição Federal Vista Pelo STF. 3a. ed. São Paulo: Editora Juarez De Oliveira, 2001.

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Barroso, Luís Roberto. O Controle de Constitucionalidade no Direito Brasileiro: Exposição Sistemática da Doutrina e Análise Crítica da Jurisprudência, rev. e actualizada. São Paulo: Editora Saraiva, 2006.

Bastos, Celso Ribeiro. Curso de Direito Constitucional. 16a. ed. São Paulo: Celso Basdtos Editora, 2002

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Ferreira Filho, Manoel Gonçalves. "Fundamental Aspects of the 1988 Constitutionalism for a Transitional Society." In A Panorama of Brazilian Law, edited by Jacob Dolinger and Keith S. Rosenn. Coral Gables, FL: North-South Center and Editora Esplanada Ltda., 1992.

James, Herman G. The Constitutional System of Brazil. Washington, DC: Carnegie Institution of Washington, 1923.

Junqueira Filho, Manoel Octaviano. "Constituições do Brasil (Evolução Histórica)." In Enciclopédia Saraiva do Direito. Vol. 18. Coord. R. Limongi França. São Paulo: Saraiva, 1977.

Martínez-Lara, Javier. Building Democracy in Brazil: The Politics of Constitutional Change, 1985–95. New York: St. Martin's Press, 1996.

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Reich, Gary M. "The 1988 Constitution a Decade Later: Ugly Compromises Reconsidered." Journal of Inter-American Studies and World Affairs 40 (Winter 1998), 5-24.

Rosenn, Keith S. "Brazil's New Constitution: An Exercise in Transient Constitutionalism for a Transitional Society." American Journal of Comparative Law 38 (1990), 773-802.

Rosenn, Keith S. "The Federative Republic of Brazil [An Annotated Translation]." In Constitutions of the Countries of the World. Vol. 3., Release 2006-4, edited by Rüdiger Wolfrum and Rainer Grote. Dobbs Ferry, NY: Oceana Publications, 2006.

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                                       Keith S. Rosenn

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