Constitutional Change Through a New Constitutional Text: The Brazilian Transition to Democracy
Among the Latin American countries marked by years of military dictatorship, Brazil stands out as a prominent example of a transition to democracy wherein the timing for change also meant the timing for a new constitution.
After the end of the military dictatorship in 1985, already in 1987 a constituent assembly was established to draft a new constitution to replace the authoritarian Constitution of 1967, with its amendment no 1 of 1969. As a constitutional moment also characterised by the founding of a new democratic moment, the reminiscences of that past still played a significant role in determining how constitutionalism should be interpreted and practised from that moment onwards. The Constituent Assembly of 1987/1988 was thereby the result of a bumpy road towards democracy. Until 1987, the military regime, although having left office in 1985, was relatively successful in controlling how the transition should take place.[643] The motto was ‘safe, slow, and gradual opening’ Democracy, according to this motto, was then a simple achievement after 21 years of military rule, which was responsible for laying the groundwork for this new future.Everything seemed to be heading towards an appeasing transition controlled by the regime and the elites. Frances Hagopian, for example, argued that all the transition took place as a ‘negotiated settlement on the part of the political elites’[644] It was not an effective process of liberalisation and rupture, but rather a ‘series of political pacts'[645] that could best cope with a civil society eager for change and which was increasingly promoting mass protests all over the country, while the military and the elites could not lose privileges and positions. Political bargains[646] characterised this transition, with serious impacts on how Brazilian democracy would evolve thereafter.
According to Hagopian, Brazil would not experience a ‘vibrant democracy, but a perverted one skewed toward the representation of elite interests’,[647] especially in a country that had thus far experienced a frail democratic framework.[648]Still, history might have proven that Hagopian's thesis only gave one side of the story, at least if we look at those events from today's perspective.[649] Naturally, many forms of bargains and political accommodations brought about serious consequences for Brazilian democracy. Nonetheless, the Constituent Assembly of 1987/1988 also did something unprecedented in Brazilian history: it was not framed from above by a group of experts who were representatives of those elites.[650] Instead, it resulted from the work of some democratically elected congressmen (most of them without legal skills),[651] the strong participation of civil society,[652] institutional mechanisms of popular participation and the decentralised dynamics of numerous committees and subcommittees on distinct matters working simultaneously without any preliminary draft of a constitutional text.[653]
Pluralism was visible during these preparatory works, despite the encroachment of some privileged sectors of civil society and the military upon the constituent assembly. It was, to quote Leonardo Barbosa, ‘an authentic polyphony’.[654] While it signalled that the military’s hegemony was in crisis, no longer being able to control the transition, no other leadership or alternative political bloc emerged that could unilaterally control how the game would then be played.[655] President Jose Sarney, a civilian with strong ties to the military,[656] was visibly weak and was not able to prevent society from becoming more actively involved in the constitution-making process. Moreover, despite their intention to control the transition, the military, which left office in 1985, had not previously drafted a document that could bind how the constituent assembly would operate.[657] The ‘intense and influential participation of organized civil society’,[658] the ‘contradictory plurality of actors'[659] was then a feature of the constituent assembly, setting up a scenario of deep indeterminacy towards the future.[660] Both movements - the political bargains and the direct participation of civil society - co-existed in an environment in which the idea of continuity or rupture with the past struggled with each other in building this new democratic founding moment.
The Brazilian democratic founding moment after years of military dictatorship was thereby marked by conflicting interpretations of how the promise and the past should be intertwined with each other from that moment onwards. The idea of pacific transition and not of a rupture with the past gained momentum, especially in the early stages of its procedures.[661] However, such a transition was marked by the growing pluralism of the Constituent Assembly. While the Constituent Assembly opened its proceedings with the Brazilian Supreme Court Justice Moreira Alves saying that ‘by installing this National Constituent Assembly, the final term of the period of transition is reached, whereby, without constitutional rupture and via conciliation, the revolutionary cycle comes to an end’[662] its following proceedings were nonetheless characterised by ‘a decentralized dynamics in more than two dozen theme subcommittees without the guidance of any preliminary draft of a Constitution’.[663] Its discussions and procedural rules were marked by an effort to extend the dialogue to society,[664] while creating some institutional constraints on Congress in order to lessen the risks of a hegemonic bloc controlling its results.[665]
There are some social reasons for this phenomenon. After years of mass protests and public mobilisation, especially from the late 1970s onwards, Brazil was living a special moment of increasing democratic learning and practice. There was a ‘creative and participatory potential that was dammed’[666] only expecting the moment to be released.[667] This participatory potential took place both in the form of popular lobbies and institutional mechanisms at the heart of the Constituent Assembly. Examples as such could be found in the possibility of submitting suggestions, holding public hearings, proposing popular amendments to the Constitution.54 Moreover, the procedures and deliberations of the Constituent Assembly were broadcast nationwide.55 In the end, this paradox of the old regime and those political bargains along with this experience of popular groups dialoguing with the Constituent Assembly drafted the Constitution that cannot be exactly called harmonious or coherent, but is certainly the most dynamic and democratic in Brazilian history.
The ongoing disagreement over continuity and rupture of this constitutional moment was reflected in a constitutional text characterised by many norms that seem unfinished - thereby needing subsequent regulation - or in clearly opposing sides.56 This is naturally a side-effect of a process that aimed at being controlled, but that became quite uncontrolled in the end, where the deep paradoxical nature of the interests involved co-existed with a high degree of indeterminacy. The ‘authentic polyphony'57 of this moment paved the way for drafting a constitutional text marked by its comprehensiveness, with a vast bill of individual and social rights, followed by distinct institutional mechanisms to protect them, whereas many other provisions related to the political system and entrenched benefits were kept virtually untouched.58 Some will argue that, despite this increment of citizenship, Brazil endured, in the end, a ‘ long and highly negotiated democratic transition, marked by a very limited reformism'. 59 Others, in turn, will point out that this living citizenship would push the framers to sign the constitutional text through a ‘renewed idea of legitimacy and representation, which gives rise to a reflection on the very meaning of the principle of popular sovereignty'.60
Despite this insurmountable paradoxical nature of this moment, the simple fact that it gave rise to a new constitution is nevertheless a milestone of a ‘new beginning', which certainly holds a symbolic power over Brazilian society, as a resulted in Law No 6.683/1979; (c) the movement Diretas Ja ( Direct Elections Now) in 1983/1984, which gathered more than one and a half million people all over the country, but whose results were frustrated by Congress. See Paixao (n36) 165; Domingos Leonelli and Dante de Oliveira, Diretas J a: 15 Meses que Abalaram a Ditadura (Record, 2004); Alberto Tosi Rodrigues, Diretas Ja: O Grito Preso na Garganta (Fundacao Perseo Abramo, 2003); Flamarion Maues and Zilah Wendel Abramo, Pela Democracia, contra o Arbitrio: A Oposicao Democratica, do Golpe de 1964 a Campanha das Diretas Ja (Fundacao Perseu Abramo, 2006).
54 See Barbosa (n 21) 230; Carlos Michiles et al, Cidadao Constituinte: A Saga das Emendas Populares (Paz e Terra, 1989).
55Paixao (n 36) 164.
56 See Nobre (n 41) 98. 57Barbosa (n 21) 147.
58For instance, the judiciary in general, and the Brazilian Supreme Court in particular, strongly lobbied to keep many of its privileges untouched. See Andrei Koerner and Ligia Barros de Freitas, ‘O Supremo na Constituinte e a Constituinte no Supremo' (2013) 88 Lua Nova 141. For a broader discussion of other cases, see Edson Teles and Vladimir Pinheiro Safatle, O que Resta da Ditadura (Boitempo Editorial, 2015).
59Nobre (n41) 98.
60Barbosa (n 21) 245.
democratic achievement that reminds us of how we should enshrine its values in our daily lives. Still, all the processes of framing the constitutional text and the experience of that moment, when the controlled past was challenged by the uncontrolled future, yielded a much greater impact upon the very significance of Brazilian constitutionalism. It is a severe undermining of that moment to interpret it overlooking those clashes, dilemmas and, above all, this emerging citizenship. A constitution, after all, is not simply text, although it inscribes much of this temporality in its own words. There is always, especially in paradoxical moments as such, a performative utterance that exceeds the reality or, as Derrida says, there is always ‘this obscurity, this undecidability between, let us say, a performative structure and a constative structure’. [668] When the Brazilian framers viewed themselves in face of this living citizenship, the Constitution had already been substantially transformed. Their signature was thereby deeply affected.[669] A ‘new beginning, although still marked by many permanencies in the text and practices, was born. A new constitution for launching this new moment was therefore not only meaningful because of a text enshrining democratic values, but, above all, because it catalysed the effective practice of these democratic values in the very process of constitution-making.
The paradoxical emergence of Brazilian democratic constitutionalism makes it clear that transitions as such, while not revolutionary, are strong enough to lay the groundwork for a gradual evolutionary process[670] wherein political[671] and economic[672] inclusive institutions become more real. Despite the backlash driven by many actors who feel that their privileges and benefits are in serious jeopardy during this new moment and who will do whatever it takes to keep them untouched, even by unsettling the constitutional system, pluralism - as Brazilian transition proves - helps dissolve and distribute much of their strength, thereby weakening their capacity to twist the institutional framework to serve their exclusive interests.[673] This feature leads to new negotiations and agreements that, little by little, may engender inclusive institutions.[674] By institutionalising mechanisms that foster pluralism, the consequence may also be a progressive gain of stability.[675] Therefore, rather than a radical confrontation, sometimes a strategic move is to narrow the scope and slow down the pace of change, gaining ground to bolster, in the medium to long run, even more pluralism and thereby more stability.
The Brazilian transition to democracy has followed the path of attempting to settle its disputes without confronting its past. This aspect does not mean that Brazilians have not resented their past; yet, by not confronting it, they have laid the groundwork for some serious threats to Brazil's democratic achievements, such as the recent rise of President Jair Bolsonaro, a far-right politician who praises the civil-military dictatorship.[676] Although the new constitution and its founding moment may impose a new posture towards this past, history has proven that whenever a more radical avenue gains momentum, Brazilian institutions manage to place it into a course of action that is less offensive to the status quo. This can bring greater stability and the need to continuously reach compromises, but evidently at the cost of slowing down the pace of some necessary transformations.
Examples of the process of how Brazilian democracy has managed to settle its disputes appear in distinct forms of constitutional change. Tom Ginsburg and James Melton argue that Brazil, along with India and Mexico, has its Constitution amended practically every year, and this may signal ‘the virtue of being frequently changed through internal mechanisms, avoiding the more costly route of a total replacement'.[677] Their thesis is based on cultural grounds, as though in Brazil there is little cultural resistance to amend the Constitution.[678] Still, if cultural reasons play a relevant role in such a phenomenon, the very paradoxical characteristic of Brazilian constitutionalism may explain it even further. The Constitution of 1988 is, after all, the upshot of this complex of interests that flourished through a procedure that moved from a controlled to a relatively uncontrolled transition, where the ‘past' had to negotiate with the ‘new beginning' and where the inherent vulnerability of some of these compromises would demand an ongoing negotiation process in the following years.
Therefore, the Brazilian Constitution of 1988 is a paramount example of a learning process that took place before 1988 and went way beyond that moment.[679] Many of its promises were either not kept or failed to face the challenges of a society that was structurally unequal and still marked by an authoritarian mindset. It is no wonder that the Constitution has been continuously challenged by several attempts to regain control over its meaning and re-signify its comprehensiveness.[680] The natural avenue has been to amend the Constitution, although an empirical examination has proven that most amendments have had little effect on engendering structural changes to the constitutional text.[681] Other avenues, such as attempts to launch fast-track procedures of constitutional change circumventing the formal requirements of constitutional amendment, although repeatedly proposed, have all failed.[682]
Mechanisms of informal amendment to the Constitution[683] have also gained momentum in Brazil,[684] showing how the Constitution has become a gravitational centre of Brazilian social life. No one can deny the significant role the Brazilian Supreme Court plays in the definition of relevant national matters, clearly pointing to a broader interpretation of its authority to areas now seen as part of constitutionalism at large. However, this turning point in the Supreme Court's behaviour is also marked by a contrasting feature of Brazilian constitutionalism.[685] On the one hand, it has actively provided decisions that have fostered equality rights, such as those relating to same-sex unions[686] and quotas for black students in public universities,[687] or that have affected the political system, like the prohibition of corporate campaign contributions.[688] On the other hand, it has steadily acted to maintain the entrenched benefits of some social groups and corporations,[689] which in many respects evidences ‘a form of self-interested hegemonic preservation.[690]
The concurrence of an increasing pluralistic and democratic impetus fostered by this founding moment and a ‘past' stubbornly reacting to more radical reforms is thereby the main feature of Brazilian constitutionalism, which, also because of such a feature, moves backwards in some circumstances as is currently the case with the political scenario in the country. In any case, Brazil has built mechanisms that are somewhat able to direct some of the inevitable tensions and backlashes through institutional channels, and this may explain why the Constitution is frequently formally and informally amended. More structural and radical solutions to the long-standing misfortunes of Brazilian society have normally been transformed into pragmatic actions aimed at fostering some change without, however, affecting entrenched privileges. Yet, the simple fact of having drafted a democratic constitution through legitimate forms of civil participation has brought about a symbolic power which has gradually fostered pluralism. Despite the inevitable resistance of the status quo, such a pluralism has been a relevant driving force behind the gradual rise of inclusive political institutions.[691] Obviously, backlashes, such as the recent impeachment of President Dilma Roussef or the Supreme Court's preservationist role, still occur as the outcome of the conflicting positions of a country marked by long-standing inequalities. Nevertheless, they do not deny the power of that founding moment: a constitutional transition that inscribed in Brazilian history the strength of its pluralism.
III.