BUILDING DEMOCRACY IN BRAZIL

Building Democracy
in Brazil
The Politics of Constitutional Change,
1985-95

Javier Martínez-Lara

in association with
Palgrave Macmillan
 First published in Great Britain 1996 by
MACMILLAN PRESS LTD
Houndmills, Basingstoke, Hampshire RG21 6XS
and London
Companies and representatives
throughout the world

This book is published in the St Antony's Series

General editor: Alex Pravda

A catalogue record for this book is available

from the British Library.
ISBN 978-1-349-24995-4 ISBN 978-1-349-24993-0 (eBook)
DOI 10.1007/978-1-349-24993-0

First published in the United States of America 1996 by

ST. MARTIN'S PRESS, INC.,
Scholarly and Reference Division,
175 Fifth Avenue,
New York, N.Y. 10010
ISBN 978-0-312-16102-6
Library of Congress Cataloging-in-Publication Data
Martínez-Lara, Javier, 1963-
Building democracy in Brazil : the politics of constitutional
change, 1985-95 / Javier Martínez-Lara.
p. cm. - (St Antony's series)
Includes bibliographical references and index.
ISBN 978-0-312-16102-6
1. Brazil-Politics and govemment-1985- 2. Brazil-
-Constitutional history. 3. Democracy-Brazil. I. Title.
II. Series.
JL2431.M35 1996
321.8'0981-dc20 96-21489
CIP
© JavierMartínez-Lara 1996
Softcover reprint of the hardcover 1st edition 1996
All rights reserved. No reproduction, copy or transmission of
this publication may be made without written permission.
No paragraph of this publication may be reproduced, copied or
transmitted save with written permission or in accordance with
the provisions of the Copyright, Designs and Patents Act 1988,
or under the terms of any licence permitting limited copying
issued by the Copyright Licensing Agency, 90 Tottenham Court
Road, London W1P 9HE.
Any person who does any unauthorised act in relation to this
publication may be liable to criminal prosecution and civil
claims for damages.
10 9 8 7 6 5 4 3 2 1
05 04 03 02 01 00 99 98 97 96
For Hikang and Oscar Javier, with love
Contents

List of Tables and Figures viii

Acknowledgements XI

List of Acronyms Xll

Introduction 2

Part I: The Actors

2 The Constitution Under Military Rule:

Government and Opposition 13
2 The Democratic Alliance Coalition and the Process
ofReform 40
3 Political Parties, Interest Groups and Constitutional Issues 62

Part II: The Making of the Constitution

4 The Constitution's Drafting Process, 1987-88 91

5 Presidential versus Parliamentary Government
in the Constituent Process 125
6 The Debate Over the Land Reform Issue in the
Constituent Process 147
7 The New Democratic Order at Work and the
Reform Process of 1993 170
Conclusion 190

Notes 203
Bibliography 223
Index 234

vii
List of Tables and Figures

TABLES

1.1 Representation in the Senate by Party, 1966-82

1.2 Representation in the Chamber of Deputies by Party, 1966-82
1.3 Executive Bills Submitted and Approved, 1967-84
1.4 Legislative Bills Submitted and Approved, 1967-84
1.5 National Vote and Representation in the Senate and the
Chamber of Deputies: ARENA/PDS
1.6 Proportional Elections, 1966-82 (Federal Deputy)
1.7 Majority Elections, 1966-82 (Senators)
2.1 Brazil's Economic Indicators, 1980-84
3.1 Party Distribution in Congress, Following the Elections of
15 November 1986
3.2 Ideological Orientation in Congress According to Folha de
S. Paulo, 19 January 1987
3.3 Ideological Orientation in Congress According to Martins
Rodrigues
3.4 Socioeconomic Status of the Constituent Congress
3.5 Capitalist Class in the Constituent Congress by Sectors of
Activity and Party
3.6 Market Economy vs. State Intervention Orientation of the
Constituent Congress
3. 7 Participation of Foreign Capital in the Constituent Congress
3.8 Land Reform Orientation in the Constituent Congress
4.1 Distribution of Committee Leadership by Party
4.2 Distribution of Subcommittee Leadership by Party
4.3 Selected Issues of the Political Order in the Main Phases of the
Constitution-making Process
4.4 Selected Issues of the Social and Economic Order in the Main
Phases of the Constitution-making Process
4.5 Comparison of Political Ideologies Between the Integration
Committee and the Constituent Assembly
4.6 Change and Continuity of Key Issues in the Brazilian
Constitutional Order
5.1 System of Government in the Main Phases of the
Constitution-making Process
5.2 Vote for Presidentialism (Lucena Amendment) by Party

viii
 List of Tables and Figures IX

6.1 Vote by Party in the Subcommittee for Agriculture, Land

Tenure and Land Reform
6.2 Inclusion of 'Productive Property' for Land Reform Purposes,
Vote by Party
7.1 Party Representation in the Chamber of Deputies and
National Vote ofthe Respective Candidates in the First
Round of the 1989 Presidential Election
7.2 Distribution of Partisan Forces in the Chamber of Deputies,
1983-94
7.3 Distribution of Partisan Forces in the Senate, 1983-94

FIGURES

4.1 The Stages of the Drafting Process

4.2 Organization of Constituent Assembly by Committees
and Subcommittees
Acknowledgements

During the elaboration of this work, I received the help of many persons and
institutions. I would like to thank especially Alan Angell, for his extraordi-
narily generous and encouraging support at every stage of my research. In
Brazil, I am grateful to the people at the Universidade de Brasilia, for their
hospitality and friendship during my stay there, and in particular to Professor
Fleischer and Professor Pedone. My thanks also go to all my friends in
Brasilia and especially to Olinta. In Sao Paulo, my thanks go to Professor
Maria D' Alva, and also to Igor and Marcia. In Oxford, I would like to
acknowledge all my friends who shared with me the 'Oxford experience'
and who helped me, in one way or another, to complete this work. I would
also like to give special thanks to Hikang Yang, who in the process ofthis
work became my wife, for all her limitless and invigorating support.

XI
List of Acronyms

ABI Associ~ao Brasileira de Imprensa (Brazilian Press Association)

ABINEE Associ~ao Brasileira da Industria Electro-Electr6nica (Brazilian
Association Electro-Electronic Industry)
ABRA Associ~ao Brasileira de Refonna Agniria (Brazilian Association
for Land Refonn)
AI-5 Ato Institucional Numero Cinco (Institutional Act No. 5)
ARENA Alian~a Renovadora Nacional (Alliance for National
Renovation)
CGT Central Geral dos Trabalhadores (General Confederation of
Labour)
CLT Consolida~ao das Leis do Trabalho (Consolidated Labour
Code)
CNA Confedera~ao Nacional da Agricultura (National Confederation
of Agriculture)
CNBB Conferencia Nacional dos Bispos do Brasil (National Conference
of Brazilian Bishops)
CNI Confeder~ao Nacional das Industrias (National Confederation
oflndustry)
CNRA Campanha Nacional de Refonna Agniria (National Campaign
for Land Refonn)
CONCLAT Confer~ncia Nacional da Classe Trabalhadora (National
Conference of the Working Class)
CONCLAT Coordinadora Nacional da Classe Trabalhadora (National Co-
ordination of the Working Class)
CONTAG Confedera~ao Nacional dos Trabalhadores da Agricultura
(National Confederation of Agricultural Workers)
COPAG Commissao do Plano de A~ao do Governo (Commission fa-
Government Action Plan)
CPT Commissao Pastoral da Terra (Pastoral Commission for Land)
CUT Central Unica dos Trabalhadores (United Workers' Congress)
DIAP Departamento Intersindical de Assessoria Parlamentar
(Interunion Department of Parliamentary Advisory)
FGTS Fundo de Garantia por Tempo de Servi~o (Time in Service
Guarantee Fund)
FIESP Federa~ao das Industrias do Estado de Sao Paulo (Federation
of Industries of the State of Sao Paulo)
FNLI Frente Nacional pela Livre Iniciativa (National Front for Free
Enterprise)

xii
 List of Acronyms xiii

IMF International Monetary Fund

INCRA Instituto Nacional de Coloniza~ao e Reforma Agniria (National
Institute of Colonization and Agrarian Reform)
MDB Movimento Democnitico Brasileiro (Brazilian Democratic
Movement)
MTRST Movimento dos Trabalhadores Rurais Sem Terra (Movement
of the Landless Rural Workers)
OAB Ordem dos Advogados do Brasil (Brazilian Bar Association)
OCB Organiza~ao das Cooperativas do Brasil (Organization of
Cooperatives of Brazil)
PCB Partido Comunista Brasileiro (Brazilian Communist Party)
PCdoB Partido Comunista do Brasil (Communist Party of Brazil)
PDC Partido Democrata Cristao (Christian Democratic Party)
PDS Partido Democnitico Social (Social Democratic Party)
PDT Partido Democnitico Trabalhista (Democratic Labour Party)
PFL Partido da Frente Liberal (Liberal Front Party)
PL Partido Liberal (Liberal Party)
PMB Partido Municipalista Brasileiro (Brazilian Municipalist Party)
PMDB Partido do Movimento Democnitico Brasileiro (Party of the
Brazilian Democratic Movement)
pp Partido Popular (Popular Party)
PPR Partido Popular Reformista (Popular Reformist Party)
PPS Partido Popular Socialista (Popular Socialist Party)
PRN Partido da Renova~ao Nacional (National Renovation Party)
PSB Partido Socialista Brasileiro (Brazilian Socialist Party)
PSC Partido Social Cristao (Christian Social Party)
PSDB Partido da Social-Democracia Brasileira (Party of the Brazilian
Social Democracy)
PT Partido dos Trabalhadores (Workers' Party)
PTB Partido Trabalhista Brasileiro (Brazilian Labour Party)
SAE Secretaria de Asuntos Estrategicos (Secretariat for Strategic
Affairs)
SNI Servi~o Nacional de Informa~6es (National Intelligence Service)
SRB Sociedade Rural Brasileira (Brazilian Rural Society)
STF Supremo Tribunal Federal (Supreme Court)
UBE Uniao Brasileira de Empresarios (Union of Brazilian
Businessmen)
UDR Uniao Democratica Ruralista (Rural Democratic Union)
USI Uniao Sindical Independente (Independent Union
Confederation)
Introduction

On 5 October 1988, after an unprecedented political exercise in constitution-

making of nearly two years, the Senate and the Chamber of Deputies working
together as a Constituent Assembly, promulgated a new constitution for Brazil.
Including the previous debates and political negotiations, the constitutional
discussion lasted for about four years, during which it was the focal point
of Brazilian political life.
The promulgation of the new constitution was considered to be the
penultimate step towards the culmination of the political-institutional transition
to democracy initiated in 1974. The holding of direct presidential elections
to be followed in late 1989 was expected to conclude finally the transition
stage and inaugurate the process towards democratic consolidation.
However, ten years after the constitutional debate was first introduced into
the national agenda by Tancredo Neves, the constitutional question is still
unsettled. From the beginning, the agreed set of constitutional rules achieved
only partial and provisional character as provisions for further constitutional
discussion were incorporated into the text itself. Yet, with the passage of
time, the unmistakable democratic virtues of the new constitution became
outweighed by its operational defects, contributing to intensify the conflict
over the constitutional make-up of the country. But the planned constitutional
revision of 1993 did little to improve the political consent on the matter and
left fundamental constitutional issues to be resolved at some still later date.
The purpose of this book is to examine the process through which the new
constitution was written. The objective is not to analyse in detail the content
of the constitutional decisions of the assembly. The main focus is rather on
the formal workings and interplay of the political forces during the constitution-
making. However, a broader perspective is taken in order to explore the
evolution of the debate in general and the analysis of the conditions under
which the constitution-making took place. Thus, the primary interest lies in
the form and circumstances of the process rather than in the specific content
or actual effects of the constitutional outcome itself.
There are two main reasons why this approach was adopted. First, the
definition of the mechanism through which the constitution was drafted
involved a political struggle as controversial as the constitutional discussions
and decisions themselves. This affected, of course, the opportunities of the
participants and also had an important impact on the specific characteristics
of the constitutional outcome. Second, the examination of the process itself

2
2 Introduction

reflects a great deal about the real functioning of the system, which the new
constitution is seeking to discontinue to some degree and in some aspects.
The constitution-making differed in many ways from the normal process
oflegislation. It was in many respects an extraordinary process. But perhaps
for the very reason that it was not a normal process, it may be especially
revealing of the basic nature of Brazilian politics and system. It can reveal
more clearly the actual functioning of Congress and its relation to the rest
of the political and institutional elements of the system.
There are four broad questions underlying this work. First, considering
the fact that a great deal of institutional transformation had already occurred
by 1985, the question is why was a wholesale constitutional renewal brought
into the national agenda following the removal of the military from power?
Second, given the apparent difficulties of the constitution-making, the
question is, then, what were the conditions under which the constitutional
discussion took place, and how did these affect the process? Third, how was
the constitution actually written? And finally, what were the sources of the
ongoing constitutional debate, and how had it evolved? The research is
based on primary sources such as documents compiled through archival work
and interviews carried out in Brazil, as well as secondary sources on the
literature of the theme.
The book is divided into two parts. Part I, 'The Actors', concentrates on
the analysis of the institutional and political conditions and the type of
participants which emerged from it. Part II, 'The Making of the Constitution',
is devoted to the examination of the constitution-making process itself. This
introductory section will elaborate some basic theoretical considerations
relevant to the enquiry of this work. These include some issues concerning
one broad question: the meaning and significance which have been attached
to the processes of constitution-making in the transition from authoritarian
rule to democracy.
Chapter 1 will start by reviewing the historical record of constitutional
tinkering and its actual impact upon the key components of the arrangement
during military rule. This will provide us with a general picture of the shape
of the democratic institutions at the end of military rule. It will also examine
the origins and development of the demands for a wholesale constitutional
renewal, and explore the meaning attached to the proposal when it was
incorporated into the national political agenda.
Chapter 2 will explore the institutional, political and economic conditions
which surrounded the constitutional discussion, specifically in regard to the
initial debate on the scope and mechanism of the constitutional renewal. Special
emphasis is put on the examination of the Democratic Alliance coalition.
 Introduction 3

Chapter 3 will look more specifically into the structure and nature of the
partisan forces that emerged from the congressional election of 1986, and
their relation to the constitutional agenda. Given the importance of organized
interest groups in the Brazilian political process, some key groups of social
actors will also be examined in relation to their resource base and particular
constitutional interests.
Chapter 4 will then make a reconstruction of the constitution's drafting
process in 1987-88. It will examine the formal procedural mechanisms and
stages, as well as the political interactions within Congress, and between this
and outside pressures.
Chapters 5 and 6 will present a more detailed examination of the debate
about two particular issues: presidential vs. parliamentary government and
the land reform. Chapter 5 shows the extent and nature of presidential
influence over the process as well as the extent to which short-term
considerations came to shape the decisions of the assembly. Chapter 6
illustrates the level of difficulty in dealing with the very complex issue of
inequality where the dispute and bargaining went down to the level of simple
words. The lack of substantive agreement is well illustrated in the difficult
struggle to find the words that would best embody the guarantee of certain
interests. These two particular issues were selected because of their highly
controversial character during the constitution-writing, as suggested by most
of my interviewees, particularly the general rapporteur of the Constituent
Assembly, Deputy Bernado Cabral.lt should be mentioned, nonetheless, that
the political importance of these two questions was greatly diminished in
the subsequent debates on constitutional issues.
Finally, Chapter 7 will look at the development of the constitutional
discussion in the aftermath of the constitution-making. As mentioned above,
the constituent process did not bring the constitutional discussion to a close.
Thus, after an introductory review of the performance of the new arrangement
and the new constitutional concerns that it brought about, this chapter
examines the plebiscite of 1993 and the constitutional revision.
The importance of this study lies in that it sheds new light on the source
of the difficulties in consolidating a democratic system in Brazil. As I will
discuss later on, in the transition literature, there is a broad scholarly consensus
that a broadly shared agreement over the rules of the game represents the
most important condition for consolidation. Therefore, the analysis of the
process through which such agreement was achieved, or expected to be
achieved, could help us to assess at a deeper level the problems in heading
towards democratic consolidation.
4 Introduction

CONSTITUTIONAL RENEWAL AND DEMOCRACY

During the recent wave of transitions from authoritarian rule to democracy

in Latin America, not all the new democracies opted for a wholesale renewal
of constitutional texts at the onset of redemocratization. For instance,
Argentina, Uruguay and Bolivia returned to their earlier constitutions which
had been either amended or superseded temporarily by the military
governments. Also democratic Chile chose, though with some reluctance,
to retain the constitutional document imposed by General Pinochet after
introducing amendments. Moreover, institutional change was frequently
sought through simpler reforms to lower-level laws such as the political party
and electoral regulations.
By contrast, Brazil opted for elaborating an entire new constitution despite
the fact that it was probably the only case where democratic politics had grown
steadily within the military-sponsored constitutional framework of 1967-69.
Could the Constitution of 1967-69, amended of its authoritarian elements,
have served as the document for a democratic Brazil? What kind of substantive
institutional changes were necessary for the full restoration of democratic
politics at the dismissal of the military from power? How and to what extent
did the Constituent Assembly help to bring them about? Some of the chapters
of this book directly address these specific questions. In the following section
of this introduction, I will deal instead with some specific theoretical
considerations regarding the very complex relationship between constitution-
making and democracy.

Constitutional Change in the Transition

To begin with, it should be mentioned that a study on constitutional change

can imply the examination of two distinctive realities. The difference stems
from the twofold meaning which can be attributed to the notion of 'constitution'.
On the one hand, the term constitution can refer to the written document
which sets out the fundamental principles and rules of a given society. This
document can take many forms -and at times be divorced from practice-
but, where it exists, it invariably represents the keystone of the legal order
which aspires to legitimize modern political authority . 1
On the other hand, the term constitution implies something more than the
simple document called the 'constitution' or the constitutional law. It refers
to the rules and standards outside or beyond the legal regulations which shape
in practice the behaviour of political relations. The connection between the
legal and the political conception of the notion is by no means a straight-
forward one. If a study on constitutional change focuses on the legal meaning
 Introduction 5

of the term, a juridical study is then produced. If, on the contrary, it focuses
on the political meaning, a very different work will be produced. But how
much attention should be paid to one or the other aspect in examining a
regime transition?
In the transition literature, it is assumed that the transition to democracy
entails a process of constitution-making in the sense of setting up the basic
rules which are constitutive of democratic politics. Constitutions in democratic
systems, according to Elster, consist of procedural and substantive regulations. 2
One part of the procedural regulations is concerned directly with the
organization of democracy itself- rules such as those providing for fair and
free elections, free scope for the activities of political parties, pressure
groups, the press, and so on. These are regulations without which democratic
rule itself .cannot exist. There is, however, another part which is more
specifically concerned with imposing certain limits on the democratic
decision-making process. In so far as these regulations are not reducible to
democratic checks and controls, they are better conceived as constitutional
limits. They concern the procedures through which decisions will be made
and the constitution itself will be changed.
But constitutional limits in a democracy can also be substantive. Procedural
limits slow down the process oflegislative change by making it so complicated
and demanding that few proposals will be able to clear the hurdles. By
contrast, substantive constitutional limits simply block the decision-making
by declaring certain changes unconstitutional. In modem constitutions, these
kinds of constitutional limits have been replaced gradually by procedural
limits, but private property is the quintessential case of substantive
constitutional limit.
Between this definition of a constitution and the conception of democracy
that has prevailed in the recent literature on democratization, there is a
considerable overlapping. Democracy is generally understood in procedural
terms. There is no specific set of rules in itself which is said to define
democracy, as it can be organized in many different ways. Yet there is a
broad agreement that, to qualify as democratic, a political system needs to
incorporate certain basic procedural rules: secret balloting, universal adult
suffrage, regular elections, meaningful partisan competition, and associational
recognition and access. 3
Within this conception, the process of democratic transition has been
understood broadly as a sequence of political interactions and calculations
by strategic actors leading to a series of agreements and pacts that eventually
become embodied in some kind of institutional compromise. In Przeworski' s
words, the 'solution to the problem of democratization consists of institutions' ,4
which allows for effective democratic competition, while setting fixed
6 Introduction

parameters to guarantee the protection of some basic interests. In this sense,

the transition to democracy has become an exercise of constitution-making.
The link between them is well emphasized by Bogdanor:
the functioning of the democratic institutions has become intertwined
with working of constitutions to an extent which could hardly have been
imagined twenty or thirty years ago. It has become increasingly the case,
therefore, that an understanding of the role which the constitution plays
in a country's politics is vital to an appreciation of the working of modern
democratic government. 5
Thus, from the perspective of the transition literature, what matters is that a
set of rules conducive to the establishment of democracy is agreed upon.
The questions of how or whether they are to be incorporated formally into
a constitutional document is less of a concern. 6 A formal constitution-making
process is not in itself a necessary condition for the transition to occur or the
binding character of the agreements to operate. The theory suggests that the
basic rules of democracy are not generally the product of a constituent
convention where all the important actors negotiate their political relations.
They are rather the consequence of a gradual development in the course of
transition. For instance, O'Donnell and Schmitter suggest that the transition
consists of a sequence of stages, one of each corresponding to 'a different
pact, or pacts, with a distinctive subset of actors negotiating about a distinctive
cluster of rules' .7
In the same vein, Burton et al. also suggest that what matters for demo-
cratization is the achievement of an 'elite settlement', which need not involve
a formal process of constitution-making. In some cases, they contend, the
enactment of a constitution can be the most straightforward indication that
an elite settlement has been reached, but these frequently do not receive legal
status in any immediate way. 8
Another important issue in the transition literature relates to the conditions
for democratic consolidation. Democratic consolidation has been assessed
from two different perspectives: the short- and the long-term. From the
short-term perspective, the consolidation of democracy is achieved when the
country has reached a certain level of agreement regarding the establishment
of basic democratic rules and procedures. From the long-term perspective,
consolidation means the broad consensual acceptance and irreversibility of
those procedures even in adverse economic situations. This, the literature
emphasizes, will require regime continuity over a substantial span of time.
The stability of the new set of rules will allow them to become better
understood and eventually internalized. 9
 Introduction ~
I

In countries like Brazil, the problem of consolidation entails a tension

between politics and economics. For the acceptance of the fundamental
rules is very much a function of the capacity of the system to address
important economic matters. Substantive social demands, for its magnitude,
tend to clash frequently with the formal democratic procedures and this
obviously makes the consolidation of democracy much more difficult. Thus,
the design of a coherent institutional framework is crucial to ensure the
efficiency of the new system. 10

The Renewal of the Constitutional Document

Since this work is concerned with the formal process of constitution-making,

it seems useful now to look at what this process can mean in the context of
a democratic transition. What are the conditions under which demands for
formal constitutional renewal will be made? To begin with, there are no clear
boundaries as to what belongs to the constitutional document. Each society
develops a different sense of what is properly constitutional and should be
incorporated into the document. Basic rules, which are constitutive of
democratic practice, may be regulated by lower laws which require no
constitutional change in the legal sense. There is no clear distinction between
the political institutions which belong to the formal and explicit constitutional
realm and those that, albeit informal and implicit, might be more relevant
to understanding the workings of the system. Loose constitutional frameworks
designed by one regime may well continue serving when the configuration
of power changes. The ambiguity of this type of constitution can accommodate
varied political realities.
The form of the constitutional texts varies enormously from country to
country. A fully anti-liberal framework will obviously have to be replaced
when a society makes the transition to democracy. Also, the more explicit
and detailed the document is, and the more legalistic the political tradition
is, the less room there will be for informal processes to work, and the more
adaptation will require formal renewal. In general, the less specific the
constitution is, the more it will be able to accommodate social change and
new alignments of political forces. All these variations will help to determine
when and to what extent a change of regime will imply necessarily a change
of constitution.
In their analysis on constitutional change, Banting and Simeon make a
distinction between two different types of formal constitution-making. 11
One is a constitution-making which is aimed at changing the basic operating
principles and institutional forms in an attempt to set up a new political regime.
The other is a constitution-making which is aimed primarily at modernizing
8 Introduction

powers and procedures in order to facilitate policy-making and political and

administrative co-ordination.
Constitution-making processes, which are concerned with the refounding
of new regimes, involve, generally, wholesale constitutional renewal, as
evolutionary or incremental reform is, by definition, excluded. In contrast,
constitution-making processes, which are aimed at tidying up political and
administrative processes, are likely to be piecemeal and incremental. In
these cases, the overall framework of the regime is not in question and the
processing of constitutional proposals is likely to be much more akin to the
normal process of policy-making. The formal demands for constitutional
change in many of the well-established democracies can perhaps fit this case.
It is, perhaps, useful to make a further distinction amongst the frrst category,
between those processes of constitution-making which are aimed at establishing
democratic systems and those which are directed at consolidating and
legalizing authoritarian regimes. Recent examples of the former are the
constituent processes of Spain, Portugal and perhaps Central and Eastern
Europe. Although within a higher degree of legal and institutional continuity,
Brazil's constitution-making process was, of course, oriented towards the
establishment of democracy. By contrast, the Chilean Constitution of 1980
or even the Brazilian Constitution of 1967-69 can be categorized as the
latter type.
These cases of formal constitutional change appear to be deliberate efforts
at helping to bring about, in different ways and in varying degrees, material
changes in the institutional and political practices. In other words, the legal
reforms involved in these formal processes seem important fundamentally
because they are instrumental in helping to affect the political reality and
not just instruments to build a legal system of legitimacy. But constituent
processes, no less than the constitutional texts themselves, may also have
symbolic value. Particularly, wholesale constitutional renewal may be
proposed as instrumental political exercises to enhance legitimacy rather than
as mechanisms to alter the material political reality or to alter it radically.
These can be regarded as cathartic political exercises which do not necessarily
have as their principal purpose to introduce radical legal and institutional
change. At least in its structural and procedural components, the Mexican
Constitution of 1917 did not introduce any significant modification to the
previous institutional setting.
Thus it may be suggested that proposals for the renewal of constitutional
texts may not be motivated solely by the need to operate material institutional
change. Since independence in 1822, Brazil has written seven constitutions:
1824,1891,1934,1937,1946, 1967-69and 1988.Althoughallofthesehave
attempted to affect, in different ways and with varying degrees of effectiveness,
 Introduction 9

the real functioning of power, not all the renewals were considered absolutely
essential for that purpose. For instance, after the collapse of the Estado Novo
in 1945, many proposed a return to the earlier democratic Constitution of
1934 instead of engaging in a new constitution-making process. The legalistic
political tradition of Brazil seems partially to be responsible for the ensuing
need for constitutional renewal.
Another important issue concerns the mechanism through which the
constitutional renewal is undertaken. Banting and Simeon argue that the type
of motivation to engage in constitution-making pre-determines the specific
mechanism of the process. 12 When it concerns a fine-tuning of the political
machinery, the process tends to be 'top-down' and it will be likely to be
conducted as similarly as possible to the normal process of policy-making.
When it involves the reconstituting of a new regime, the process is likely to
be bottom-up and involve pressures for special procedures. Recourse to
alternative channels is usually a sign of weakness or intense internal division
within the dominant elite. Challenging elites are likely to assert the uniqueness
of the constitutional questions and argue for a greater role of special forums.
In most cases, the definition of the forum entails a dilemma. Both democratic
values and the need for legitimacy argue for the inclusion of a wide range
of participants. But, at the same time, under these conditions, negotiations
are more difficult to agree upon.
In the following chapters the meaning which was attached to the proposal
of constitutional renewal in Brazil in 1985 will be examined more closely.
This will reveal whether the proposal was motivated mainly by the need to
build democratic institutions or by any other political purpose, and whether
the process itself facilitated or resulted in more obstacles for democratic
consolidation.
 Part I:
The Actors
1 The Constitution Under Military Rule:
Government and Opposition

One of the most distinctive features of military rule in Brazil was the decision
to preserve some of the basic components of the pre-1964liberal democratic
constitution. The upholding of a constitution with many of the trappings of
liberal democracy did not, however, help to restrain power in any democratic
or legal sense. Written rules and institutional controls were relevant to
regulate political life in as much as they did not pose a real threat to the desire
for power monopoly of the military.
Control over these institutions was maintained through a combination of
two instruments: the periodic exercise of coercive and arbitrary actions of
many different kinds, and the systematic recourse to legal and institutional
changes at many different levels of the arrangement made through the
different forms of arbitrary acts (institutional acts, decrees, and so on) or by
congressional approval via the government majority, which was in turn the
result of previous arbitrary acts.
Taking the period 1964-84 as a whole, the legal and institutional alterations
can be seen as following two broad directions. They were first directed
towards authoritarianism as the military sought to alter the original function
of competitive institutions. From 1974, the direction was shifted towards
the establishment of democratic 'normalcy'. Eventually, this gradual movement
helped the anti-authoritarian opposition to win power within the established
legal-institutional channels. Why, then, was the Constituent Assembly
proposed?
This background chapter will review the process oflegal and institutional
change throughout the period of military rule and its impact upon democratic
institutions, with the view of assessing the conditions of democratic institutions
by the end of the military rule. The first part examines the movement into
authoritarianism and its impact upon Congress, parties and elections. The
second part reviews the basic legal and institutional changes introduced
during the process of the political liberalization. The last part will look at
the factors which led Tancredo Neves to propose a constituent assembly.

ARBITRARINESS AND AUTHORITARIANISM: THE CONSTITUTION

UNDER MILITARY RULE

The period of military rule was initiated without repudiating the existing
democratic constitutional text of 1946. As the process of exceptional rule

13
14 The Actors

went on, several provisions of the document were altered successively both
through the normal amendment procedure and through dictatorial acts in order
to reshape the functioning of the constitutional arrangement and its multiple
separate components in a more authoritarian direction.
On 24 January 1967, a new constitutional text sponsored by Castelo
Branco's government was enacted by Congress in an attempt to establish a
permanent and stable constitutional legality that, without abolishing democratic
forms, incorporated strong authoritarian controls. The Constitution of 1967
aimed at establishing a sort of 'tutelary democracy' with the concentration
of decision-making powers in the hands of the militarized executive. Almost
two years later, the military violated its own legality and granted itself a 'legal'
instrument, the Institutional Act No.5 (Al-5), which empowered the executive
to dictate emergency as well as permanent measures at its own discretion.
Until the end of 1978 when AI-5 was abolished, the country was governed
both by the constitutional rules of the 1967 Constitution and by the successive
arbitrary measures (institutional and complementary acts, decrees, decree-
laws) imposed through AI-5 whenever the former proved insufficient to contain
potential or actual challenges to the military's desire for power monopoly.
Reforms were designed to solve the problems of the moment in an attempt
to keep the opposition out of the decision-making arena rather than disbanding
democratic institutions in toto. 1 Some provisions, like the indirect elections
of state governors, became almost permanent; not because they were part
of the established constitution but because of their recurrent imposition by
arbitrary means. 2
Up to 1974 when Geisel's liberalization policy initiated a movement in
the opposite direction, all the different kinds of institutional reforms were
introduced in order to alter the regular functioning of the established
democratic institutions into authoritarianism. But no serious attempt was made
to implant a new alternative institutional arrangement. The maintenance of
this structure was possible largely because of the discretionary powers
retained by the presidency, which allowed the general president in turn to
reshape the rules of the game at will, and because of the willingness of the
opposition to play the unfair game. Written rules were relevant to regulate
political life in as much as they did not trespass certain limits that the military
expected. In her work on opposition politics, Maria D' Alva Gil Kinzo pointed
out that
The borderline between what was considered acceptable opposition to the
government and defiance of the regime was ill-defined, thus aggravating
the MDB's difficulties in articulating an effective line of opposition. 3
 The Constitution Under Military Rule 15

Reasons of ideological and pragmatic natures have been advanced to explain

why the military rulers chose not to suppress those basic institutional
democratic forms. Several scholars have stressed the importance of the
ideological commitment of the post-1964 military to the Brazilian liberal
tradition that seemed to have as much weight as its commitment to the
doctrine of national security with its clear anti-liberal character.4 The genuine
democratic beliefs of the soft-line castelista faction have very often been
highlighted in the literature. For instance, Skidmore has pointed out that even
the hard-line members of the military 'avoided publicly repudiating the
Brazilian political elite's faith in the liberal idea' .5 AII the five general
presidents who presided over the regime cultivated with varying degrees of
intensity the rhetoric of democracy.
Other reasons of pragmatic nature are related, first, to the need to preserve
Brazil's international image as belonging to the liberal capitalist world, and,
second, to the nature of the military's initial assumption of power which
involved a broad and complex civil-military coalition with a wide range of
diverse and contradictory interests and views. The evaluation of this aspect
of the military regime is not, however, the aim of this section. The aim here
is rather to provide a historical review of the process of legal and institutional
change undertaken by the military.

The Shaping Process

The coup which brought the military to power on 2 April 1964 did not
initiaiJy contemplate an alteration of the established institutional order on a
permanent basis.6 There had been a widespread belief among many politicians
of the left and right that the constitutional system was unworkable. Both
Quadros and Goulart had worked hard to convince congressmen of the
impending need for institutional change to strengthen executive powers. But
the military intervention was seen initialJy as a temporary suspension of the
existing constitutional rules for economic, political and military purposes
rather than for institutional reform objectives. It was rather in the course and
dynamics of the crisis that measures to alter the institutional framework on
a permanent basis were introduced successively. Those measures were
designed to deal with specific problems of the moment and had, therefore,
limited objectives. They were not the product of a complete thought-out
institutional blueprint, though a new constitution was eventually drafted in
1967 to include them aU.7
The First Institutional Act decreed unilateralJy by the self-appointed
Supreme Revolutionary Command on 9 April 1964 granted the military-
executive extensive emergency powers, but it did not abolish the 1946
16 The Actors

Constitution nor alter any of its provisions on a permanent basis. On a

temporary basis, this act decreed two basic types of dispositions: it imposed
severe limitations on the legislative powers of Congress and extended those
of the executive, and it listed a number of dispositions aiming at undertaking
an extensive purge of the undesired elements within the different spheres of
society. 8 However, the return to normal democratic constitutional politics
was set for 31 January 1966 when the constitutional presidential term of office
would expire. The few minor constitutional reforms requested and passed
through Congress during the first months of military rule confirmed the
military's intention to keep the existing constitutional rules as a whole
in place. 9
A number of permanent changes in the institutional structure were,
however, introduced on 27 October 1965 through the Second Institutional
Act as a response to the adverse gubernatorial electoral results. President
Castelo Branco had previously submitted a constitutional amendment to
Congress requesting several of those changes, but the prospects of defeat
convinced him to introduce them unilaterally through executive decree. In
addition to the provisions establishing permanent constitutional changes, the
act included also a number of dispositions to extend the emergency powers
granted to the executive by the previous act for a longer period of time (until
15 March 1967, the end of Castelo Branco's new term of office). 10 The
provisions that sought to establish permanent alteration of the institutional
structure affected three main areas: the executive-legislative relations, the
independence and competence of the judiciary and the representative system.
Regarding the executive-legislative relations, the act introduced three
major alterations. It reduced the number of congressional votes needed to
approve a constitutional amendment from a two-thirds majority to an absolute
majority. It transferred to the executive exclusive legislative initiative in
budgetary matters and in regulation of the armed forces. And finally, it
enabled the president to require any bill sent by him to the Congress to be
considered within 45 days by each house (thus allowing a maximum of 90
days), or, at his discretion, within 30 days for both houses in joint session
for bills considered urgent. Any bill not considered or rejected within the
period specified would automatically become law. This mechanism, known
as decurso de prazo, reduced the law-making powers of Congress
enormously . 11
To undermine the independence and restrict the competence of the judiciary,
the act introduced four major constitutional changes. It increased the number
of Supreme Court justices to 16, to be appointed by the president. It stipulated
that federal judges were also to be appointed by the president. It stated that
political crimes against the state could be tried only by the Supreme Court
 The Constitution Under Military Rule 17

if they were not under the direct jurisdiction ofthe military courts. And finally,
it enabled the military courts to try civilians charged with crimes related to
national security.
On the representative system, two important alterations were imposed.
First, the act established that the president and vice-president of the Republic
were to be elected indirectly by a special Electoral College composed of the
Federal Congress, no longer by direct popular suffrage (the composition of
the Electoral College would suffer several alterations in the future). It also
stipulated that the ballot was to be open and by voice vote. Second, the
Institutional Act abolished all existing political parties but made provisions
for the formation of new ones, according to the stiff conditions laid down
in the Party Statute and Electoral Code of 15 June 1965. The Fourth
Complementary Act decreed on 20 November 1965 established further
regulations for the creation of new political parties.
Through the Third Institutional Act decreed on 5 February 1966, the
military introduced another set of measures. This act established that all state
governors and vice-governors were to be elected indirectly by majority vote
of the state legislatures. It also stipulated that all mayors of state capitals and
other designated 'national security' cities were henceforth to be appointed
by the state governors. Other mayors could still be elected under the existing
system of direct universal suffrage. However, this provision was not
incorporated definitely in the constitutional text but was reissued for all the
subsequent elections of state governors up to 1982.
The Fourth Institutional Act was decreed on 7 December 1966 to reconvene
Congress for an extraordinary session in order to discuss and ratify a new
constitution. The constitutional proposal sent by President Castelo Branco
did not differ substantially from the Constitution of 1946 regarding its basic
institutional format. It reproduced the basic principles and mechanisms of
representative democracy with all the authoritarian reservations that had already
been instituted through Institutional Act No. 2 and its correlated acts and
laws. A few minor institutional alterations like the establishment of the
National Security Council to oversee the defence of internal security were
included but, on the whole, it did not represent a radical shift from what had
been instituted already. It also included a bill of rights which explicitly
supported individual guarantees such as habeas corpus, freedom from invasion
of domicile, the right to defence and trial by jury, rights of association and
freedom of expression.
The new constitution was approved by Congress on 24 January 1967
after 45 days of discussion. According to Castelo Branco's expectations the
new constitution would provide the legal basis for a new era of political
normality and stability. He thought that the institutionalization of the most
18 The Actors

important limitations and controls over the previous institutional arrangement

would forestall future recourse to more arbitrary interventions. Castelo
Branco's institutional and legal changes were not limited to the new
constitution. There were also a number of new laws and executive decrees
intended to shape the political order of post-1967 Brazil. Significant among
them were the anti-strike law of June 1964, the decree-law No. 4341 of 13
June 1964, which created formally the National Intelligence Service (SNI),
the National Security Law and the Press Law of 1967.
Despite the expectations, the military resorted to coercion and arbitrariness
in less than two years after the enactment of the new constitution. On 13
December 1968, Institutional Act No.5 was decreed unilaterally by President
Costae Silva in order to empower 'legally' the executive to dictate emergency
measures at his own discretion. It came as a response to the growing resistance
against the permanency of the military in power led by the Frente Ampla.
In many ways the new act repeated the list of extraordinary powers granted
to the executive in the previous institutional acts to purge the system. 12 The
act did not abolish the I 967 constitutional text nor did it alter directly any
of its clauses. It did, however, empower the president to amend it at will
and, more important, it bore no time limit on its validity. This meant that
the constitutional rules would continue to regulate the political process up
to the point where the political outcomes did not conflict with the wishes of
the military. In other words, constitutional rules would be observed by the
government in so far as they worked as the military expected. The undefined
time limit for the period of exceptional rule meant, in plain language, the
institutionalization of arbitrary government.
Over its ten-year life span, Al-5 was used to carry out selective and
periodical purges. It also served to introduce periodical institutional reforms
in several areas of the arrangement in an attempt to maintain control over
the political process. The first set of reforms decreed under the authority of
AI-5 occurred in October 1969 (presented as the amendment no. I to the
1967 Constitution) and sought to reduce in many ways the liberal elements
of the otherwise authoritarian structure of the 1967 document. For instance,
all offences against national security or the armed forces were put within
the jurisdiction of the Supreme Military Tribunal. In addition to this, the new
National Security Law abolished habeas corpus for political crimes and
gave the military broad powers to arrest and imprison citizens for a long list
of vaguely defined offences against the nation.
In another area, the amendment no. I altered the number of seats in the
Federal Chamber of Deputies from 409 to 310 by changing the method of
allocating federal deputies by state. The new basis was to be the number of
registered voters per state, instead of, as previously, the population per
 The Constitution Under Military Rule 19

state. 13 It also introduced the party fidelity provision to prevent government

allies in the legislatures (federal and state) voting against their own party.
Yet, in mid-November 1971, the military introduced one of the most telling
of reforms: the executive gave itself the power to pass secret decree-laws,
whose texts would not be published in any official register.
Additional but not significant alterations of the institutional structure were
continuously introduced through the AI-5 device up to 1977, under the
liberalizing government of Geisel. Others were also approved by Congress
via the government majority. Those, however, were more specifically targeted
at implementing several limited changes in the electoral rules that directly
or indirectly would affect the electoral chances of the opposition. The last
of these measures was the so-called pacote de novembro (November package)
whereby electoral coalitions were prohibited and voters were obliged to vote
straight ticket for the elections of 1982. In the Brazilian political jargon those
became known as the casuismos eleitorais. The following part of this section
provides a general view of the changes and their impact upon several key
components of the institutional arrangement.

The Control of the National Congress

The military sought to alter the balance of power between the presidency
and the Congress in favour of the former relying upon two methods: the
implementation of institutional reforms of different kinds and the use of
coercive and arbitrary force. Among the latter, the most important measures
consisted of the cancellation of the electoral mandates of 189 congressmen
between 1964 and 1979 14 and the closing down of Congress for three
consecutive times ( 1966, 1968 and 1977). This method for taming Congress
ended in 1978 when Al-5 was revoked.
Institutionally, the presidential power base was expanded by introducing
several kinds of direct and indirect institutional reforms to limit the power
of Congress and by implementing a series of institutional changes within
the structure ofthe executive branch. Among the latter, the most significant
was the creation of the National Intelligence Service (SNI) in June 1964 which
established itself in all state ministries and government agencies. The SNI,
under the direct control of the executive, provided a formidable source
ofpower. 15
As to the Congress itself, institutional reforms involved different types of
measures at different levels. These changes affected three main areas: the
internal organization of Congress, the legislative prerogatives of Congress,
and the organization of the party system in Congress. 16 Regarding the internal
20 The Actors

organization of Congress, the military introduced two major reforms. First,

the terms of office of all members of the Presiding Commission (Mesa),
including the president, and the chairmen of standing committees were
limited to two-year, non-renewable periods in each house of Congress. This
measure was intended to avoid the development of an autonomous
congressional leadership which could pose real threats to the hegemony of
the president. Second, a Joint Budget Committee was created to evaluate
and approve the budget and other bills of a fiscal nature. The intention of
this measure was the speeding-up of the legislative process in those areas
considered important by the executive.
Regarding the legislative prerogatives of Congress, two essential changes
were introduced in order to restrict the law-making capacity of Congress.
First, legislative initiatives on national security and budgetary matters were
placed under the exclusive competence of the executive. The president could
declare a state of emergency and suspend the constitution through an executive
decree, without the approval of Congress. The power to raise and allocate
public expenditure, which had enabled Congress to play a significant role
during the pre-1964 period, was equally curtailed. Congress could only
ratify or reject the budget. Second, the introduction of the legislative
mechanism of decurso de prazo, by which any bill introduced by the executive
would be automatically approved if not considered by Congress within a certain
limited time, restricted the veto powers of Congress on legislation initiated
by the executive. This time-limitation provision legislation could be passed
even in the absence of any congressional activity.
As to the organization of the party system, different measures were
undertaken to help to secure a loyal majority in both houses of Congress. In
the first place, the pre-1964 multiparty system was replaced in 1966 with a
compulsory two-party structure. The expectation was that this formula would
provide the government with a solid and stable parliamentary majority while
allowing a symbolic minority opposition party. The ARENA (Alliance for
National Renovation) pro-government party and the opposition MOB
(Brazilian Democratic Movement) remained in operation until the system
was changed again in 1979. Despite the huge disproportion between votes
and seats, the pro-government party maintained an overwhelming majority
of seats in both houses almost until the end. As shown in Table 1.1 below,
in the Federal Senate, ARENAIPDS (Social Democratic Party) managed to
maintain a comfortable majority of 71.2 per cent of the seats in 1966, 89.4
per cent in 1970, 69.7 per cent in 1974, 62.7 per cent in 1978 and 66.7 per
cent in 1982.
In the Chamber of Deputies the proportion of the ARENA/PDS
representation was less striking (see Table 1.2 below). Nonetheless, in 1966,
 The Constitution Under Military Rule 21

ARENA controlled 67.7 per cent of the seats, 71.9 per cent in 1970, 56 per
cent in 1974 and 55 per cent in 1978. It was only in 1982 that the party lost
its absolute majority by a small margin to set at 49 per cent.

Table 1.1 Representation in the Senate by Party, 1966-82

% Year of Election
Seats 1966 1970 1974 1978 1982

ARENAIPDS 71.2 89.4 69.7 62.7 66.7

MDB/Opp. 28.8 10.6 30.3 37.3 33.3

Source: Adapted from Lamounier ( 1989a:59).

Table 1.2 Representation in the Chamber of Deputies by Party, 1966-82

% Year of Election
Seats 1966 1970 1974 1978 1982

ARENAIPDS 67.7 71.9 56.0 55.0 49.0

MDB/Opp. 32.3 28.1 44.0 45.0 51.0

Source: Adapted from Lamounier (1989a:59).

Yet the party fidelity provision was introduced to guarantee party discipline
after many ARENA members voted against their own party in 1968. This
led later to the institutionalization of the so-called 'leadership vote' in roll-
call voting by which congressional party leaders were granted the power of
voting on behalf of the whole party membership.
In order to provide a general illustration of the law-making role of the
National Congress vis-a-vis the executive under the restrictions outlined above,
we shall consider some figures. Table 1.3 below shows that Congress
approved the overwhelming majority of bills submitted by the executive. In
sharp contrast to the pre-1964 situation, the power of Congress to veto
executive bills virtually disappeared. Wanderley Guilherme dos Santos
demonstrated in an earlier study that the decision-making paralysis of the
pre-1964 Congress, which reached its lowest level in 1963, had affected more
the bills introduced by the executive. 17 He showed also that the trend started
to be dramatically reversed after 1964 when the bills submitted by the
executive secured approval almost at 100 per cent. In the whole 1967-84
period, Congress rejected only seven of the bills submitted by the executive.
Between 1967 and 1978, bills introduced by the executive were approved
by 95 per cent on average. 18 After 1979, Congress was unable to reject any
22 The Actors

bill proposed by the executive but an increasing number of bills started to

be promulgated into law through the mechanism of decurso de prazo or time-
limitation provision rather than through congressional assent. On average
only 91 per cent of these bills were approved on time by Congress and the
remaining 9 per cent had to be issued as decrees. This indicates the
unwillingness or inability of the government majority to support the executive's
agenda as the liberalization process intensified.

Table 1.3 Executive Bills Submitted and Approved, 1967-84

Year Bills Bills % Bills Passed by
submitted passed rejected time limit

1967 72 73 101 2
I. 1968 Ill 102 92 2
1969 5 4 80
1970 49 45 92 2
2. 1971 91 92 101
1972 145 !50 103 2
1973 228 220 96
1974 307 306 99 2
1975 120 114 95
3. 1976 120 104 87 6
1977 137 144 lOS 2 1
1978 141 111 79 4
1979 119 119 100 3
1980 150 150 100 10
4. 1981 116 98 84 20
1982 100 122 122 2
1983 145 123 85 42
1984 149 124 83 42

Note: • Indicates the division of presidential terms: I. Costae Silva and Military Junta
2. Medici; 3. Geisel; 4. Figueiredo.
Source: Adapted from Baaklini (1992:116-25).

Table 1.4 below shows that the initiation capacity of Congress was
significantly curtailed after 1969. It was only after 1974 that the number of
bills introduced by the Senate and the Chamberjumped significantly indicating
a more active Congress. The increase in the number of these bills passed indicated
also a more assertive Congress. The increasing number of partial or total
executive vetoes which amounted to a total of 49 in 1984 indicated that either
Congress was passing legislation which did not have the approval of the
executive, or was amending some of the bills introduced by the executive. 19
 The Constitution Under Military Rule 23

Table 1.4 Legislative Bills Submitted and Approved, 1967-84

Year Bills Bills % Executive
submitted passed vetoes

1967 796 44 5
I. 1968 1020 107 II
1969 37 25 68
1970 236 32 14
2. 1971 480 0 0
1972 673 95 14 1
1973 842 115 14 13
1974 853 92 II 8
3. 1975 2211 127 6 26
1976 2150 126 6 8
1977 1875 119 6 8
1978 1719 91 5 7
1979 3255 204 6 30
1980 2355 175 7 28
4. 1981 2311 149 6 7
1982 1467 158 II 39
1983 3856 325 8 39
1984 2742 381 14 49
Note: • Indicates the division of presidential terms: I. Costae Silva and Military Junta;
2. Medici; 3. Geisel; 4. Figueiredo.
Source: Adapted from Baaklini (1992:116-25).

The participation of the National Congress in the budgetary process was

minimal. After the establishment of the Joint Budget Committee in 1969 to
review the budget, the number of amendments introduced and approved began
°
to decline drastically. 2 For instance, in 1967, Congress introduced 44485
amendments and approved 39 248. In 1973, only 4110 amendments were
introduced and 17 of them were approved, with no implications on the
amounts allocated. 21 Fewer amendments were presented and even fewer of
them were passed in the following years. In any case, due to constitutional
provisions, these amendments did not affect the totals the executive had
presented. Only internal distribution within a particular department or
ministry might have been affected.

The Control of Parties and Elections

As mentioned above, the political party law underwent two major alterations
during the military rule. The first occurred in 1965 when the pre-1964
24 The Actors

multiparty system was abolished and a new set of rules was imposed to establish
a compulsory two-party system. ARENA was created to support the military
government and the MDB to act as a loyal opposition. The two-party structure
remained in operation for only 13 years. 22
In 1979, a restricted multiparty system (no Marxist parties were allowed)
was reinstalled through a constitutional amendment passed by Congress in
order to help to avoid a major defeat of the government forces that the
'straight-jacket' of the two-party structure was inevitably leading to. In
addition to the two existing parties which were regrouped under a new
political label, the new legislation stimulated the creation of four new parties
in 1980. However, this strategy did very little to disintegrate the opposition
party or its vote.
The control imposed by the military upon the electoral processes relied
on the use of coercive actions as well as on a series of legal and institutional
reforms which directly or indirectly affected the electoral chances of the
opposition. Intimidation against opposition candidates during the electoral
campaigns was used extensively, particularly in the period from 1966 to 1973.
Institutional and legal reforms were introduced to alter the overall electing
method in some levels of public office as well as to make minor alterations
in others and the campaign procedures. An example of the latter was the so-
called Lei Fal~iio (Fal9ao Law) of 1976, which imposed stiff restrictions on
radio and television electoral propaganda, and the pacote de novembro of
1982, which prohibited coalitions and imposed the straight ticket. Some of
these modifications were the result of arbitrary acts, but others were approved
by Congress through the government majority.
The presidency of the Republic was maintained as an elective office, but
the direct popular suffrage was eliminated in 1965. The election of the
president of the Republic was henceforth to be made indirectly by majority
vote of an Electoral College. In practice, the role of the Electoral College
was to ratify the informal selection that had previously been made by a group
of military generals and commanders, and then formally nominated by the
convention of the government party. The Electoral Colleges which ratified
Costae Silva in 1966, Medici in 1969 and Geisel in 1973 were integrated
by all the members of the National Congress. For the ratification of Figueiredo
in 1978 and the presidential election of 1985, specially constituted Electoral
Colleges were set up.
Direct elections for state governors were suppressed in 1966. State
governors were elected indirectly by majority vote of state assemblies.
However, this provision was not integrated on a permanent basis into the
constitution or the legal body of electoral rules. The elections of state
governors in 1970, 1974 and 1978 were made indirectly by means of
dictatorial decisions imposed by the incumbent president in order to block
 The Constitution Under Military Rule 25

the opposition party from controlling any state government. It was not until
1982 that the first direct gubernatorial election since 1965 was allowed to
take place, with devastating results for the government party. Executive offices
at the local level were filled in two ways. Mayors of all state capitals and
those municipalities designated national security areas (approximately 107
of them in 1985) were appointed by the state governors starting in 1966. All
other mayors were elected by direct popular suffrage at intervals of every
four years.
Direct elections were held every four years for all legislatures at the three
levels of government: Federal Congress, state assemblies and local councils.
The Federal Senate was integrated by three senators for each state who were
elected in alternate turns of one-third and two-thirds every four years for a
mandate of eight years by the plurality system. In order to help the government
party candidates, the sublegenda provision was adopted in 1966. According
to this provision, a party could present as many as three candidates for a
senator's seat (it also applied to mayors' offices). The votes of the three
candidates were added and the winning candidate was the one who received
most votes from the party that accumulated the most votes. In 1978, the election
of one-third of the Senate was made indirectly by state Electoral Colleges
as a result of the arbitrary measures imposed in 1977.
The government managed to secure the overall majority of seats in the
Senate. Because of the principle of equal representation of the different
states in the Senate and of the high concentration of the opposition vote in
the most populous states of the federation, there existed a dramatic disproportion
between votes and seats which favoured the government party. As Table 1.5
below shows, the percentage of votes obtained nationally by ARENA/PDS
in relation to the percentage of seats controlled by the same party reached
the extraordinary disparity of 45.7 per cent in 1970.

Table 1.5 National Vote and Representation in the Senate and

the Chamber of Deputies: ARENAIPDS

Senate Chamber of Deputies

Year Votes Seats Diff. Votes Seats Diff.
% % % % % %

1966 44.7 71.2 +26.5 50.5 67.7 + 17.2

1970 43.7 89.4 +45.7 48.4 71.9 + 23.5
1974 34.7 69.7 +35.0 40.9 56.0 + 15.1
1978 35.0 62.7 +27.7 40.0 55.0 + 15.0
1982 36.5 66.7 +30.2 36.7 49.0 + 12.3

Source: Reproduced from Lamounier (1989a:59).

26 The Actors

The Chamber of Deputies was integrated by the representatives elected

under the system of open-list proportional representation for a mandate of
four years. Several alterations were introduced regarding the method of
allocating seats among the electoral constituencies. For the elections of 1970
and 1974, the basis to allocate the seats among the constituencies (which
coincided with the boundaries of the states of the federation) was the register
of voters rather than the population (as it had been before). From the election
of1978, the basis of allocation was changed back to population. By introducing
these changes the government expected to affect the electoral chances of the
opposition. However, the major problem regarding the integration of the
Chamber of Deputies was due to the pre-1964 bias of the legislation against
the more densely populated states and in favour of the less populous ones.
This is because the law establishes not only a floor number of deputies per
state, but also a ceiling beyond which the ratio of seats to inhabitants or
registered voters becomes higher.
This meant that, for instance, one deputy from Sao Paulo in 1986 had to
obtain 300 000 votes in order to get a seat in the Chamber of Deputies, while
one deputy from Roraima had to obtain only 9000 votes to get the same seat.23
Because of the geographical distribution of the opposition, its votes were
concentrated in the more urban and industrialized states of the country, the
proportion of votes obtained nationally by the opposition party differed also
significantly from the percentage of seats it obtained in the Chamber of
Deputies.24 As shown in Table 1.5 above, in 1970 the disparity between the
percentage of the national vote obtained by ARENAIPDS and the percentage
of seats it controlled reached 23.5 per cent. The declining tendency of the
ARENAIPDS vote and the increasing one of the opposition (P)MDB (Party
of the Brazilian Democratic Movement) 'in the elections for the Senate and
the Chamber of Deputies since 1966 were not translated into significant
alterations of the balance of power in any of the houses. However, they
functioned as indicators of the degree to which the regime was losing
legitimacy and, in tum, helped to intensify pressures against the regime.

POLmCAL LffiERAUZATION AND INSTITUTIONAL CHANGE

Studies on the Brazilian transition to democracy locate the starting point of

the process in 1974 when the military president, Emesto Geisel, and his chief
ally, General Golbery, the head of the Civil Household, decided to introduce
a series of legal and institutional changes to reform the system in a democratic
direction. However, the series of reforms initiated in 1974 was combined
with another in the opposite direction as well. Thus, some of them were still
 The Constitution Under Military Rule 27

introduced through arbitrary acts, and yet one of the key objectives of the
transition process lay in the gradual elimination of the arbitrary and repressive
character of the regime. Therefore, changes were increasingly introduced
through the government majority in Congress.
This contradictory mix of reform direction reflected to a large extent the
experimental and diffused character of the process. Scholars attempting to
explain the Brazilian transition to democracy have questioned the initial
intentions of the military in 1974. In fact, the political opening initiated by
Geisel did not offer a clear definition regarding the scope and the long-term
objectives of the political reform. After a series of interviews with Geisel
and Golbery, Stepan concluded that the most general goal in 1974 seemed
to be, at the very least, that of stabilizing the regime by reconstituting its
foundations. 25
This apparently did not include the intention to initiate a process of demo-
cratization properly. The objective seemed to have been more limited. It
included specific measures to contain the growing autonomy of the repressive
apparatus by loosening press censorship and softening the levels of dissent
and tension by allowing more flexible electoral participation. 26 A review of
the transition process would indeed reveal an erratic rather than a linear
movement. The restoration of democratic politics in Brazil was noteworthy
for its uncertainties and length. In fact, studies about the transitions from
authoritarian rule have established a distinction between liberalization and
democratization in order to capture the limits of the intended change. 27 It is
not the intention here to trace the precise sequence of events leading to demise
of military rule. This section will rather examine the characteristics of the
main legal and institutional reforms and their impact upon the overall
institutional structure.

The Origins of Liberalization

Bolfvar Lamounier has elaborated a series of analyses to explain the peculiar

political process of the Brazilian transition to democracy. 28 He has argued
that the experience of transition was characterized by three main features.
It was a peaceful and gradual process as well as an opening essentially
carried out through elections. The fact that no sector of the opposition or
any military faction chose to resort to any type of extra-institutional violent
confrontation demonstrates the peaceful character of the transition. From the
start, the initial move was not at all forced by organized pressures from civil
society or any other dramatic factor. 29 Stepan has characterized the Brazilian
transition as a case of redemocratization initiated from within the authoritarian
28 The Actors

regime and, particularly, mainly a case of redemocratization initiated by the

'military-as-government'. 30
The gradual character of the process resulted precisely from institutional
means chosen to carry out the process of decompression. The electoral
competition between government and the opposition became essentially the
institutional mechanism through which the pressures against the dominant
system gradually accumulated, granting first important power positions to
the opposition at local and state levels and eventually reaching the Electoral
College which elected Tancredo Neves to the presidency on 15 January 1985.
Lamounier has developed sophisticated arguments to explain how the
electoral game became a viable and acceptable alternative for both the
military government and the opposition. He has pointed out a series of
calculations on each side which made the electoral process profitable for both
of them. Obviously, the process involved a wide range of interactions outside
the electoral arena. 31 Pressures and protes'ts from a variety of socioeconomic
actors such as the multiple social movements and civic organizations (Brazilian
Bar Association (OAB), Brazilian Press Association (ABI), National
Conference of Brazilian Bishops (CNBB), business organizations, the new
unionism, for example) played a fundamental role in advancing the process,
though not precisely to initiate it. But there operated a reappraisal, sincere
or tactical, of the formal institutions of liberal democracy 32 by the majority
of these actors which moved them to transmit their pressures fundamentally
through the electoral process.
Geisel's liberalization policy, that included less restriction on the right to
contest elections, less censorship and less arbitrary detention, was first
activated during the elections of November 1974 for the Federal Congress
and state legislatures. 33 In contrast to the previous congressional elections
of 1970 when Brasilia resorted to massive intimidation of the electorate and
harassment of the opposition, the government made every effort to guarantee
clean, open and fair elections, allowing all candidates relatively free access
to radio and television for the first time.
The electoral results exceeded even the most optimistic expectation of the
opposition MOB party. As shown earlier (Table 1.2, p. 21), the opposition
almost doubled its representation in the lower house passing from 28 per
cent of seats in 1970 to 44 per cent in 1974. In the Senate, the MOB
representation passed from 10.5 per cent of seats in 1970 to 30 per cent (Table
1.1, p. 21 ). 34 The elections for state legislatures also brought striking reversals
for the official ARENA. The opposition MOB won control of legislatures
in Sao Paulo, Rio Grande do Sui, Rio de Janeiro, Parana, Acre, and Amazonas.
Tables 1.6 and 1.7 below show the extent to which the 1974 elections
represented a turning point in the electoral trends. Following a similar pattern
 The Constitution Under Military Rule 29

in the three legislative bodies (Senate, Chamber of Deputies and state

legislatures), the ARENAIPDS vote showed a declining tendency while the
opposition MDB 's share of the vote moved in the opposite direction starting
in 1974 (taking the entire opposition's vote for 1982). Because of the
compulsory vote, the election of 1970 had resulted in a dramatic increase of
blank and null votes which outweighed the opposition vote in the Chamber
of Deputies by 9 per cent. As well argued by Lamounier, after 1974 the vote
began to be used in a plebiscitarian way.

Table 1.6 Proportional Elections, 1966-82 (Federal Deputy)

Percentage of Vote
1966 1970 1974 1978 1982

ARENAIPDS 50.5 48.4 40.9 40.0 36.7

(P)MDB/Opp. 28.4 21.3 37.8 39.3 48.2
Blank/null 21.0 30.3 21.3 20.7 15.1

Source: Adapted from Lamounier (1989a:58).

Table 1.1 Majority Elections, 1966-82 (Senators)

Percentage of Vote
1966 1970 1974 1978 1982

ARENAIPDS 44.7 43.7 34.7 35.0 36.5

(P)MDB/Opp. 34.2 28.6 50.0 46.4 50.0
Blank/null 21.2 27.7 15.1 18.6 13.5

Source: Adapted from Lamounier ( 1989a:58).

It has been shown before that electoral gains by the opposition were not
translated into effective power positions in the National Congress. In part,
this limited impact of the electoral results upon the decision-making points,
which were anyway largely emptied of real power, facilitated the disposition
of the government to continue the electoral game. Elections, nonetheless,
provided a test of forces and legitimacy. Regressive reactions were applied
accordingly to slow the pace of the change and possibly to avoid any chance
of crossing the threshold from liberalization to redemocratization. 35 The most
dramatic of those regressions was the so-called pacote de abril (April
package) of 1977 imposed dictatorially by President Geisel.
It should also be mentioned that on the eve of the local elections of 1976,
Geisel had requested from its congressional majority a law (known as the
'Fal~ao Law', after the Minister of Justice) to restrict, though not totally
30 The Actors

eliminate, campaign use of radio and television. This, however, was not enough
to prevent the opposition from taking control over some governorships
during the following direct elections scheduled for 1978. There was no
possibility to resort to indirect elections as before, since that would require
a constitutional amendment, and ARENA lacked now the necessary two-
thirds majority in Congress.
Thus, using the dictatorial powers of the Institutional Act No.5, President
Geisel closed the Congress on 1 April 1977 and decreed a set of measures
that became known as the pacote de abril designed both to provide electoral
advantages for ARENA and to contain the veto power of the opposition in
Congress and the Electoral College. It first postponed the return to direct
state gubernatorial elections from 1978 to 1982; it made one-third of the Senate
be elected indirectly in 1978 by special state Electoral Colleges {which were
also to select the governors) in order to secure an ARENA majority in the
Senate;36 federal deputies would be allocated on the basis of population rather
than register votes (as it had been in 1970 and 1974); altered the composition
of the Electoral College that would elect the president of the Republic after
the 1978 elections; and constitutional amendments would henceforth need
only a congressional majority instead of two-thirds as previously. The
incredibly massive and arbitrary nature of this intervention aroused intense
protest from the opposition. Demands for a Constituent Assembly were
strongly voiced. At the end, the opposition chose not to reject the electoral game.

The Abolition of AI-5 and the Amnesty Law

At the end of 1978, President Geisel promoted a set of extensive reforms

which phased out key elements of the authoritarian structure. Through the
eleventh constitutional amendment of 13 October, article 182 of the 1967-69
Constitution was repealed, which effectively eliminated Al-5 and all the
subsequent complementary acts and legislations designed to complete it. The
abolition of AI-5 ended the executive's authority to declare a congressional
recess, remove congressmen, or strip citizens of their political rights. In addition,
the right of habeas corpus for political crimes and the right not to be arrested
without a charge or warrant were restored. Three essential guarantees ofjudicial
independence were also restored: the guarantee of job tenure, and guarantees
that judges would neither be transferred nor have their salaries reduced as a
result of their decisions. Some aspects of AI-5 survived indirectly as the
amendment established a provision for the declaration of a 'state of emergency'.
This new mechanism granted the executive vast new powers which could
be applied without the approval of Congress for a renewable period of 90
days. There were, however, significant gains in the constitutional reform
 The Constitution Under Military Rule 31

package. At the very least, it helped to increase the political costs of an eventual
executive intervention. Additionally, Geisel proposed a revised version of
the National Security Law, which reduced the number of possible crimes
against the state security and softened the penalties.
Another important step was taken by Geisel at the end of 1978. He started
to negotiate an amnesty law, which was not completed until 1979 under the
presidency of Figueiredo. A campaign for amnesty had been mobilizing wide
support since 1975. The final version of the law was approved by Congress
in August 1979 .It made a fairly comprehensive list of cases, which included
the return of all exiles to the country and the restoration of political rights
to all political leaders. Against the criticisms of many, it also included the
pardon to the members of the repressive apparatus who had been involved
in torture.

The Political Party Reform of 1979

The restoration of the multiparty system in 1979 was largely stimulated by

the opinion of many government officials that, in spite of the electoral
regulations imposed in 1977, the opposition was likely to win control of
Congress, the state assemblies, and even many of the municipal governments
in the forthcoming elections. It had, therefore, become necessary to attempt
to divide and fragment the opposition and to reshape the party system.
On the other hand, the idea of introducing a new party legislation was also
advocated by some opposition sectors which were increasingly dissatisfied
with the moderate stance of the excessively heterogeneous MDB. A
considerable number of MDB members, together with other groups from
civil society, were working openly for the creation of new political parties.
By 1979, at least eleven projects for new parties were being discussed. 37
On 19 October 1979, the government finally sent to Congress the long-
awaited project for reform of the party law, and one month later it was
approved. The return of a restricted multiparty system (no Marxist parties
were allowed) stimulated the emergence of four new parties the following
year. The Partido Popular (PP) was founded by dissidents of the extinct
ARENA and moderates of the equally extinct MDB under the leadership of
Magalhaes Pinto and Tancredo Neves respectively, to occupy the liberal-
centre position; the Partido dos Trabalhadores (Workers' Party) (PT)38 was
founded by unionists, intellectuals and church laymen from Sao Paulo under
the leadership of Luis Inacio Lula da Silva, on the left of the existing
ideological spectrum; the Partido Democrtitico Trabalhista (Democratic
Labour Party) (PDT) was founded by Brizola and was defined as the centre-
left alternative with a clear populist profile; the Partido Trabalhista Brasileiro
32 The Actors

(Brazilian Labour Party) (PTB) was founded by Getulio Vargas's

granddaughter I vete Vargas at the inspiration of government political strategist
General Golbery, which took the centre-right position; and finally, the old
officialist ARENA reappeared as The Partido Democrdtico Social (Social
Democratic Party) PDS and the majority of ex-MDB oppositionists regrouped
as the Partido do Movimento Democrdtico Brasileiro (Party of the Brazilian
Democratic Movement) (PMDB).

The 1982 Elections: Loss of Ability to Reform

The last set of legal and institutional measures under the military rule was
introduced through the government majority in Congress before the 1982
election. In conformity to the style of the transition politics, it was a mix of
liberalizing and regressive measures. First, through the constitutional
amendment no. 15 of 19 November 1980, the direct elections for state
governors would be restored starting from 1982 and the indirect election of
the one-third of the Senate (the so-called 'bionic' senators) was abolished
starting from 1986. Second, through the constitutional amendment no. 22
of 29 June 1982, the quorum of two-thirds for the approval of constitutional
amendments was restored and the composition ofthe Electoral College was
altered. The intention of the former provision was to maintain the veto power
of the government party in case of the opposition winning a majority in
Congress after the elections of 1982. The purpose of the latter was obviously
to guarantee a pro-government majority in the presidential election of 1985.39
Yet the very last modification was introduced through the government
majority a few months before the 1982 elections. The new law, which
became known as the pacote de novembro, or November package, imposed
certain electoral regulations. It introduced the straight ticket on voters for
all levels in dispute (councillor, mayor, state and federal deputy, governor
and senator). 40 This provision made the electoral coalition inviable and
forced the opposition forces to compete with each other. One of the
consequences of this measure was the merger of the PP with the PMDB. It
also did much to perpetuate the two-party structure of the vote trends.
The outcome of the elections of November 1982 represented a significant
turning-point in terms of the advance of the democratization process. 41 It
also marked the end of government control over the agenda of legal and
institutional change. In the first place, the election of ten opposition governors,
including three in the most economically powerful states (Sao Paulo, Rio
de Janeiro, Minas Gerais), posed effective political constraints on the
executive's capacity to rule. Second, the government's loss of its absolute
 The Constitution Under Military Rule 33

majority in the Chamber of Deputies destroyed the capacity to introduce

constitutional alterations.
In the Chamber of Deputies, the opposition (combining all four parties-
PMDB, PDT, PTB, PT) outnumbered the PDS by 244 to 235. In the Senate,
the PDS was able to maintain an advantage of 46 to the opposition's 23 due
to the 'bionic' senators.

The Transition to Civilian Rule

The electoral outcome of 1982 raised substantially the capacity of the

opposition with regard to the political-institutional initiative, particularly in
the contest for the presidency of the Republic. According to the constitution,
the presidential succession was to be carried out indirectly by the Electoral
College, where, despite the opposition's majority in the Chamber of Deputies,
the pro-government PDS still commanded an overall majority. After the
alterations of 1980, the Electoral College was integrated by all the members
of the National Congress plus six representatives from the majority party of
each state assembly. This composition gave the PDS an advantage of 38 votes
against the opposition taken all together.
In this context, the PMDB proposed in 1983 a constitutional alteration in
order to restore direct presidential elections in November 1984. Because of
the required two-thirds majority for the approval of constitutional amendments
restored in 1980, none of the forces in either of the houses of Congress had
the numerical power to impose any alteration alone. In order to press the
government's allies to vote for the amendment, the opposition launched a
national campaign in mid-1983. The diretas-ja (direct elections now)
campaign mobilized an impressive popular support never seen before in Brazil.
However, the so-called 'Dante de Oliveira amendment' for direct presidential
elections fell short of the required two-thirds in the Chamber of Deputies
only by 22 votes on 25 Aprill984. Fifty deputies from the PDS backed the
proposal as well. In an attempt to kill the opposition's bill, a few days before
the voting day, President Figueiredo submitted a set of proposals to amend
the constitution which contemplated the restoration of direct presidential
elections for 1988. This initiative was, however, withdrawn before it was
considered by Congress.
The foreseeable difficulties in introducing any alteration to the constitution
had led some members of the opposition to attempt to play under the existing
rules. In fact, since 1982 a group of PMDB politicians commanded by
Roberto Gusmao, Affonso Camargo, Carlos Sant' Anna, Fernando Lyra and
others had started to work for the indirect election of the Minas Gerais
Governor, Tancredo Neves. 42 The idea of this group was to promote a
34 The Actors

candidacy across party lines capable of breaking the hegemony of the

Electoral College. The campaign for the direct presidential elections had
resulted from a compromise between the tancredista group, known as the
Unidade group, and the group of the party president, Ulysses Guimaraes,
known as the travessia group, that initially rejected the idea of a negotiated
transition.
The impact of the diretas-ja campaign and the internal struggle within
the PDS consolidated the dissidence within the government party. Under the
leadership of Aureliano Chaves, Marco Maciel, Antonio Carlos Magalhiies,
Jose Sarney and others, the newly created Liberal Front helped to elect the
Tancredo Neves-Jose Sarney ticket in the Electoral College by an
overwhelming majority of 480 votes out of the total of 686 votes on 15 January
1985. However, the failure of the campaign to restore direct presidential
elections accentuated the desire for institutional change. The victory of
Tancredo Neves was based upon a commitment to undertake an extensive
reorganization of the country's legal and political institutions.

THE OPPOSITION'S DEMANDS FOR A CONSTITUENT ASSEMBLY

Origins: Anti-regime Slogan

The idea of demanding a Constituent Assembly to draw up a new constitution

had been a long-standing proposition of the MDB when it was embraced by
Tancredo Neves. The idea appeared first in 1970 when the opposition party
attempted to formulate a more combative strategy after the huge electoral
defeat of that year. It was put forward by a group of new parliamentarians
known as the 'grupo autentico', who believed it could be a good catalyst
slogan against the increasingly repressive authoritarian regime. The proposal
received very little enthusiasm from the more moderate party leadership, but
its advocates managed to have it included in the party's manifesto- Carta
de Recife- in July 1971. However, it failed to make any impact and 'the
slogan of the National Constituent Assembly was hardly remembered after
its announcement in that manifesto'. 43
The proposition was revived a few years later by some sectors of the party
after the decreeing of the April package of 1977. The idea was to offer the
Constituent Assembly as the MDB 's alternative to the government's policy
of slow and secure liberalization. With the liberalization process already under
way, this time the proposal received more serious consideration and won
the support of other organizations outside the party. In August 1977, the
Brazilian Bar Association (OAB) published a document entitled 'Carta aos
 The Constitution Under Military Rule 35

Brasileiros' advocating a return to the rule of law which, they believed, could
be achieved only through the calling upon a constituent assembly. The
National Conference of Brazilian Bishops (CNBB) published 'Exigencias
Cristiis de uma Ordem Politica' (Christian Requirements for a Political
Order) advocating similar goals. During the national convention of the MDB
of September 1977, the proposal was unanimously endorsed by the party
membership. It was also decided to promote a campaign outside elections
to mobilize public support in favour of the Constituent Assembly. The effort,
however, failed again to meet the expected enthusiasm. Only a few political
demonstrations of very limited political impact were held in support of the
proposal in some state assemblies. As Kinzo remarked: 'Less than two
months after the party's national convention, the campaign had already died
away and the constituent assembly became just one more item in the
MDB's agenda.'44
Demands for a Constituent Assembly continued to appear in all the MDB
(and post-1979 PMDB) documents and became increasingly an important
element of the party's oppositional rhetoric. They were frequently remembered
by some parliamentarians in their Congress speeches. And during the
presidential succession of 1979 when the party nominated General Euler Bentes
as its official candidate, the issue was equally included in the party's platform.
But the effectiveness of the slogan as a means to stimulate wide popular
mobilization and support was hardly of any significance. The restricted
access of the opposition to the mass media imposed by the military was clearly
an important obstacle to any successful popular mobilization based on this
or any other slogan. But the abstract character of the slogan itself was surely
not very helpful to attract the support of the ordinary citizens. Clovis Barros
suggested that the reason for focusing on this particular slogan owed much
to the fact that the opposition political elite was overwhelmingly made up
of lawyers who professed strong faith in the power of law to solve political
problems. 45 Furthermore, the promising hopes of democratization after the
abolition of AI-5 in 1978 did not help much to provide the anti-regime
slogan with any more concrete substance.
In fact, for most of the time, the idea of the Constituent Assembly remained
an abstract concept lacking any concrete demand of substantive constitutional
change. Its meaning was usually associated with the general goal of restoring
democracy and the rule of law. No concrete proposal as to what was to be
reformed by the proposed assembly was advanced before 1982. The very
unfavourable political position of the opposition and its anti-regime rhetoric
might have rendered such a task irrelevant or inappropriate. But the PMDB
itself remained badly divided as to whether the party should recognize the
36 The Actors

general constitutional framework imposed by the military or whether it

should reject in toto any kind of constitution produced by the post-1964 regime.
Only in 1982 did the party become more specific about the goals of
constitutional and institutional change, which the party claimed could be
achieved only through the convocation of a constituent assembly. In 'Esperanfa
e Mudanfa: Uma proposta de Governo para o Brasil' (Hope and Change:
A proposal for Government in Brazi1)46 the PMDB demanded the abolition
of all laws that obstructed the full restoration of fundamental civil and
political rights. It proposed the enfranchisement of illiterates, the restoration
of direct elections for president and mayors of city capitals, the introduction
of the legislative initiative, the plebiscite and the referendum as well as reforms
in the party legislation to guarantee more freedom for the organization of
political parties, public financing and access to the media. It also requested
the restoration of the classical prerogatives to Congress and its modernization
as well as guarantees for an independent judiciary. It equally proposed the
strengthening of federalism through an extensive fiscal reform, the creation
of advisory councils for public policy at the three levels of government, and
the autonomy of labour organization. There was no mention of the question
of the armed forces or the parliamentarianism issue. But the main concerns
of the document were by far the more substantive questions of social and
economic character.

Opposition's Victory: The Symbolic Break

The electoral victories of 1982 changed dramatically the relative political

strength of the opposition. The election of ten opposition governors and the
government's loss of its absolute majority in the Chamber of Deputies
provided enormous potential to contest the presidential succession of 1985.
During the succession process the question of the Constituent Assembly moved
from the periphery towards the centre of political debate at the end of
the episode.
In the beginning, the decision to launch a national campaign for the re-
establishment of universal suffrage for the president of the Republic through
a PMDB-sponsored constitutional amendment received priority over the
demands for an overall constitutional renewal. The diretas-ja campaign
launched in 1983 naturally weakened the more abstract and unrealistic slogan
of the Constituent Assembly. Under this new slogan, the PMDB and the rest
of the opposition parties mobilized thousands of people on a scale never seen
in Brazil before.
But the question of the Constituent Assembly did not completely disappear
from the PMDB 's discourse. The party's president and most likely candidate
 The Constitution Under Military Rule 37

for the direct election, Ulysses Guimaraes, always had space to proclaim his
commitment to the Constituent Assembly. He constantly declared that the
'Diretas-ja was the preceding [stage] to the Constituent Assembly in 1986. ' 47
He pointed out later in an interview that 'the Constituent Assembly was beyond
question. It was a fundamental commitment of the PMDB and part of the
Brazilian tradition whenever there had been a regime change.' 48
Thus the long-standing commitment of the PMDB and the historical
tradition of Brazil seemed to be important factors in opting for a full
constitutional renewal at the outset of civilian rule under any circumstances
in which it would be brought about.
However, another set of interacting factors during the presidential succession
decisively reinforced the quest for a full constitutional renewal. The failure
of the campaign for direct presidential elections brought about a significant
shift in the importance of the proposal for a Constituent Assembly. The idea
became now a central issue in the political rhetoric of the presidential
candidate for the indirect election, Tancredo Neves. During his campaign
in the second half of 1984, Neves promoted the idea that a Constituent
Assembly was necessary to achieve the institutional changes required to
conclude the transition to democracy .49
In the context of the 1984 presidential succession, the promotion of the
Constituent Assembly by Tancredo Neves was motivated not only as an
instrumental means for the pwpose of undertaking institutional reform, it
also implied other types of political objectives: as a means to maintain the
consensus among the opposition bloc for the indirect election and to reinforce
the legitimacy of the new regime after the indirect election. In the context
of institutional continuity, the issue was an important political resource to
accommodate the high expectations of the more radical sectors of the
opposition and hence to secure their vote. In this way, it also offered the
opportunity to postpone the opposition's own political divisions regarding
the limits and scope of the democratization process. The high popular
expectations generated by the diretas-ja were also somehow driven towards
some diffused promise in the future. More concrete proposals or a definition
for a simple constitutional amendment to the existing constitution would have
been unacceptable to those who expected a more radical political change
which would in tum precipitate the confrontation within the opposition.
In the early stages of the negotiations for the indirect presidential election
undertaken by a group ofPMDB politicians (known as the Unidade group)
in early 1983, the divisions within the PMDB had been accentuated. The
idea of a negotiated transition seemed unacceptable to many sectors of
PMDB parliamentarians and other opposition members. Many of them
believed that a negotiated transition would hinder the more important
38 The Actors

aspirations for profound and radical change. An abstract commitment to the

Constituent Assembly seemed to be an acceptable guarantee for those who
kept high expectations. The constituent assembly was seen as a guarantee
that the indirect election would not have demobilizing effects. PMDB Senator
Mario Covas stated that the Constituent Assembly was proposed because 'it
would be the motor to stimulate the participation of society in politics'. 50 In
a similar line of argument, PT' s member Helio Bicudo asserted that 'the passing
of amendments by two-thirds would reduce enormously the possibility of
introducing essential reforms for society'. 51
The 'Commitment to the Nation' manifesto, which made official the
alliance between the PMDB and the Liberal Front on 7 August 1984, placed
special emphasis on the need to organize a Constituent Assembly. But the
agenda of institutional reform outlined in that document contained only four
items: (i) the restoration of direct elections for president and all mayors; (ii)
the restoration of the independence of the legislative and judiciary powers;
(iii) the strengthening of federalism; (iv) the reform of the party legislation.
The Liberal Front leader, Marco Maciel, recalled in an interview that:
the issue of the Constituent Assembly was accepted by the Liberal Front
as part of the mutual concessions made during the negotiations with the
PMDB. I did not think that a Constituent Assembly was necessary.
Tancredo Neves himself did not believe it was necessary either. A simple
constitutional reform would have been more appropriate and faster. 52
Some analysts have pointed out that Tancredo Neves's commitment to a
Constituent Assembly was made primarily because of its legitimacy effects.
Monclaire argues that, before anything else, the proposal of a Constituent
Assembly was for Neves an important and useful political tool of strong
symbolic value to signify a break with the past and to emphasize the
inauguration of the new era within a context of institutional continuity and
high political expectations.53 Lamounier also argues that the primary function
of the Constituent Assembly was to reinforce the legitimacy of the new regime
and, only secondarily, to modernize the institutional structure of the country. 54
A high profile political act such as a constituent process would be functional
to convince doubters that the democratic break with the past had been
accomplished. A simple constitutional amendment could not produce the same
kind of political effect. 55

CONCLUSION

The gradual restoration of democratic politics and the eventual breakdown

of military rule by institutional means suggested that a full constitutional
 The Constitution Under Military Rule 39

renewal would not be absolutely necessary. In principle, the Constitution of

1967-69 could have been amended to eliminate the remaining authoritarian
elements and could have been retained as the document for a democratic
Brazil. But a commitment to call upon a Constituent Assembly to write a
new constitution was a central element of Tan credo Neves's platform.
The consensus on the need to replace the document of the military regime
with a new constitution was fundamentally determined by a set of factors
of political character, rather than by the institutional imperatives of re-
democratization. The long-standing commitment of the PMDB and Brazil's
own political tradition first brought the issue on to the table of discussion.
This proposal was reinforced by another set of factors resulting from the
political context in which the presidential succession was processed: the need
t<r secure the unity of the opposition bloc for the indirect election as well as
to have a symbolic ritual to signify a break with the past in the absence of
an institutional rupture.
With Tancredo Neves in power, the question of the constitutional renewal
was expected to be processed in a more stable and predictable manner. It
was expected largely to be a formality to ratify the 'negotiated agreements'
and to a lesser degree to modernize the power and administrative structures
of the state. However, as will be examined in the next chapter, his substitution
by Vice-president-elect Jose Sarney made the issue take a very different turn.
2 The Democratic Alliance Coalition and
the Process of Reform

The formation of the Democratic Alliance coalition paved the way for the
victory of Tancredo Neves to the presidency of the Republic on 15 January
1985 and marked the end of the Brazilian authoritarian regime. In constructing
the new democratic order which, in the case of Brazil, involved not only
questions of a political character but also strong reform promises of a social
and economic nature, the coalition would prove much less successful. This
chapter will argue that the structural basis of the coalition and the programmatic
terms under which it was organized provided extremely difficult instruments
with which to accomplish the reform process, once it was transformed into
a governing coalition.
The expectation was that the personal leadership of Tancredo Neves
would be able to overcome the structural weaknesses of the coalition and
guarantee the implementation of the New Republic's extensive agenda of
reform. But his fatal illness on the very eve of his inauguration did not allow
this expectation to be tested. The New Republic was inaugurated in the midst
of national political trauma and deep confusion. The Democratic Alliance
failed to gain substance and remained deeply divided by internal conflicts,
which naturally affected the reform process.
This chapter starts by examining the content and terms of the agenda of
the Democratic Alliance's New Republic. It then provides a structural profile
of the Democratic Alliance and reviews the internal dynamics of the coalition's
first years in office. The final part will analyse the initiatives and discussions
regarding the agenda of the institutional reform.

THE AGENDA OF THE DEMOCRATIC ALLIANCE'S NEW REPUBLIC

The Programme of Tancredo Neves

The conditions in which Tancredo Neves decided to build the Democratic

Alliance coalition to take him to power imposed particular characteristics
regarding the formulation of his platform. The IS-point agreement of the
Democratic Alliance's manifesto and his promises for uncompromising
reform promoted during his campaign consisted of an extensive collection
of diverse policy issues of different natures. The hardest parts, involving the

40
 The Democratic Alliance Coalition 41

arrangement of priorities, the instruments with which to put them all into
effect and the timetable, were left virtually untouched.
The 'Commitment to the Nation' manifesto which gave official birth to
the Democratic Alliance on 7 August 1984 enumerated the main policy
concerns ofTancredo Neves's electoral campaign. It listed five different points
regarding the restoration of democratic institutions. 1 These included the
restoration of direct suffrage for the president of the Republic and all mayors
of city capitals; the convocation of a Constituent Assembly; the restoration
of independence for the Legislative and the Judiciary; the strengthening of
the federation and the effective financial and political autonomy of states
and municipalities; and the reform of the electoral legislation to allow the
formation of new parties.
As for the economic area, the manifesto enumerated seven different policy
issues: the resumption of economic growth; the rescheduling of the foreign
debt; the fight against inflation; tax reform; correction of regional inequalities;
debureaucratization of decision-making; and the support of free enterprise
with special treatment for the national and small- to medium-sized firms.
Regarding social policy concerns, four questions were addressed: the
correction of income inequalities; emergency measures against hunger and
unemployment; the revision of wage policy to eliminate the process of wage
containment; and the guarantee of freedom and autonomy of labour
organization. One more point was included in the manifesto making reference
to the principles that would orient foreign policy. The document also contained
an explicit reference to the question of the land reform, of which Tancredo
Neves had widely promised to implement a long-range programme through
the application of the estatuto da terra.
The Democratic Alliance's agreement did not include provisions or guiding
principles to help to define in the future what the order of priorities would
be, how the extent and timetable would be determined, and how the
unsystematic collection of policy concerns would be arranged into a coherent
plan of action. In this respect, the position ofTancredo Neves was characterized
by inconsistency, ambiguity and omission. For instance, his rhetoric about
economic policy registered contradictory statements between reformist and
conservative orientations. For the sectors on the left, he promised to subordinate
the obligations of the foreign debt and the fight against inflation to the prior
need of preserving economic growth, creating new jobs and improving the
general welfare of the population. For the conservative sectors and the foreign
creditors, he had economic proposals with a clear orthodox profile, which
contradicted his promises to the left. 2 In relation to the agenda of institutional
reform, his campaign rhetoric consisted of little more than his commitment
42 The Actors

to call upon a Constituent Assembly to write a new constitution. The questions

regarding how, when, and who would do the job were left unspoken.
The all-encompassing character of the platform reflected the broad range
of interests and views involved in the anti-authoritarian coalition led by
Tancredo Neves. Its abstract and incoherent character responded to the need
of subordinating the differences regarding the future, to the prior goal of
demolishing the authoritarian regime of the past. It was deliberately formulated
in those terms as a tactical measure to obtain the consensus within the
opposition forces and between these and the Liberal Front to bring about the
collapse of the military regime. 3 For most of the PMDB-led opposition, it
was the defeat of the military government that took priority over the assertion
of internal differences that a more coherent and concrete programme would
entail. Once the regime transition was accomplished, there would be time
to talk about differences. The general perception was that the assertion of
such differences during the transition itself was not only premature but
actually detrimental to democratization. This position contrasted only with
that of the PT, which refused to endorse the candidacy ofTancredo Neves,
in the belief that the whole point of the transition consisted not only in
achieving the collapse of the military regime but also in doing it in such a
way as to create the conditions for decisive political action afterwards. 4
By helping to subsume differences, the type of platform designed by
Tancredo Neves and his Democratic Alliance coalition contributed to conduct
him to victory on 15 January 1985 and to restore civilian government. But
it also imposed important technical and political constraints to help him to
deliver his promises once he came to power. The expectation was that, by
virtue of his conciliatory skills and high political credibility, he would be
able to formulate a coherent and concrete plan for governmental action and
secure at the same time the support of the heterogeneous coalition necessary
to implement his extensive reform project. In this sense, the programme of
the New Republic appeared as a national project for Tancredo Neves
personally in which political parties would play only a secondary role. How
the differences were actually sorted out is one of the main concerns of this
book. Before going into this question, the following sections examine Neves's
plans in three specific areas. 5

Inflation Stabilization and Economic Growth

By the end of 1984, the economy was in a relatively good shape compared
to the previous years. As shown in Table 2.1 below, the economy had
recovered from its long and severe period of recession that started in 1981.
Led by the incredible performance of exports, the GDP growth rate reached
 The Democratic Alliance Coalition 43

5. 7 per cent that year. The external adjustment crisis also had been temporarily
resolved due to the huge trade surplus of US $13 billion generated that year.
This allowed all the debt service arrears to be paid and increased the foreign
exchange reserves to over US $10 billion.

Table 2.1 Brazil's Economic Indicators, 1980-84

Year Change in Inflation Current Foreign

GDP (%) Account Debt
(%) ($mil.) ($mil.)

1980 9.1 109.2 -12807 64244

1981 -3.4 113.0 -11734 73963
1982 0.9 94.0 -16311 85364
1983 -2.5 164.0 -6837 93556
1984 5.7 232.0 45 102039

Source: Fishlow and Cardoso (1990).

This relatively favourable situation of the economy did not mean that the
crisis was over or that a path of sustainable growth had been definitely
secured.6 The fragility of the observed economic recovery was demonstrated
by two important indicators: the magnitude of the external indebtedness and
the acceleration of inflation. By the end of 1984, the foreign debt had reached
over US $102 billion. Despite the capacity of the country to generate large
trade surpluses, the stability of the current account seemed extremely
precarious. Without an extension of amortization, there was no guarantee
the country would continue to meet its financial obligations. The government
had to depend on the negotiations with the international banks to guarantee
the stability of the balance of payments. This, of course, imposed serious
constraints on economic policy choices. The failure to meet the targets of
the seventh 'letter of intent' of the IMF (International Monetary Fund)
questioned seriously the continuity of capital flows. In addition, the surplus
of trade balance was far from being guaranteed as imports could not be
compressed any longer and the international prospects for export expansion
did not seem very promising.
The rate of inflation had continued its accelerating process, reaching over
200 per cent in 1984. This was an alarming figure which implied the risk of
losing control over the inflationary process, with the consequent impact on
the monetary system and economic growth itself. Other pressing problems
concerned the instability of the financial sector and the public sector deficit.
By the end of 1984, banks were charging an interest rate above 30 per cent
44 The Actors

a year over inflation for loans. This made the productive investment inviable
and posed difficulties for the reduction of the public deficit and therefore of
inflation. The imbalance of the fiscal deficit was on the rise. Despite the
economic recovery and the increase in taxes, the fiscal revenues registered
a decline for the third consecutive year. The increasing level of spending on
the interest to the public debt, combined with the difficulties of increasing
fiscal revenues threatened the state's financial capacity. In addition to these
problems of an essentially economic nature, unemployment and demands
for wage increases also formed part of the economic picture by the time
Tancredo Neves was elected by the Electoral College.
In this context, Tancredo Neves intended to define his economic programme
and integrate his economic team. Many of the ambiguities and inconsisten-
cies of the pre-election campaign were still reproduced. On the one hand,
he started to announce his intention of stimulating the negotiation of a 'social
pact' to control inflation. On the other hand, he nominated his nephew,
Francisco Domelles, a well-known orthodox economist, as his spokesman
to the foreign creditors and departing administration. To elaborate his
economic plan, he also created the 'Commissao do Plano de Arao do
Govemo' (Commission for Government Action Plan) (COPAG) headed by
Jose Serra and other opposition economists but it included also the participation
of some members of ex-PDS dissidence. The main characteristic of the plan
was its rejection of the orthodox analysis of the economy. It proposed a
modification in the terms of the negotiations ofthe foreign debt and a strategy
for economic growth through the expansion of public spending, a tax reform
and the reduction of interest rates?
The final integration of his economic cabinet comprised both orthodox
and heterodox tendencies. For the Ministry of Finance and the Central Bank,
two orthodox economists were put in charge: Francisco Dornelles and
Antonio Carlos Legruber. For the Planning Ministry, a neo-Keynesian
economist from Sao Paulo was appointed: Joao Sayad. According to some
political analysts, Tancredo would try to encourage the negotiation of a
'social pact' in the first attempt. If this failed, the combination of his economic
team indicated that he would follow an orthodox programme of inflation
stabilization based on the suppression of fiscal deficit and a strict monetary
policy in the initial stage. The presence of Sayad was the piece which
guaranteed that a programme of economic stimulation would be put into effect
in the second stage. 8
With the ascension of Jose Sarney to the presidency, calls for a social pact
would disappear, giving way initially to an economic policy that combined
highly orthodox principles with major concessions to heterodox ideas under
the direction of Dornelles.
 The Democratic Alliance Coalition 45

Redistribution

In addition to the issues of inflation stabilization and economic growth, the

so-called payment of the 'social debt' constituted another important concern
of the coalition led by Tancredo Neves. In fact, the high rates of economic
growth achieved during the years of the 'economic miracle' had accentuated
rather than diminished income inequalities. Industrial growth oriented towards
a predominant} y middle-class market, high rates of population growth, and
the insufficiency of investment in basic welfare services contributed to
maintain extreme inequalities and to perpetuate the structure of absolute mass
poverty which prevailed in the Northeast and in the outskirts of all major
cities. The concentration of income was still growing at the end of the 1970s.
The share of total income by the lowest 20 per cent of the economically active
population had gone down from 3.9 per cent in 1960 to 3.4 per cent in 1970,
and to 2.8 per cent in 1980; while the share ofthe top 10 per cent went up
from 39.6 per cent to 46.7 per cent, and to 50.9 per cent respectively. 9
For an important segment of the opposition, one of the main determinants
of the income differentials was associated with the pattern ofland appropriation
inherited from the past. Concentration of the landed wealth and the use of
the best land for producing export commodities had been the major 'push'
factors behind the enormous supply of cheap labour constantly flocking to
the cities. Tancredo Neves promised to undertake a long-range land reform
project by enforcing the estatuto da terra inherited from the military. He did
not advance any concrete plan of action, but his nomination of Nelson
Ribeiro, a long-time supporter of land reform, to the Ministry of Agrarian
Reform led many to trust his promise.
The appointment of Almir Pazzianoto, a pro-labour leader, to the head of
the Ministry of Labour was also regarded as an indication that Tancredo Neves
intended to fulfil his promise to put an end to the wage containment policies,
through which income distribution could be improved (although it was never
clear how this would be made compatible with the control of inflation).
According to press accounts, Tancredo Neves was also considering the idea
of launching an emergency programme of social assistance to alleviate
extreme poverty. There would be, for example, a 'milk programme' directed
towards the groups known to have a desperate nutritional deficit. The presence
of W aldir Pires in the Ministry of Welfare was interpreted as a clear sign of
his willingness to undertake this programme.

Restoration of Democratic Institutions

The full restoration of democratic institutions was the most consensual and
explicit goal of the movement behind Tancredo Neves. His commitment to
46 The Actors

call upon a Constituent Assembly to write a new constitution was intended

to undertake this task. There were, however, some ambiguities and uncertainties
regarding the definition of how and who would be in charge of writing the
new constitution as well as the concrete agenda of reform.
As to the first question concerning the definition of how and who would
be in charge of writing the new constitution, the manifesto of the Democratic
Alliance was silent. It mentioned only that the Constituent Assembly should
meet in 1986 but made no specification regarding the conditions and terms
under which it would operate. Confronted with this question by some sectors
of the left during his campaign, Tancredo Neves refused to provide specific
details. 10 As his inauguration approached, Tancredo made it public that he
intended to create a commission to formulate the constitutional project which
would then be sent to Congress for ratification. It was believed that he had
a list of 15 to 20 names to be nominated formally in his inauguration speech
to integrate the commission. 11
The second problem was related to the agenda of the institutional reform.
The manifesto of the Alliance made explicit reference to four specific
institutional points: the restoration of direct universal suffrage for the president
of the Republic and all mayors of city capitals; the restoration of independence
for the legislative and judiciary powers; financial and political autonomy for
states and municipalities to strengthen federalism; and the reform of electoral
and party legislation to allow the formation of new parties. During his
campaign, Neves repeated the same type of issues as part of his proposal to
promote the institutional reorganization of the country, which included the
question of parliamentarian ism as well. But it was not clear whether those
points would make up the whole agenda of the Constituent Assembly or
whether they would be implemented before the constitutional discussion.
The long struggle against the authoritarian regime had induced the
opposition- from the liberals to the left- to an effective reappraisal of the
importance of separating the procedural and the substantive dimensions of
democracy. Foreign and national academic debates about democratization
insisted on the importance of establishing a 'political democracy' as a prior
and desirable goal before heading towards what was called 'socioeconomic
and cultural democratization'. In Brazil, the well-known work of Francisco
Weffort, Por Que Democracia?, epitomized this point. 12
But the line separating the procedural from the substantive aspects of
democracy was not entirely clear to many real political actors. It was an open
question how much of the desired social and economic change would be
channelled through ordinary legislation or through the new constitution, if
Tancredo failed to deliver his promises. In addition, even within the boundaries
 The Democratic Alliance Coalition 47

of what can be called procedural democracy, there were competing views

as to what should be the specific model for Brazilian democracy, which would
become apparent as the process went on. An increasing current of opinion
considered the pre-1964 arrangement elitist and out of date. The four points
of the Alliance's manifesto were only a very general basis in view of the
agenda of the future institutional reform.

THE FRAGll..ITY OF THE DEMOCRATIC ALLIANCE COALffiON

The Institutional and Ideological Basis

The Democratic Alliance consisted of the PMDB and the PFL (Liberal Front
Party, which consisted of dissidents from the PDS). As it was initially
integrated in January 1985, the predominance of the PMDB was reflected
in both the executive and the legislative branches of government. Of the 21
non-military cabinet ministers appointed by Tancredo Neves, only four of
them were nominees from the PFL. With the disintegration of the PDS
witl]in the Chamber and Senate in February 1985, the PMDB achieved a
simple majority in the Chamber and the PMDB-PFL alliance shared in
equal terms and absolute majority in the Senate. 13
Since its foundation as the MOB in 1966, the PMDB had been able to
consolidate itself as an opposition front against the military-authoritarian
regime. Measured solely by the percentage of the national vote for Chamber
of Deputies and the Senate, the PMDB had become the largest party in
Brazil by 1982. Because of the institutional mediation in the conversion of
votes into seats, its electoral force was not reflected into parliamentary
strength. 14 But with the disintegration of the PDS, it became the largest party
in the Chamber of Deputies.
However, the numerical strength of the PMDB had been achieved at the
expense of its internal political and ideological coherence. The plebiscitarian
logic of the electoral process developed under the authoritarian structure did
not help to create a politically and ideologically differentiated party structure.
It was mainly the authoritarian versus democratic cleavage which came to
define the partisan structure. During its 19-year status as the major opposition
force, the PMDB came to comprise a wide range of political and ideological
orientations. Its membership varied from conservatives, liberals, social
democrats, reformist and all hues of leftist factions whose common purpose
was the struggle for the restoration of democracy. In opposition, these internal
political and ideological differences were of little or no relevance. But with
48 The Actors

the removal of the authoritarian structure and in its role as a ruling party, the
assertion of differences was naturally bound to emerge sooner or later.
As a result of this long-standing opposition role, the party lacked established
mechanisms for the articulation of collective action within Congress and
between this and the executive. Its role in both houses of parliament had
been reduced to little more than that of obstructing the parliamentary agenda
and denouncing the government's arbitrariness and repression. Its programme
and official documents contained very strong reformist and nationalistic ideas
of socioeconomic nature which were believed to be difficult to be translated
into concrete policy proposals without destroying the internal consensus.
Another source of weakness was the fact that the party did not enjoy any
direct linkage with any organized sector of society that could be mobilized
for support. The stability of its electoral basis of support was also likely to
be affected by the elimination of the authoritarian structure and the emergence
of new political actors.
The institutional fragility of the PMDB became immediately apparent in
February 1985 when the party sought to capture the presidency of the
Chamber of Deputies. Within the party caucus, Ulysses Guimaraes won the
ballot against his challenger Alen<rar Furtado. But when the latter took his
challenge to the final floor vote, Ulysses was forced to accept an arrangement
with the outgoing party to secure his victory. In the Senate, the PMDB
elected Senator Jose Fragelli as president and defeated Senator Humberto
Lucena, who had been articulated by Tancredo Neves. 15
The PFL seemed apparently more ideologically cohesive than the PMDB,
but its institutional consolidation was still uncertain. In contrast to the PMDB,
its members had been collaborating with the authoritarian military government
from the very beginning. Some of its most important leaders held key posts
in the Figueiredo administration. For instance, Aureliano Chaves had served
as the vice-president of President Figueiredo, Senator Marco Maciel had been
the leader of the government in the Senate, and Jose Sarney had occupied
the presidency of the PDS from 1979 until June 1984. They knew how to
operate the state apparatus and were well acquainted with the practice of
clientelistic politics.
The basis of the Democratic Alliance coalition therefore had little to do
with any kind of ideological convergence of the forces involved. Beyond
the common purpose of defeating the military government and its candidate,
the differences seemed wider than not. In the circumstances in which the
coalition was forged, it was believed that Tancredo Neves would be capable
of acting as the mechanism through which the cohesion of the PMDB and
the coalition itself would be preserved.
 The Democratic Alliance Coalition 49

The Tancredo Neves Factor

For most political analysts, the death of Tancredo Neves represented indeed
a crucial stroke to the unity of the Democratic Alliance 16 and, therefore, to
its ability to lead a more stable and complete transition process. Two main
reasons support that argument. First, the formation of the coalition depended
largely on the personal credibility and skilful negotiations ofTancredo Neves
himself. Second, his centrist and moderate profile was a necessary condition
to maintain the internal balance of power and discipline within the highly
heterogeneous coalition during the positive stage of the transition. The
assumption of Vice-president Jose Sarney to the presidency, a political
figure with a very different political profile and prestige, broke this balance
and posed tremendous difficulties for the reconstruction of the
coalition authority.
As to the first point, one important condition which brought the dissident
group of the PDS and the opposition PMDB together was indeed the
nomination by the latter ofTancredo Neves himself to the indirect presidential
contest. Neves enjoyed wide support within all factions of the PMDB by
virtue of his own political past and his opposition stance to the military regime.
At the same time, his well-known moderate and conciliatory political profile
made him the most acceptable of all possible opposition candidates for the
dissident group of the PDS and other key elements of the military regime.
The formation of the Democratic Alliance coalition was then possible largely
because of the personal credentials of Tancredo Neves himself.
Moreover, much of the dialogue and conciliation which eventually led to
the election of Tancredo Neves in the Electoral College was conducted
personally and privately by Neves himself. A number of different pacts are
said to have been negotiated with key elements of the military regime that,
due to their negative political implications, were mostly kept out of the public
eye. Among those were the private negotiations with the more moderate
members of the army high command and the group of dissidents from the pro-
government party. 17 Many of these agreements then were credited to the
personal authority of Neves rather than to the PMDB as an institution itself
and, perhaps, many of them remained known only to Tancredo Neves himself.
In relation to policy objectives and priorities, the co~lition was also highly
dependent on the personal authority ofTancredo Neves. The need to secure
the support from the wide range of interests in the coalition led to avoidance
of any kind of inter-partisan agreement for the definition of the future plan
of action. As mentioned before, the 'Commitment to the Nation' manifesto
was deliberately formulated in generic, vague and non-controversial terms.
In these conditions, the definition of more specific policy objectives, priorities
50 The Actors

and instruments was thus delegated to the future president. The conciliatory
credentials and personal authority ofTancredo Neves would presumably ensure
a smooth adjustment of competing policy interest and priorities in the future.
With Samey the mechanism of adjustment would be, more than ever, a
competitive confrontation between the two sectors of the coalition and all
their multiple factions.
As to the second element of the argument, the capacity ofTancredo Neves
to maintain the balance of power and discipline within the coalition is
normally evaluated in contrast with Sarney's own political conditions. The
nomination of Jose Sarney as Tancredo Neves's running mate had been a
matter of political expediency to seal the agreement between Neves and the
Liberal Front's leaders. Sarney was a rather minor political figure from the
politically and economically unimportant state of Maranhao. He had been
closely identified with the military regime and had been the president of the
PDS until June 1984. For the majoritarian progressive and anti-military
sector of the coalition, Sarney's association with the military regime was
difficult to accept. Now, as head of the new coalition government, that
association posed even more difficulties in resisting pressures from outside.
On the other hand, Sarney's own political status generated a climate of
mutual suspicion between the conservative and the progressive sectors of
the coalition and, therefore, helped to intensify the level of animosity between
the two camps. For the minoritarian conservative sector, Tancredo Neves
represented the conservative counterweight to the majoritarian progressive
coalition. For the latter, he provided the guarantee that some kind of social
redistribution would be achieved. With the assumption of Sarney to the
presidency, the conservative sector started to fear that Samey would be
tempted to engage in more 'adventurous' policy actions in order to compensate
for his original lack of legitimacy. For the progressive sector, it meant an
increase in the urgency to deal with the institutional agenda of the New
Republic. As will be shown, the combined effect of these perceptions
aggravated the difficult process of maintaining balance and stability.
In view of the former considerations, the conclusion that the figure of
Tancredo Neves was an important element in maintaining the unity and
leadership of the Democratic Alliance seems to have considerable weight.
His unexpected death obviously neither helped to smooth in any way the
internal accommodation of interests nor did it help to maintain the stability
of the transition process itself. But it can be only a matter of speculation
how different the course of events might have been if he had Iived. 18
Individual leadership is evidently important, particularly in Brazilian politics.
But the stability and capacity of the coalition was also conditioned by other
 The Democratic Alliance Coalition 51

types of important variables, such as the character of the underpinning

partisan structures.
In fact, the aggregation of interests and organization of consensus through
the person of Tan credo Neves, not through a prior amalgamation of partisan
interests and inter-party negotiation, reflected the institutional weakness of
the existing partisan forces. To what extent was the strength and legitimacy
of Neves's leadership sufficient to overcome the structural weakness of his
coalition during the positive stage of the process? The answer will remain a
matter of speculation. What actually happened in the absence of Tancredo
was a constant internal struggle within the coalition that obviously affected
its performance in the reform process.

The Initial Performance

With the exception of the nine-months period in which the Cruzado Plan
remained in operation, the Democratic Alliance, acting as a government
coalition, remained deeply divided by internal conflicts. The disarray of the
coalition, which initiated with the sudden loss ofTancredo Neves, affected
the relations between the executive and Congress, the president and the
PMDB leadership, and within the government itself. The result was an
incapacity of the government to take decisive action on the issues of the
proposed reform agenda. In theory, the coalition was never dissolved formally.
Most of the civilian cabinet and public administration positions were occupied
by members of the PMDB and the PFL until the end of the government. But
in terms of co-ordination for effective action, the coalition ended earlier, even
before the beginning of the constitutional debate.
The first moment of the coalition instability was when it became known
that Tancredo Neves would be unable to take office because of his unexpected
illness which took him into surgery the night before his inauguration day on
14 March 1985. The event took the whole nation by surprise, causing deep
political trauma and confusion, especially in the PMDB. According to the
existing constitution, the succession line had to pass from the president to
the vice-president and then to the president of the Chamber of Deputies. But
there were legal ambiguities and political obstacles for a straightforward
application of the constitutional prescription. President-elect Tancredo Neves
had not been yet sworn in as constitutional president and Vice-president-
elect Jose Sarney lacked the legitimacy to become president in the eyes of
large sectors of the PMDB.
In the early hours, Ulysses Guimaraes, president of the PMDB and of the
Chamber of Deputies, played an important role in guaranteeing the solution
to the succession crisis. 19 Because of the dangers of putting the transition
52 The Actors

itself at risk and his belief that it was a case of temporary substitution,
Guimaraes opted for the legalist solution. 20 Jose Sarney would be sworn in
as 'Acting President' and Guimaraes would guarantee the support of the PMDB
to get through the period ofTancredo's illness. On 15 March 1985, Sarney
was sworn in. 21 Five weeks later when Tancredo died (21 April1985), the
arrangement was preserved. In a televised speech, the new president promised
to follow Neves's programme and to put the realization of a National
Constitutional Assembly as the main objective of his government. 22
The new president's uncertain standing and authority in his new party and
in Congress made it impossible for the presidency to take any assertive
initiative. He was forced to confirm the cabinet appointments that Tancredo
Neves had made on an intricately personal basis. Without Tancredo, this initial
government became little more than an aggregate of ministers, upon which
Sarney struggled to impose his authority by removing its members and
subordinating the coalition gradually to his own personal authority. His
initial act of self-affirmation began with the removal of the Minister of
Finance, Francisco Dornelles, and culminated with the cabinet reshuffle of
February 1986. The substitution of Dornelles by Dilson Funaro in August
1985 was celebrated by the PMDB. Funaro was indeed a member of the PMDB,
but his appointment was made primarily on grounds of his loyalty to the
president (he was Sarney's personal friend). 23
During the first three to four months, Congress came to occupy the power
vacuum left in the presidency. Initially, the new government functioned as
an informal semi-parliamentary system, with Senator Fernando H. Cardoso
and Deputy Ulysses Guimaraes acting as 'co-prime ministers'. 24 Important
political and financial initiatives were taken by Congress, such as the election-
party package which, among other things, mandated the elections for mayors
of states' capitals and national security municipalities for 15 November.
President Sarney had no choice but to acknowledge the initiatives which not
infrequently took him by surprise. 25
Enormous time and energy was spent on the co-ordination of the remaining
subministerial appointments, where the leaders of the coalition and its
multiple factions scrambled for posts and positions. In terms of policy output,
the government of the New Republic remained in a virtual paralysis during
its first year. The internal conflict, generated by the attempts at changing the
strike law or the formulation of the programmes of land reform, led Sarney
to opt for the conservative imobilisme which alienated the left sector of
thePMDB.
Economic policy was hesitant and ambiguous as the Finance Minister,
Francisco Dornelles, quarrelled with his colleague, Joao Sayad, about the
nature of the inflationary process. Dornelles's point of departure was that
 The Democratic Alliance Coalition 53

inflation had to be overcome through domestic fiscal and monetary austerity

in order to achieve the resumption of growth later. Sayad rejected this
conventional approach and pressured for concessions to heterodoxy.
By the end of the year, frictions between Sarney and the National Congress
were becoming more apparent. A survey undertaken by the presidency
revealed the lack of support in Congress (both the Chamber of Deputies and
the Senate). The speeches delivered in Congress during the second half of
1985 showed that only 20 per cent of them had been favourable to his
government, whereas 55.5 per cent were politically neutral and 24.5 per cent
were clearly hostile to him. It was also shown that of all the parties in
Congress only the PDS was able to surpass the PMDB in its criticisms
towards Sarney. 26

The Cruzado Plan

It is commonly held that the Cruzado Plan had political as well as economic
objectives. A strong impact was needed to stop the continuing erosion of
authority of the presidency and the disaggregation process of the governing
coalition. At the same time, the high and rising inflation rate, which hit a
record of 235 per cent in 1985, was seriously endangering the monetary system
and, therefore, the prospects for growth. The cabinet reshuffle undertaken
by Sarney at the beginning of February had produced a rapid erosion of support
for his government. The new cabinet appointments had increased the power
of the president upon his own government by strengthening the PFL and the
conservative sector of the PMDB at the expense of the reformist sector of
the coalition. 27
After the reshuffle, the left sector of the PMDB opened fire against
President Sarney. In a widely publicized interview, Senator Fernando
Henrique Cardoso accused President Sarney, for the first time since the
inauguration of the New Republic, of having betrayed the party's programme
and threatened to withdraw its support. He complained that it had been the
PMDB which had overthrownthe old regime, but 'who commands nowadays
is in fact the moderate wing of the military together with the liberal wing of
the old regime and a group of friends of the President' .28
Also, Pimenta da Veiga, leader of the PMDB in the Chamber of Deputies,
had opened the Congress sessions in early February by launching a rain of
criticisms on Sarney' s government. He added that the PMDB should not behave
as if it were part of the government as the Democratic Alliance had ceased
to exist. 29
Suddenly, on 28 February 1986, Sarney decided to introduce a heterodox
stabilization plan - the Cruzado Plan -by decree. The Plan, designed to reduce
54 The Actors

inflation through a combination of price and wage freezes, boosted the

president's popularity, silenced criticisms of the new cabinet, and temporarily
reunited the Democratic Alliance. 30 Senator Fernando Henrique Cardoso
phoned President Sarney to apologize for the 'misunderstandings' of the late
interview in which he had strongly criticized his government. 31 On 7 April
the PMDB designated President Sarney as 'Honorary President' of the party.
The same step was adopted later on by the leaders of the PFL who named
Sarney 'Patron' of the party. 32
The redistribution of income implicit in the price freeze quickly led to an
explosive demand for consumer goods of all kinds which overheated the whole
economy. Businesses responded by reducing supply and intensifying their
political pressures. The coming election of November, which was to elect
the congressmen who would form the Constituent Assembly as well as the
state governors, placed enormous political pressures to go on with the price
freeze despite the evident distortions. Confronted with an enlarged demand
and a reduced internal supply, the government resorted to massive imports
of food products, which reduced sharply the level of international reserves.
The Plan contained a number of PMDB demands and the popularity of
the economic measures was reflected in the electoral results of 15 November.
Although the PFL leader, Marco Maciel, organized an anti-PMDB coalition
in a number of the most important states, the PMDB swept all the races for
governor, except in tiny Sergipe, and elected majorities in the Chamber (53
per cent) and Senate (63 per cent), with 54 per cent in the Constituent
Congress. 33 It was the biggest electoral victory ever won in a free election
by any political party in the recent history of Brazil.
The necessary adjustments were painfully introduced after the election in
the form of a package of abrupt increases in utility prices and indirect tax
hikes - the Cruzado Plan II. The impact of the new package upon the
authority of Sarney and the unity of the Democratic Alliance was as much
negative as the previous one had been positive. The general mood of optimism
was transformed into deep disillusionment as many electors felt they had
been cheated. The Cruzado Plan II obviously had been designed before the
elections but made public only afterwards. The high popularity Sarney had
enjoyed turned quickly into aggression. His bases of support collapsed and
returned to his position exante in February.
The constitutional deliberations were to start in confused political disarray
and internal turmoil. The public disillusionment with the government of the
New Republic would encourage many forces to try to solve the promises of
social and economic change made by Tancredo through the new constitution.
To control the pressures from within and outside the political system, Sarney
would resort to clientelist practices and a dose of military support. With this,
 The Democratic Alliance Coalition 55

he would defend his government against the pressing initiatives in the

Constituent Assembly to curtail his mandate.
By early 1987, readjustment measures proved insufficient. The drastic
acceleration of inflation marked the disintegration of the Cruzado Plan. The
elimination of trade surplus and the depletion of foreign reserves also forced
the country to declare a unilateral partial moratorium on its foreign debt interest
payments. Funaro was replaced in Aprill987 by Luiz Carlos Bresser Pereira
and then by Mailson da Nobrega in 1989. Three more stabilization plans
were launched and many more measures were introduced. They not only
failed to resolve the economic crisis but made it more unpredictable. Against
this political and economic background, the constitutional discussion was
held during 1987-88.

THE AGENDA OF INSTITUTIONAL REFORM: THE FIRST STEPS

The policy over the institutional reform agenda was subjected to the same
type of indefinitions which surrounded the inauguration of the New Republic.
Sarney's uncertain standing and authority in his new party and in Congress
prevented him from exercising any consistent orientation regarding the
direction and timetable of the process. During its initial period of affirmation,
Congress passed amendment no. 25 whereby a number of different reforms
were approved. Only in late June, Sarney sent a brief initiative to Congress
for the convocation of the Constituent Assembly. In August, he proceeded
also to nominate the committee that Tancredo had intended to create on his
inauguration day to design the constitutional project.
Against this background of uncertainty, a national movement led by the
OAB, the CNBB, the PT and other civic organizations began to organize a
popular mobilization in order to exercise pressure in defining the character
of the Constituent Assembly. Among other things, they demanded that the
Constituent Assembly should be integrated independently from the National
Congress and began to promote a campaign for the popular involvement in
the process of constitutional elaboration. With the sense that little would
change with the coming of the New Republic, the objective of the movement
was to induce some substantive social and economic reform through the
constituent process.

Suspension of Restrictions: Amendment No. 25

After the announcement ofTancredo Neves's death, a group of deputies and

senators from the PMDB started to press the leadership of the party for the
56 The Actors

immediate removal of some pieces of the authoritarian legislation. An

increasing number of initiatives from congressmen were accumulated for
consideration. With little basis of support, President Sarney was easily forced
to send a formal message proposing a few different measures in early May.
Congress proceeded immediately to form a special inter-party committee,
headed by Deputy Joao Gilberto Lucas, to consider the reform package and
other related amendments. 34
On 15 May, Congress rapidly approved the package through the
constitutional amendment no. 25. The package included six important
measures. It abolished the Electoral College and re-established the direct
universal suffrage for the president and the vice-president of the Republic.
It also established direct elections for all city capitals and municipalities
considered national security areas. The suffrage was extended to all the
illiterate citizens for the first time in the political history of the country. The
Party Fidelity Law was abolished as well as the sublegenda provision.
Finally, it lifted the ban on Marxist parties and lowered the legal requirements
for representation, reducing from 5 to 3 per cent the electoral threshold
which was needed for a party to have representation in Congress. At the same
time, it allowed candidates, who were elected by a party which did not
obtain the percentage of votes required, to keep their seats if they opted for
a party which did in 60 days. 35
A few days later, the PCB (Brazilian Communist Party) and the PCdoB
(Communist Party of Brazil) split from the PMDB. Against the wishes of
Sarney and the main leaders of the PMDB, Congress decided to include two
vital provisions which were too costly for the PMDB. The election for the
mayors was set to be held in November 1985. This provision implied an early
confrontation between the two parties of the coalition, which Tancredo
Neves was believed to have wished to avoid as well. In addition to that, the
appointed mayors were prohibited from running for the elections. Both
provisions turned out to be a disaster for the PMDB as the November results
proved a severe blow for the party with the defeat of Fernando Henrique
Cardoso in Sao Paulo. The PMDB deputies were anxious only to defy the
president and were not sensitive enough to calculate the stability of the
electoral support. 36
The reform package was far from being satisfactory. The much criticized
mechanism of decree-law with decurso de prazo, that allowed the executive
extensive legislative powers, was left intact. The possibility of fixing a date
for direct elections of a new president was hotly debated, but the decision
was left to the Constituent Assembly. The provisions on the party legislation
were also severely criticized for their permissiveness. For Lamounier, the
strong deregulatory tendency of the new legislation presented a severe blow
 The Democratic Alliance Coalition 57

to the institutionalization of the party system. It was, for him, a 'suspension

of restrictions' rather than a thought-out project for the establishment of a
new system designed to solve the institutional problems of the country. 37
Senator Fernando H. Cardoso ratified this evaluation. He criticized that
the casuismo, this time democratic, involved in the new legislation was
undermining the attempt to build stable democratic institutions. Combined
with the generous legislation on the access to mass media, 'organizing parties
in Brazil almost as in the samba it is already a profession', he concluded in
1986. 38 The party legislation would, in fact, become a critical element of
the country's future stability. It would promote excessive fragmentation of
the party system which would hinder the formation of stable governments.
With the vested interests generated by this law, the Constituent Assembly
would find it difficult to find the balance between the need to create a party
system conducive to stable government and the representation of the interests
of the significant political and social groups.

Independent or Congressional?: Amendment No. 26

The discussion about the conditions and terms under which the Constituent
Assembly should be held started formally in August 1985 when a special
inter-party committee of Congress was set up to analyse the matter. On 28
June, President Sarney had sent a brief proposal for that purpose. In a brief
document of three clauses, the president had proposed that all members of
the Chamber of Deputies and the Federal Senate meet together in a National
Constituent Assembly in late January 1987, but not to the detriment of their
constitutional functions. The reason for this phrase had the intention to
secure that it would be the National Congress rather than an independent
body that would act as the Constituent Assembly. According to some analysts,
this condition was part of the secret negotiations between Tancredo Neves
and the military high command and PFL leaders for agreeing on the issue
of the Constituent Assembly. 39
In theory, there were two extreme options for how to organize the assembly.
At the one end, there existed a view according to which the institutional
alterations were already known and its formulation was just a matter of
technical-juridical drafting. In Lamounier's words,. this constituted the
°
'technocratic option' .4 Favoured by the forces on the right, this view
assumed that, because the country already enjoyed the basic characteristics
of political democracy and owing to the nature of constitutional matters, the
constitutional project should be drafted by a few experts and sent to Congress
for ratification as it had happened in 1967. At the opposite end, there was
what Lamounier called the 'rousseaunian option', closer to what the national
58 The Actors

movement for popular participation was promoting. This view conceived

the Constituent Assembly as a process whereby all the citizens would be
engaged in the elaboration of the 'original contract' and should therefore be
preserved from any kind of intervention either by any previous blueprints,
state interference or any other type of influence.
Any mediation of the National Congress in the constitutional elaboration
was strongly opposed by the national movement for popular participation,
which organized immediately to pressure the committee. A group of
organizations such as the Plenario Pro-Participat;lio Popular na Constituinte
(Plenary Pro-Popular Participation in the Constituent Assembly) in Sao
Paulo and Rio de Janeiro and, the Movimento Gaucho Pro-Constituinte
(Gaucho Movement Pro-Participation) in Rio Grande do Sui, created under
the auspices of civic organizations such as the OAB, the CNBB, the ABI,
the PT and the CUT (United Workers' Congress), made a number of demands
regarding the election and conditions for the Constituent Assembly.41 The
most important demands were contained in the following points. First, it
demanded that the Constituent Assembly be called independent from the
National Congress with the exclusive purpose of framing the new constitution,
whose members need not belong to political parties. Second, it wanted a
plebiscite to be held, if not for separate sections of the constitution, at least
for the document as a whole. Third, it opposed the creation of a group of
experts to prepare the constitutional draft: the movement wanted as much
popular involvement as possible. Fourth, it insisted on the need to change
the system of state representation prior to calling elections for the Constituent
Assembly, in order to eliminate the inequality bias against the more
industrialized and populous states. And fifth, it demanded the total elimination
of authoritarian legislation prior to calling elections. 42
According to its proponents, only the adoption of these proposals would
provide the conditions for a Constituent Assembly which would guarantee
the interests of the lower classes and the implementation of the substantive
social and economic reform needed by the Brazilian society. For Raymundo
Faoro, a prestigious lawyer from the OAB, providing the conditions for popular
participation was the only way to avoid the 'elitization' of the future
constitution and the only means to avoid the perpetuation of the existing
structure of power. 43 Ulisses Riedel, director of the trade unions lobby
(DIAP), was more specific regarding the objectives of the constituent process
for the working class. He asserted that
social conquests are practically non-existent through the legislative path
... [thus] the working class cannot miss the opportunity to solve at the
constitutional level the fundamental questions of the Brazilian society. 44
 The Democratic Alliance Coalition 59

Despite a high level of mobilization and publicity, none of the demands were
adopted. In a movement that did much to confirm the suspicion of the secret
deal, the rapporteur of the committee, Deputy Flavio Bierrenbach, resigned
from his post after clashing with the leadership of his party, the PMDB. In
his report, Bierrenbach had proposed to call upon a plebiscite to define
whether the assembly should be independent or congressional. He also made
another series of propositions which encountered the objection of the party
leadership and the government. These included, among other things, the setting
of different schedules for the election of the assembly and the governorships
and a national referendum for specific sections of the constitution. He also
included in the bill an extensive amnesty to public and military officers who
had been purged between 1964 and 1979. 45
After Bierrenbach's replacement by Deputy Valmor Giavarina, a new
proposal was worked out. 46 The final version of the bill passed by Congress
on 27 November made the same provisions as the original proposal of
Sarney, excluding only the phrase regarding the preservation of the
constitutional functions of the future congressmen. This opened the way to
define in the future the form in which Congress and Assembly would operate.
Two other issues were also included in the bill concerning amnesty and the
de-incorporation of public officials who would compete in the
forthcoming elections.

The Afonso Arinos Commission

Pressured by Tancredo Neves's intention of setting up a commission to

organize the constitutional project, President Sarney instituted the Provisional
Commission for Constitutional Studies through decree 91450 of 18 July 1985,
which became known as the Afonso Arinos Commission after its chairman.
When it was installed, the commission was strongly criticized by the left
and the movement for popular participation. It received accusations of elitism
and was quickly baptized the 'commission of notables'. When the commission
delivered its constitutional project on 18 September 1986, it became the target
of severe criticism from the right. It was accused now of promoting socialist
ideas, having produced an incoherent document and being totally out of date. 47
The result was that Sarney, critical of the project, decided not to forward the
document to the assembly and buried it. 48
Before it was created, there was much controversy in the government
regarding its convenience and the list of members who would integrate it. 49
The commission was finally integrated with 51 members which included a
heterogeneous range of public figures from diverse sectors of society and
professions such as businessmen, lawyers, journalists, political scientists,
60 The Actors

trade union leaders, writers, and so on. It did not have any connection with
political parties.
The commission elaborated the project in a three-stage process. Initially,
the commission was divided into regional committees to collect suggestions
and hearings from the public. Once this phase was finished in December
1985, the commission was then divided into ten thematic committees to discuss
and elaborate a section of the project. In the final stage, the project was put
for consideration to the whole commission, which was then approved in a
single round of voting. so
The outcome was an extensive text of 451 articles, detailed and with
strong programmatic character. Regarding individual rights it included all
the classical liberal rights and introduced some innovations such as the right
of information (habeas data). Regarding social and economic rights, the
document was extensive and generous. It included numerous provisions for
indigenous peoples, women, ethnic minorities, and the disadvantaged, for
example. Labour was given total autonomy of organization and a series of
new rights, including a 40-hour working week. Property rights were conditional
upon the fulfilment of certain clauses of social function. In general, the
socioeconomic recommendations had a strong populist, nationalist and inter-
ventionist character.
In the political sphere, the commission recommended a series of innovations.
It opted for the introduction of a semi-parliamentary system and the German
model for the electoral system, but it was timid regarding the role of the armed
forces. At the end, some of its authors accepted that the text was exaggerated
and contained a number of inconsistencies and incoherences. The project
was never forwarded officially to the assembly, but it would exercise an
important influence upon the assembly members in many aspects.

CONCLUSION

Tancredo Neves's Democratic Alliance promoted an extensive reform agenda

based on three general concerns: first, the full restoration of democratic
institutions; second, the stabilization of inflation and the promotion of
economic growth; and third, the reduction of social and economic inequalities.
However, it said very little regarding the questions of how those goals were
to be achieved all together and what would be the extent of the proposed
reform. The platform consisted of a collection of unsystematic abstract
points in relation to those general concerns.
The combination of the political forces which brought about the election
of Tancredo Neves implied a structural fragility affecting its governing
 The Democratic Alliance Coalition 61

capacity, which was dramatized by the sudden death of Tancredo Neves.

With the exception of the nine months in which the Cruzado Plan remained
in operation, the Democratic Alliance remained divided by internal conflicts,
affecting the functioning of the government and its capacity to lead the
process of reform. Without effective leadership, a solid party structure and
a coherent programme, the promises of the New Republic collapsed.
The conservative imobilisme of Sarney's presidency encouraged the
mobilization of a number of different forces in society which demanded
conditions for a wide popular participation in the constitutional discussions.
Against the leadership of the Democratic Alliance, who wanted a constitutional
process as similar as possible to the normal legislative process, this group
expected radical structural changes to be made through the new constitution.
Despite the pressures, Congress decided that it would be congressmen only
who would be in charge of writing the new charter, instead of an independent
body as demanded by the pro-popular participation movement. But the
historical context of the post-Cruzado Plan would profoundly mark the
process and the outcome of the constitutional debate.
3 Political Parties, Interest Groups and
Constitutional Issues

One element in shaping the constitutional outcome is given by the type of

participants who take part in the constitutional deliberations. Because each
set of participants has a different sense of what is properly constitutional
and what is to be achieved through the constitutional renewal, the specific
constitutional agenda also depends greatly on the type of actors who are able
to participate. Participants pursuing different and conflicting goals struggle
to define the range of issues to be put on to the table of discussion and to
structure the terms of the debate.
This chapter examines the participants in the constituent process. It looks
first at the alignment of partisan forces that emerged from the 1986 election.
It then discusses the ideological and socioeconomic profile of the parties'
membership which was important at that time. Without any clearly defined
constitutional agenda from any of the major political parties, and in the midst
of an enormous fluidity and uncertainty over the shape of the partisan
structure, this kind of analysis became an important source of information
regarding the voting tendencies of parties during the constitutional deliberations.
The second part examines five different sets of interest groups. In contrast
to political parties, organized interest groups such as labour, business and
others, showed enormous concern in discussing and formulating proposals
for the constitutional debate. Organized interest groups were engaged actively
in a series of preparations since 1985, seeking to advance their goals into
the constitutional debate and to influence the decisions of the assembly. The
last part discusses briefly the elements which influenced the overall structuring
of the constitutional agenda.

THE 1986 ELECTIONS AND THE PARTISAN ALIGNMENT

Since the start of the New Republic, one of the central concerns of Brazilian
politics lay in the prospects for the development of a stable and representative
party structure. The reasons behind this concern were grounded on two sets
of considerations. First, the historical record of the previous party structures,
characterized by a low level of institutionalization and high rate of discontinuity. 1
Second, the artificial character that the party structure, including the PMDB
itself, was believed to carry. 2 The elections ofNovember 1986 were especially

62
 Political Parties and Constitutional issues 63

important, for they would test the resilience of the party structure and determine
the partisan alignment for the formulation of the new constitution.

The Campaign

According to the regulation for the election of 15 November 1986, adopted

the previous year, candidates were to be elected simultaneously for posts at
three different levels: (i) for both houses in the Federal Congress (all deputies
and two-thirds of senators); (ii) for state governorship in 23 out of26 states;3
(iii) for all state assemblies. Elections for the Federal Congress bore particular
importance because it would sit as a Constituent Assembly. Even long before
the polling day, the results of elections were never seriously doubted. Opinion
polls generally had been predicting an overall victory for the PMDB. Although
its electoral performance in late 1985 had been affected by the paralysis of
the government, it benefited tremendous! y from the popularity of the Cruzado
Plan, with which the PMDB was largely associated in the mind of the public. 4
Compared to the PMDB, the situation of all other parties contesting the
elections was less promising. As a part of the Democratic Alliance, the PFL
sought to boost its image in public opinion by trying to capitalize on the success
of the Cruzado Plan. For that, President Sarney chose to remain neutral in
the hope that this would help the PFL and counterbalance the ascendancy
of the PMDB. But the question was how much this would actually help to
increase the electoral chances of the PFL. The rapid decline of the PDS,
associated with the military regime, could contribute to strengthen the
credentials of the PFL, but it could also enhance the forces of the PMDB.
Both Leonel Brizola's PDT and lvette Vargas's PTB were thought to remain
more or less stable and to obtain good scores in one or two states, notably
Rio and Sao Paulo. On the left, the chances of the PT to improve its
representation in Congress had been largely ruined by the success of the
Cruzado Plan.s
Many observers had forecast that the overlapping of the governorship
election with the election for federal deputies and senators would be detrimental
for the debate on the constitutional agenda of national interest. Because of
the past electoral experience, it was likely that the electorate's attention would
be placed on the candidates for the governorship rather than on those for
congressional posts. The call from the most politicized sector of the Brazilian
society for promoting an intensive discussion of constitutional questions during
the elections was further overshadowed by the demobilizing effects of the
Cruzado Plan and by the lack of interest of political parties in the issue. During
the National Convention of the PMDB, the party produced a list of general
64 The Actors

recommendations for the constitution, but did not put them into a coherent
document. Only the PT formulated an official constitutional project.6
The combination of those three elements made candidates and electorates
remain totally uninterested in discussing any of those matters. Electoral
broadcasts were filled with propaganda for gubernatorial candidates, whose
campaign issues were dominated by particular local concerns and by the
questions related to the effects of the Cruzado Plan. On the other hand,
candidates for deputies and senators carried out their campaigns in close link
with the gubernatorial candidates' agenda. The promise of securing the
formulation of the new constitution was repeated constantly by all the PMDB
candidates, but there was virtually no effort to present more specific and
concrete proposals regarding the wide range of issues to be discussed there.
A vague rhetoric to abide by the 'party programme' dominated their campaign
commitments. 7
The end result of the campaign confirmed the earlier prediction. But the
victory of the PMDB was even more massive than had been anticipated. It
swept all the races for governor except in the tiny Northeastern state of Sergipe,
which was won by the PFL candidate. It also secured even the doubtful ones,
despite the effort of the PFL leader, Marco Maciel, in organizing anti-PMDB
coalitions in several such states, like Minas Gerais, Bahia, Goias and
Pernambuco, for example. Brizola' s candidate in Rio was also badly defeated
by the PMDB candidate. At the senatorial level, the PMDB now took up a
63 per cent majority. In the Chamber of Deputies, it now had also a majority
with 53.4 per cent. With this, the party alone obtained a comfortable 54.2
per cent majority in Congress.

Parliamentary Partisan Alignment

The distribution of partisan forces in Congress which emerged after the

election dramatically altered the previous composition. The number of parties
increased to 13, but the dispersion of power diminished. As shown in Table
3.1 below, the partisan distribution was composed roughly of one big party,
PMDB; one medium-sized party, PFL; four small parties, PDS, PDT, PTB,
PT and seven micro parties, PL (Liberal Party), PDC (Christian Democratic
Party) , PCB, PCdoB, PSB (Brazilian Socialist Party), PSC (Christian Social
Party), and PMB (Brazilian Municipalist Party). The PMDB-PFL Democratic
Alliance coalition together accounted for 78 per cent in Congress. The seven
micro parties accounted for no more than 25 members altogether or 4.5 per
cent. Parties with some weight besides the two largest parties had altogether
17.5 per cent.
 Political Panies and Constitutional Issues 65

Table 3.! Party Distribution in Congress,

Following the Elections of 15 November 1986

Party Deputy Senator '86 Senator '82 Congress

(a) (b)* (c)** (d)···

PMDB 260 36 7 303

(53.4) (73.5) (30.3) (54.2)
PFL 116 9 8 133
(23.8) (18.4) (34.7) (23.7)
PDS 33 2 3 38
(6.9) (4.1) (13.0) (6.8)
PDT 24 I I 26
(4.9) (2.0) (4.4) (4.7)
PTB 17 0 I 18
(3.5) (0.0) (4.4) (3.2)
PT 16 0 0 16
(3.3) (0.0) (O.D) (2.9)
PL 6 0 I 7
(1.2) (0.0) (4.4) (1.3)
PDC 5 0 I 6
(1.0) (0.0) (4.4) (l.l)
PCB 5 0 0 5
(1.0) (0.0) (0.0) (0.8)
PCdoB 3 0 0 3
(0.6) (0.0) (0.0) (0.5)
PSB I 0 I 2
(0.2) (0.0) (4.4) (0.4)
PSC I 0 0 l
(0.2) (0.0) (0.0) (0.2)
PMB 0 I 0 l
(0.0) (2.0) (0.0) (0.2)
Total 487 49 23 559
(100) (100) (100) (100)

Notes: • Each one of the 23 states elected two senators each, and federal district,
which was electing senators for the first time, elected three senators (one
with a four-year mandate and two with an eight-year mandate). Hence,
the 49 senators elected in 1986: (23 x 2) + 3 =49. The total number of
senators sitting in Senate after the 1986 elections was made up of three
senators for each of the 23 states plus 3 for the federal district: (23 x 3)
+ 3 =72 .
•• This is the one-third of the Senate (one for each of the 23 states) which
was elected in 1982.
••• This is the sum of (a), (b) and (c). These figures may be slightly different
according to sources as several congressmen began to change party
affiliation at the beginning of the legislature.

Source: Adapted from Guran (ed.) (1988:192).

66 The Actors

In comparison with its representation in 1985, the PDS suffered such a

reduction of seats in the Chamber (dramatically reduced even before the election
due to the massive passage of its members to other parties) that in early 1987,
proposals for its auto-dissolution were briefly discussed in the party. From
135 seats that it had in June 1985, it was left with only 33 seats after the
election. In the Senate, its representation was reduced from 25 in June 1985
to 5 seats after the election. The PFL, PDT and PTB maintained more or
less their previous representation in the Chamber, but the PT almost tripled
its numerical strength from six to 16 seats. The two communist parties fared
very badly, and among the two micro parties, the PL and the PDC increased
their representation slightly. 8
At first glance, it seemed that with such an overwhelming majority, the
two parties of the Democratic Alliance would have an easy task for rewriting
the constitution. But, as shown in the previous chapter, the alliance was non-
operational and the PMDB majority was more nominal than real, for it was
believed that the strength of the party had been artificially inflated due to
the positive effects of the Cruzado Plan. No political analyst was ready to
argue that this partisan alignment could be regarded as a more or less definite
arrangement of the post-transition party structure.

The Ideological Unity of the Parties

The requirement of a 280-vote majority for the passing of the new constitution
suggested that the 303-membership of the PMDB would be more than
sufficient to accomplish the constitutional renewal. The self-defined centre-
left position upheld by the party also seemed to indicate that the new
constitution would have an unambiguous reformist profile. However, the high
degree of heterogeneity and the lack of party discipline, which were regarded
as traditional traits of most Brazilian political parties, particularly the PMDB,
cast doubts over the ability of the party to lead the constitutional debate. The
first question was whether the self-declared position of the party was shared
by most, if not all, of its members in Congress.
Before the inauguration of the assembly, several research projects were
conducted on the profile of the Constituent Congress to assess the unity of
the parties and to provide some indication on the overall political tendencies
of the body. Four of them received wide publicity. On 19 January 1987, the
daily newspaper Folha deS. Paulo published a study in which all the 559
representatives were classified according to five standard categories along
a left-to-right continuum to obtain a mapping of party unity and the relative
strength of each category in Congress as a whole. The main characteristic
of this work was that the classification of congressmen was made by the
 Political Parties and Constitutional Issues 67

newspaper itself, based on socioeconomic background and campaign

statements rather than by the congressmen themselves. 9
In February, the weekly magazine Veja undertook a survey to try to look
into the distribution of opinions on some substantive questions rather than
relying on classification according to abstract left-right categories. In March,
a new study from David Fleischer of the University of Brasilia tried to
characterize the Congress membership according to political party trajectories
and socioeconomic categories. By tracing the party affiliation trajectories
of all members since 1979 (when the two-party system was still in operation),
he believed that his work would reveal the proportion of former allies of the
military regime and, presumably, provide a clue regarding the voting
orientation in congress.
Fleischer observed that the largest political grouping in Congress as a whole
was not the PMDB but, in terms of the 1979 party affiliations, ARENA, with
217 members. Those who were originally affiliated with the 1979 MDB
numbered only 212. Of the 298 PMDB membership included in his analysis,
30 were from the PDS of 1983 and another 42 from the ARENA of 1979.
Thus, instead of the nominal majority of 54 per cent, the PMDB could count
on 40 per cent only. This was, for him, the most realistic account of the PMDB
strength, and was not enough to form a required majority of 280 votes, not
even by bringing together the 58 votes of the parties on the left. He concluded
that this was the clear indication of the conservative profile of Congress. 10
A more extensive survey was prepared by Leoncio Martins Rodrigues from
the University of Campinas, published by the newspaper Journal da Tarde
press. Contrary to the study made earlier by Folha de S. Paulo, this work
was based on the self-classification of deputies (senators were excluded from
the survey) according to a number of different categories, one of which was
set along the left-right continuum. Yet, like the others, the outcome was limited
to no more than the assessment of the overall conservative or reformist
tendencies of the Constituent Congress and to the unity of political parties,
because of the general character of the categories used to classify congressmen.
What each of the categories meant in concrete terms for the purpose of
constitution-writing was an open question.ll
Looking at the outcome of the Folha deS. Paulo study in detail, it was
found that the centrist category was the dominant force in Congress. As shown
in Table 3.2 below, 32.4 per cent of its membership belonged to that category.
The centre-left and centre-right forces were more or less equally distributed
with 22.5 and 23.4 per cent respectively. The two extreme positions were
rather marginalized with only 9.3 per cent on the extreme left and 12.4 on
the extreme right. On the basis of this analysis, the Folha concluded that on
the whole the outcome reflected 'a high level of indefinition' . 12
68 The Actors

Table 3.2 Ideological Orientation in Congress According to

Folha deS. Paulo, 19 January 1987

Ideological Orientation
Party Left Centre-left Centre Centre-right Right Total

PMDB 7.2 34.5 41.4 13.7 3.2 (303)

PFL 2.3 28.1 46.8 22.8 (133)
PDS 5.4 29.7 64.9 (38)
PDT 19.3 53.8 15.5 11.4 (26)
PTB 6.2 34.4 43.8 15.6 (17)
PI' 100 (16)
PCsf 90 10.0 (10)
PSB
PUPDC 6.2 34.4 43.8 15.6 (16)
/PSC
Total 9.3 22.5 32.4 23.4 12.4 (559)
(52) (126) (181) (131) (69)

Source: Folha deS. Paulo, 19 January 1987.

The examination of the internal coherence of the parties showed that the
unity of the largest parties was extremely low. According to this assessment,
the PMDB showed the highest rate of deviation from its self-declared centre-
left position. Almost half of its membership was placed in the centre category
and only 34.5 per cent of the party representatives belonged to the centre-
left party line. It also had 7.2 per cent of its membership on the extreme left
and 3.2 on the extreme right. The higher rate of deviation towards the left
confirmed to a large extent the centre-left tendency of the party, but the great
diversity of ideological currents within the party made it very difficult to
predict its voting behaviour. Having its majority in the centre category
implied an ambiguous commitment to the centre-left line of the party. In
addition, party discipline was not expected to be easily enforced given the
loose structure of the PMDB.
The PFL's self-defined centre-right position was confirmed by virtue of
placing its gravity centre in the centre-right category with almost one half
of the party membership. Party unity was, however, far from clear. As it might
have been expected, the more extreme the position of a party in the ideological
spectrum, the lower the rate of deviation of the party norm was. The PDS
confirmed evidently its status as a rightist party with almost 65 per cent of
its membership placed in that category and with few instances of deviation.
On the other side of the spectrum, the PT, the two communist parties and
the PSB appeared almost solidly united in the left category. Contrary to the
PFL, the PDT appeared to have its centre of gravity in the centre-left category,
 Political Parties and Constitutional Issues 69

but equally showed some degree of deviation. The PTB and the group of
small parties at the bottom of the table appeared to have a less clear ideological
standing, but it could be said that they defined themselves around the centre-
right category axis.
With a different methodology, based on interviews in which representa-
tives were asked themselves to define their position, Martins Rodrigues
produced a very different result. According to that, the Congress membership
had a predominant centre-left orientation of more than 50 per cent. Few rep-
resentatives classified themselves on the extremes, none of them actually
on the extreme right, leaving Brazil without any rightist force. He concluded,
however, that the validity of his survey had to be taken with some caution.
The predominance of centre-left force should not be interpreted as the
predominance of the popular or working classes. It could be attributed to
the tactical needs of congressmen in order to adapt to the new times and to
the predominance of the intelligentsia over the proprietor classes. The
summary of his findings is shown in Table 3.3 below. 13

Table 3.3 Ideological Orientation in Congress, According to Martins Rodrigues

Ideological Orientation
Party Left Centre-left Centre Centre-right Right Total

PMDB 2 74 22 2 (224)
PFL 18 72 10 (tOO)
PDS 10 69 21 (29)
PDT 95 5 (22)
PTB 33 54 13 (15)
PT/PCs/PSB 69 31 (21)
PLIPDC 22 78 (9)
Total
% 5 52 37 6 (420)

Source: Adapted from Martins Rodrigues (1987:103).

The Socioeconomic Profile of the Parties

The characterization of the Constituent Congress in terms of different

socioeconomic categories was made by a number of studies on the assumption
that the underpinning interests attached to different occupations and status
would help to provide some indication for the voting behaviour of repre-
sentatives. Among those, the study by Professor Fleischer was given much
attention. He classified all the 559 representatives according to a number of
different socioeconomic categories, which bore rather unclear boundaries
and did not follow any standard classification of social stratification or
70 The Actors

class. 14 Three main indicators employed by him are analysed in detail here:
occupation, socioeconomic status and economic activity of capital owners.
He chose 16 different occupational categories and located all the 559 rep-
resentatives according to their largest income source: Agriculture,
Commerce-Service-Insurance, Finance-Banking-Construction, Media,
Industry-Transport, Lawyer-Judge, Medicine, Dental-Pharmacy, Engineers,
Teaching, Religious, Journalists, Economists, Social Science, Public Servant,
and Military. The largest group following this categorization was 'Agriculture'
with 16.3 per cent of the whole constituent body. The second largest fell
into 'Public Servant' with 12.9 per cent, followed by 'Finance-Banking-
Construction' with 12.2 per cent. There were considerable groupings of
practising lawyers, teachers, and journalists, accounting for almost I 0 per
cent respectively. The profiles of the PMDB and the PFL were rather similar,
following the proportion of occupations of the assembly as a whole.
The most startling discovery of his research was depicted in the two tables
below, Tables 3.4 and 3.5, which showed the socioeconomic status and the
economic sectoral profile of the capitalist class. In terms of the former, no
less than 37.7 per cent of the membership received the largest part of their
income from capital investment property,led by the PDC (100), PL (57.1),
PDS (50), PCB (42.9), PTB (42.1), PMDB (38.9) and PFL (37.6). The PT,
PSB, and PCdoB elected no one single capitalist, and the PDT had only 19.2
per cent in this category. Manual workers took up only a tiny 1.1 per cent
of the whole assembly with the PT in the lead. This meant that about six
members had been engaged in manual jobs.

Table 3.4 Socioeconomic Status of the Constituent Congress

Party Capital Owners Managers White Collar Manuals Total%

PMDB 38.9 24.2 36.6 0.3 100

PFL 37.6 31.6 30.8 0.0 100
PDS 50.0 23.7 26.3 0.0 100
PDT 19.2 30.8 46.2 3.8 100
PTB 42.1 21.1 36.8 0.0 100
Pf 0.0 6.3 74.9 18.8 100
PL 57.1 28.6 14.3 0.0 100
PDC 100.0 0.0 0.0 0.0 100
PSB 0.0 0.0 100.0 0.0 100
PCB 42.9 14.3 42.8 0.0 100
PCdoB 0.0 0.0 85.7 14.3 100
Total 37.7 24.9 36.3 1.1 100

Source: Adapted from Fleischer (1988:34).

 Political Parties and Constitutional Issues 71

Out of the capitalist class represented in the Constituent Congress, Fleischer

showed that the majority of them belonged to the agricultural sector, followed
by the financial sector. He observed with surprise that all 91 representatives
in the agricultural activity were landowners, which indicated a difficult
situation to deal with on the land reform issues.

Table 3.5 Capitalist Class in the Constituent Congress by

Sectors of Activity and Party

Party Agri- Comm- Fin- Indus- Media Others

culture Serv. Bank Trans.

PMDB 46.6 12.9 22.4 8.6 6.8 3.5

PFL 36.0 12.0 20.0 18.0 10.0 2.0
PDS 31.6 0.0 42.1 26.3 0.0 0.0
PDT 60.0 0.0 0.0 0.0 40.0 0.0
PTB 62.5 0.0 0.0 0.0 25.0 12.5
PT 0.0 0.0 0.0 0.0 0.0 0.0
PL 25.0 25.0 0.0 25.0 0.0 25.0
PDC 66.7 16.7 16.7 0.0 0.0 0.0
PSB 0.0 0.0 0.0 0.0 0.0 0.0
PCB 0.0 0.0 66.0 0.0 0.0 33.3
PCdoB 0.0 0.0 0.0 0.0 0.0 0.0
Total 43.1 10.9 22.7 ll.8 7.6 3.9

Source: Adapted from Fleischer (1988:34).

The Profile of Substantive Opinions

Instead of classifying congressmen into generic left-right categories, some

survey studies tried to obtain the distribution of opinions on substantive
questions regarding the agenda of the constitutional debate. Veja surveyed
the opinion of the Constituent body on 15 specific issues. Three of them divided
the opinion of the assembly almost into two halves while in the rest of them
a solid consensus seemed to be formed. First, the length of the presidential
mandate was estimated to be longer than four years, but most likely under
the parliamentary system of government. 40.6 per cent of the 559 membership
favoured a four-year mandate while the combined figure for those favouring
5 to 6 years of mandate amounted to nearly 50 per cent. Second, 55.4 per
cent favoured presidential re-election. Third, 50.7 per cent considered that
the armed forces had to be in charge of external as well as internal order,
against 48 per cent who felt their function should be restricted exclusively
to external defence of the country.
72 The Actors

Less divisive issues included the following: 82 per cent wanted to increase
provisions for the protection of workers against unemployment (but the
preferred instrument, absolute job security or increased sanctions against
dismissal, divided the opinion into two); 60 per cent preferred a short text;
more than 70 per cent favoured the extinction of the decree-law and mechanism
of decurso de prazo; more than 60 per cent claimed to support the change
of the existing proportional representation system into a first-past-the-post
system; more than 80 per cent also advocated extensive budgetary powers
given to Congress; an impressive 95 per cent favoured fiscal decentraliza-
tion; 75 per cent wanted to impose a limit to profit remittance of foreign
firms abroad. Other issues with a strong consensual opinion were the guarantee
of equal rights to women, the opposition to the legalization of abortion,
congressional control over television and radio concessions, loose interpretation
of media censorship, and the legalization of gambling (jogo do bicho). 15
On the whole, Veja concluded that Congress was 'essentially liberal,
conservative regarding order and customs, and audacious in the question of
economic and social rights' . 16 At the end, this orientation would turn out to
be not sophisticated enough to capture all the different nuances and extent
of the later debates. But with the exception of four issues (notably the desire
for a short text and the substitution of the proportional representation system),
the final outcome in the constitution came close to this general forecast.
The survey undertaken by Martins Rodrigues included also a section in
which the distribution of opinion was classified according to three specific
issues: market economy vs. state intervention, foreign capital treatment and
land reform. 17 To assess the distribution of opinion regarding the orientation
along the axis of market economy-state intervention, the author created four
different categories. The result is shown in Table 3.6 below.
It shows that only 6 per cent of congressmen favoured the complete
elimination of private ownership, led by the group formed by the PT, the
PCs and the PSB. Together with the next category, this group formed a
significant 21 per cent of the anti-market members, but a minority if compared
with the pro-market members. The balance between the liberals and the social
democrats suggested that the existing framework of mixed economy would
be likely to continue (as it actually happened). The most pro-market party
was the group of the PLIPDC, followed by the PDS and the PFL. The PMDB
embraced contradictory currents, but it showed a predominant commitment
to its social democratic line.
On the question of the participation of foreign capital, Table 3.7 below
shows that there existed an unambiguous majority of more than 62 per cent
favourable to participation of foreign capital only in those areas where the
national capital (both public and private) could not be sufficient. The group,
 Political Parties and Constitutional Issues 73

which advocated a total rejection of any kind of foreign capital participation,

consisted of almost a quarter of all the members interviewed by Martins.
These figures suggested some nationalistic tendencies which would actually
emerge in the course of the process. What kind of nationalistic provisions
would be adopted was an open question.

Table 3.6 Market Economy vs. State Intervention

Orientation of the Constituent Congress

Orientation
Party Libera/1 Social- Moderate Extreme Total
dem. 2 socialistl socialisr4

PMDB 29 49 19 3 (233)
PFL 62 32 6 (101)
PDS 78 19 3 (31)
PDT 9 36 36 19 (22)
PTB 50 50 (16)
PTIPCs/PSB 5 32 63 (22)
PLIPDC 80 20 (10)
Total% 40 39 15 6 (435)

Notes: 1. Minimum state intervention

2. Equal participation of private and public sector
3. Dominance of state
4. Elimination of private ownership
Source: Adapted from Martins Rodrigues (1987:109).

Table 3.7 Participation of Foreign Capital in the Constituent Congress

Foreign Capital Participation

Party Ample Selective Total Total
Acceptance rejection

PMDB 8 67 25 (231)
PFL 26 67 7 (95)
PDS 35 62 3 (29)
PDT 4 50 46 (24)
PTB 38 56 6 (16)
PTIPCs/PSB 12 88 (23)
PLIPDC 20 80 (10)
Total% 15 62 23 (428)

Source: Adapted from Martins Rodrigues (1987:111).

74 The Actors

As for the land reform (Table 3.8 below), there was also a majority which
favoured a programme of land reform limited to those 'non-productive'
lands. Only a tiny minority of 4 per cent rejected the idea of carrying out
land reform. Among the small parties, the group of the PI'/PCsiPSB appeared
solidly committed to a radical land reform. The overall figures suggested
that there was potential for the adoption of provisions to promote land
reform, something which contrasted with the final constitutional outcome.

Table 3.8 Land Reform Orientation in the Constituent Congress

Orientation
Party Total Limited to Radical Total
rejection non-productive

PMDB 3 62 35 (231)
PFL 7 83 10 (96)
PDS lO 90 (29)
PDT 4 46 50 (24)
PTB 6 94 (16)
PTIPCs/PSB 4 96 (26)
PUPDC 100 (9)
Total% 4 66 30 (428)

Source: Adapted from Martins Rodrigues (1987:114).

FIVE KEY GROUPS OF POLffiCAL ACTORS

In contrast to political parties, organized interest groups had started to prepare

themselves for the coming constituent process since 1985. In addition to the
permanent organizations, many ad hoc organizations were created in early
1986 for the purpose of advancing their interests in the constituent process
more efficiently. Because of the character of the political parties and the
uncertainty about the direction of the constitutional debate, there seemed to
be an expansion of the range of action of these organizations to a degree
never experienced before in the country.
Efforts were concentrated on two main activities. First, established
organizations sought to influence the outcome of the election by providing
electoral assistance to those candidates who appeared sympathetic to their
interests, mostly regardless of any party affiliations. Second, they set up lobby
organizations in Brasilia to channel their demands directly into Congress.
The function of the lobbies was multifarious. First, they undertook activities
 Political Parties and Constitutional Issues 75

directed towards their own internal membership in order to articulate

proposals, keep the members informed about the progress of the process and
co-ordinate pressure campaigns. Second, they organized direct personal
contacts with congressmen in order to present their proposals and amendments,
provide them with advice and technical information, and undertake a
persuasion endeavour. Third, they promoted activities to influence public
opinion such as press publications and television propaganda.
Because of their relevance in the constituent process, five different groups
of political actors are examined in some detail in the following sections: the
labour movement, the business sector, the peasant movement, the military
and the popular movement.

The Labour Movement

The Organizations
Outside the party system, the interests of labour in the Constituent Congress
were directly promoted by three different types of organizations: the unofficial
nationwide confederations, or centrais sindicais, such as the CUT (United
Workers' Congress) and CGT (General Confederation of Labour); the various
federations and confederations of the official trade union structure; and the
labour lobbying organ DIAP, or Interunion Department of Parliamentary
Advisory, sponsored by many of the former. Naturally, these organizations
did not always share the same type of interests and views. Strong political
and ideological differences persisted in many different issues, particularly
between the two main unofficial confederations, the CUT and the CGT. But
important proposals common to all of them would be successfully incorporated
into the constitution.
The organization of the centrais sindicais came about with the re-emergence
oflabour into the political arena during the process of political liberalization.
Motivated by the success of the strike movements of the late 1970s, leaders
from all the main currents of the union movement held a series of national
meetings in the early 1980s in order to promote the creation of a single national
organization. But the division between moderates and radicals which resulted
from the First National Conference of the Working Class (I CONCLAT) of
Praia Grande, Sao Paulo, led to the foundation of two large separate
confederations or centrais sindicais: the United Workers' Congress (CUT)
created in 1983 and the National Co-ordination of the Working Class
(CONCLAT) created also in the same year and transformed into the General
Confederation of Labour (CGT) in 1986. 18
These large centrais sindicais quickly became the most influential political
interlocutors of the labour movement. 19 They were structured against the
76 The Actors

official corporatist structure, but were integrated mostly by entities which

belonged to it at the same time, grouping indistinctively unions, associations,
federations and confederations from different occupational categories. The
CUT was mostly integrated by members of the 'new unionism' which had
led the strike movement of the 1970s. Almost all of its members were also
affiliated to the PT, and some of its executive directors were also part of the
PT' s National Directorate. It promoted a radical rhetoric (its constitution stated
that the ultimate goal of the labour movement would be the conquest of political
power for the construction of a socialist order) and advocated an aggressive
strategy for the pursuit oflabour demands. The membership of the CONCLAT-
CGT was more heterogeneous. It united activists from the former guerrilla
group (MR-8), communists, and a diverse range of moderate unionists. In
contrast to CUT, the CONCLAT-CGT advocated a more moderate line and
opposed the total dismantling of the corporatist structure.
In contrast to the centrais, the official confederations and federations of
the traditional corporatist structure enjoyed only limited powers of negotiation
and mobilization. This arrangement, imposed by the Labour Code (CLT) of
1943, organized workers vertically according to the following order. 20 One
single union (sindicato unico) for each defined trade (or occupational
category) was given the legal monopoly of representation within a delimited
geographical area (generally one municipality). 21 These local unions were
then grouped into state level federations. All the different federations then
formed part of one of the eight nationwide sectoral confederations: industry,
commerce, agriculture, and so on. These confederations, in turn, could not
be gathered in one sole national entity. 22 Other elements of this arrangement
included: the right of the Ministry of Labour to intervene in a union's internal
affairs; a compulsory union due from all workers (unionized or not), 23
restrictions on the right to strike, constraints on collective bargaining (it allowed
individual, rather than collective, contracts); and a special labour court
system that supervised contracts and arbitrated labour conflicts.
The labour lobbying organ DIAP had begun informally in 1978 to co-
ordinate the demands for the right to strike in the 'essential services' under
the command of Ulisses Riedel. In 1983, it was constituted formally and
established an office in Brasilia. By the beginning of the constitutional
deliberations it represented the interests of over 300 unions, federations,
confederations and centrais sindicais. During the constituent process, its role
consisted of articulating proposals to be offered for internal discussion and
later on to be presented directly to Congress. According to its director, along
the constituent process, DIAP drafted directly most of the labour-related
amendments, collected the required number of signatures from congressmen,
and then asked one of those to sponsor the bill. 24 Another important part of
 Political Parties and Constitutional Issues 77

its activities involved the publication of a weekly bulletin and the design
and implementation of pressure campaigns. 25

The Proposals
The proposals of labour for the new constitution consisted of three sets of
demands centred on: (i) issues concerning the organization of labour; (ii)
issues regarding labour rights; (iii) issues of political character. The first set
involved two essential issues: the autonomy of labour from the tutelage of
the Ministry of Labour and the total freedom of organization. Everyone agreed
on the need to eliminate the right of the Ministry of Labour to intervene in
the unions' internal affairs, but there were contradictory views between the
CUT and CGT regarding the freedom of organization. The CGT advocated
only the autonomy of unions from the state but wanted to preserve the basic
components of the existing organizational structure such as the monopoly
of representation or the sindicato unico and the compulsory union dues. By
contrast, the CUT demanded not only autonomy but also total freedom of
organization, which would naturally include the possibility of a plurality of
unions (more than one union per category in the same area), and therefore
the total dismantling of the corporatist structure.
The second set of demands consisted of a number of questions involving
little internal controversy. Two of them seemed more relevant: the extension
of the right to strike, including the civil servants' right to join unions and
strike, and the inclusion of job security provisions. 26 A new strike law had
been actually on th~ table of negotiations since 1985, but neither the business
sector nor labour had agreed on the limits to strike activity. 27 Among the
rest of the issues were included the reduction of the working week from 48
hours to 40 hours, the definition of a concrete concept of the minimum
wage, increases in overtime and holiday pay, the extension of maternity leave
from 89 days to 120 days, and the extension of pension benefits. Demand
for an extensive land reform was the most important issue within the third
set of demands.
A central concern underpinning these proposals was the belief that, instead
of general abstract principles, labour should demand the formulation of
constitutional provisions as specific and concrete as possible. Constitutional
victory was believed to be not only easier to achieve but more permanent
than ordinary legislation. 28

The Instruments
Like the rest of the interest groups, labour organizations sought to influence
the congressional electoral outcome by encouraging support from their rank-
and-file to those candidates close to their organizations and labour's interests.
The efforts were particularly important in the most militant organization,
78 The Actors

the CUT, which obviously joined the PT's electoral campaign. The party
managed to elect 16 members to the assembly including the party president,
Luis Inacio Lula da Silva, who was elected with more votes than any other
candidate. The representation of working-class interests in the rest of the
parties was less clear. The ideological orientation of the PMDB as a whole
was highly uncertain, and the proportion of the centre-left to left membership
of the assembly as a whole varied widely from the most optimistic figure of
57 per cent (Martins Rodrigues) to a more pessimistic estimate of 31 per
cent (Follw deS. Paulo). On the whole, according to Fleischer's socioeconomic
analysis, manual workers comprised only 1 per cent (six seats) of the
assembly, while members of the business sector comprised as much as 38
per cent (211 seats).29
In the course of the process, labour would also attempt to activate its most
important resource: its capacity for mass mobilization. However, the labour
movement showed a decreasing ability to organize general strikes, to pressure
their demands and to oppose government policies as economic crisis worsened.
The best example of this was the lack of participation in the General Strike
of 20 August 1987, which was called in protest against the Bresser Plan and
to press for the inclusion oflabour rights and land reform in the constitution.
(Only 39 per cent of workers actually joined the strike.)30 However, the
efficiency displayed by its lobby organ ensured that, in many aspects, the
influence of labour in shaping the constitutional outcome was effective.

The Business Sector

Despite the extensive amount of its resources, the business sector revealed
in the process of constitution-writing the serious difficulties it had in
articulating its interests. This was due to the high degree of diversification
that the Brazilian economy had reached and to the very specific provisions,
rather than general principles, which were being written into the constitution.
The high degree of heterogeneity of interests which characterized the business
community was reflected in the number of organizations which were involved
in articulating their demands. Attempts towards a more unified collective
action were undertaken only at the final stage of the constitutional deliberations
when some basic issues such as the absolute job security provision and
others seemed to threaten the business community as a whole. Although there
were moments of co-operation, industrial and rural business interests were
mostly promoted by two separate sets of organizations.

The Industrial Business Organizations

Industrial interests were promoted by three different types of organizations:
the federations and confederations of industries, especially by the powerful
 Political Parties and Constitutional Issues 79

Federation of Industries of the State of Sao Paulo (FIESP) and the National
Confederation oflndustry (CNI); business associations outside the corporatist
structure such as the Brazilian Association Electro-Electronic Industry
(ABINEE) or the Brazilian Association of Chemical Industries, representing
different sectoral interests; and umbrella organizations, especially the Union
of Brazilian Businessmen (UBE) and the National Front for Free Enterprise
(FNLI) among others, which included also the rural business elite.
The political visibility of the industrial business sector, which was increasing
since the second half of the 1970s with the campaign against stateintervention,
became more accentuated with the inauguration of the New Republic.
Business organizations such as the FIESP were re-emerging as influential
political actors. 31 Like labour, the business sector was organized within the
framework of the corporatist structure. But in contrast to labour, business
federations retained their multi-sectoral character, which prevented
fragmentation into statewide federations for each narrow industrial category
(for example, metalworking industries, chemical industries, textile industries,
and so on), and permitted the creation of unofficial associations. This made
the official organizations of industrial business far more influential than their
equivalent for labour. Some businessmen started to participate directly and
personally in politics, occupying administrative posts and contesting
elective offices.32
The Union of Brazilian Businessmen (UBE) was created by industrial leaders
in March 1986 in Brasilia in order to achieve unity for effective pressure in
the constituent process. This was to be an umbrella organization, which would
integrate indistinctively all the segments of official business structure
(industry, commerce, agriculture and banks) and all types of associations.
Its task was to formulate global proposals of interests for the business
community as a whole, preserving the independence of the existing
organizations for the pursuit of their own particular demands.lt concentrated
specifically on the promotion of two crucial points: the defence of the 'free
enterprise' principle and the market economy.
The National Front for Free Enterprise (FNLI) was organized in November
1987 in the course of the constituent process. Like the UBE, it was an ad
hoc organization created in an attempt to aggregate and mobilize the dispersed
forces of the business community against the con ten~ of the constitutional
project which was being written. It united all the industrial and rural business
sectors, including the far-right rural landholders' organization, UDR (Rural
Democratic Union), in reaction to, rather than in favour of, constitutional
counter-proposals. But its aim was more concrete. The organization ran a
15-day television campaign in defence of the 'free enterprise system', printed
posters listing those congressmen who favoured it, and helped to organize
80 The Actors

the Centriio coalition in Congress to modify the internal statute of the

assembly and hence change the constitutional project.

The Industrial Business Proposals

In mid-1985, the FIESP set up a special committee to handle specifically
the issues concerning the constitutional debate, which drafted and presented
proposals directly to Congress. In 1986, it produced a document entitled
'Contribution to the future Brazilian Constitution', which contained the
proposals of the FIESP for the constitutional debate. The document adopted
the promotion of abstract neo-liberal principles intended to appeal to the entire
business community. It stressed the supremacy of the private sector over the
supplementary role of the state in economic activities. The participation of
the state was to be permitted only under very strict and limited conditions.
State monopoly was admitted only for reasons of national security. Market
protection was admitted under the condition that it was restricted to a sector
with little technological development and for a limited period of time. The
document subscribed to an open, free and just society with greater distribution
of wealth, but within the capitalist system. Regarding the political sphere,
it recommended the preservation of the presidential system and the creation
of an economic council comprised of the government officials, political
parties, business and labour to advise on the questions of economic policy. 33
The CNI produced another document following a similar line of approach.
However, one important difference between the FIESP and the CNI concerned
the corporatist structure. FIESP proposed the dismantling of the structure
by allowing plurality of unions and the elimination of the compulsory union
dues. CNI, on the other hand, recommended the complete preservation of
the corporatist structure. Both of them advocated the ban on strikes in public
services and essential activities. Other labour rights were treated in generic
terms as was the case in the existing and previous constitutions (unlike the
previous constitution, FIESP excluded the right of workers to a share of the
firm's profit). 34
Despite their apparent general consensus on the neo-liberal rhetoric, the
course of the constituent process revealed strong divergences within the
industrial business community. Significant divisions emerged regarding
many different questions, of diverse nature, which involved general principles
as well as more specific provisions. Polarization was particularly strong along
two main general lines: free trade vs. protectionism, and national vs. foreign
capital. The intense conflict over the definition of the concept of 'national
enterprise' and the principle of 'market protection' was the most evident
expression of these divisions.
 Political Parties and Constitutional Issues 81

Another set of new proposals (or counter-proposals) appeared also in the

course of the process. The National Front for Free Enterprise (FNLI) was
organized not so much to articulate new proposals but to combat collectively
the set oflabour rights provisions which were being written in the constitution,
particularly the absolute job security clause. The opposition against this
particular provision united the whole industrialist sector almost unanimously.
Other labour-related issues were also strongly opposed but, because they did
not threaten the whole community to the same degree, were more difficult
to oppose. For instance, the reduction of the working week to 44 hours had
already been introduced by many of the most advanced industrial sectors.
Instead of the absolute job security, the industrial sector proposed the
introduction of a indemnity clause which allowed employers to fire employees
at will as long as they compensated them.

The Rural Business Organizations

Rural business interests were similarly promoted by three different types of
organization: the federations of agriculture of different states and the National
Confederation of Agriculture (CNA) which belonged to the official corporatist
structure; associations outside this structure, representing specific sectors of
production, such as the Brazilian Association of Producers of Alcohol and
the Organization of Cooperatives of Brazil (OCB); and associations
representing rural businessmen's general political and economic interests.
The most active of the last type was to be the Rural Democratic Union (UDR)
and, to a lesser degree, the Brazilian Rural Society (SRB), and the umbrella
organization Frente Amp/a daAgropecuaria, or Ample Front for Agriculture,
created ad hoc as a lobby organization.
The Rural Democratic Union (UDR) started to be organized in 1985 in
reaction to the programme of land reform initiated by the Sarney government
and the increasing landless peasant squatting encouraged by several
organizations linked to the church. In contrast to the traditional organizations
such as the CNA and the SRB, which saw the process of land reform as
inevitable and tried to make the best of it, the UDR emerged as a radical
opponent of the land reform proposals and an intransigent and aggressive
defender of the 'absolute' right of ownership. It largely came to replace the
traditional organizations in formulating and representi~g the demands of the
rural business sector. After an impressively rapid organization at the national
level, it elected its first National Directorate in June 1986 under the leadership
of Ronaldo Caiado, a landholder from the State of Goias.35
The Frente Amp/a da Agropecuaria was founded in October 1986 by the
leadership of the UDR, the SRB, the CNA and the OCB, among others, in
82 The Actors

order to articulate the global proposals of the rural business sector and help
to organize unified pressure activities during the constituent process.

The Rural Business Proposals

The debate about the question of the land reform among the rural business
sector had started before the instalment of the Constituent Assembly. In the
document 'Contribution of the Rural Business Class to the First National
Plan of Land Reform of the New Republic', formulated in 1985 by a group
of organizations such as the CNA, the SRB and the OCB, the rural elite's
main demand was that the question of land reform be approached as part of
a broader concern, namely the agricultural policy, of which the problem of
land tenure was just one part. Among other points, it proposed the introduction
of progressive taxation on land tenure in order to avoid concentration of idle
lands, the revision of rural properties records as well as the criteria of
productivity, the reactivation of the colonization policy, and the distribution
of public lands or non-productive private properties, as long as due
compensation was provided.
With the emergence of the UDR, the efforts of the sector were concentrated
on the fundamental defence of the 'unconditional' right to rural ownership
against the attempts to condition it to the fulfilment of its 'social function'.
The counterpart of this was the rejection of the state's right of expropriation,
which the business sector tried to limit, at least, to the 'non-productive
lands'. In the course of the process, other types of specific demands emerged,
such as the UDR' s demands for payment of interest on loans contracted by
medium-sized and small rural firms during the Cruzado Plan to be erased.

The Instruments
The first form of political action, seeking to advance the interests of both
the rural and the industrial business sectors focused on the election of 15
November. Despite the existence of broad umbrella organizations in both
the industrial and the rural sectors, much of the effort at influencing the electoral
outcome was undertaken separately by each organization, each of them
applying different criteria.36
The business sector as a whole succeeded, more than any other group, in
winning a significant number of seats. Members of the business class
comprised 38 per cent (211 seats), of which 43 per cent (91 members) were
linked to the rural sector. 37 These included Albano Franco (president of the
CNI), Afif Domingues (president of the Association of Commerce of Sao
Paulo), Roberto Cardoso Alves (ex-president of the SRB) and Alisson
Paulinelli (ex-president of the CNA), among others. The distribution of the
business class among parties was concentrated in the parties on the right of
 Political Parties and Constitutional Issues 83

the ideological spectrum, but it reflected the general trend in party plurality
of the business community.
Lobby activities were exploited more effectively by the rural sector by
linking directly its organizations outside Congress with the Parliamentary
Front for Agriculture which was constituted by landholder congressmen. Unlike
the industrial sector, the rural elite also demonstrated capacity for mass
mobilization, which they tried to activate at crucial moments. Unified lobby
activity by the business sector as a whole was confined more or less to the
FNLI activities around the 15-day television campaign in defence of the 'free
enterprise system', the printed propaganda and other actions which focused
on the organization of the Centriio coalition in Congress to modify the
internal statute of the assembly in late 1987.38
Success was better achieved by the rural sector. It managed to accomplish
practically all its demands. On the other hand, the great diversity of the industrial
community made it more difficult to formulate consensual demands.

The Peasant Movement

The demands for agrarian reform were promoted by several types of

organization led by the National Confederation of Agricultural Workers
(CONTAG). The CONTAG had been created in 1963, a few months before
the military coup, but was severely repressed by the military rulers. Its
revival was undertaken in the second half of the 1970s. During the third National
Congress of Rural Workers promoted by the CONTAG in Brasilia, the
peasant movement decided to adopt a set of new actions: to undertake strike
activities as a means to press for the improvement of the conditions of rural
workers and to encourage the occupation of land as a means to press for the
distribution of land.
Outside the corporatist structure, other organizations, with a powerful
backing from the Catholic Church, started to emerge. In 1980, the Movement
of the Landless Rural Workers (MTRST) was formed and, in 1985, the
CNBB created an official agency, the Pastoral Commission for Land (CPT),
to support the peasant movement. Other types of organization, such as the
Brazilian Association for Land Reform (ABRA), were organized to provide
technical support for the land reform demands.
The objective of the peasant movement in the Constituent Assembly was
not only to guarantee a general abstract principle to facilitate land reform,
but also to press for the introduction of provisions with as much degree of
specificity and concreteness as possible in order to 'make them self-applicable'.
In 1985, the CONTAG prepared a formal document containing their proposals
which was sent to the Afonso Arinos Commission. The document contained
84 The Actors

ten points. The basic principle was that the property right should be guaranteed
so far as it fulfils its social obligation. It also demanded that some criteria
should be introduced in the constitution regarding the meaning of social
obligation. It argued that expropriation by the state for land reform purpose
should be distinguished from that of expropriation for necessity and public
use. In the case of expropriation for public use, it is just and necessary to
compensate the owner according to the market value of the property. In the
case of expropriation for land reform, this was to punish the owner for his
antisocial behaviour, and the compensation should not be the same as
the other.
These two basic principles on property rights and expropriation were
complemented by a set of more specific points: the compensation for
expropriation was to be made through government bonds; the national fund
for land reform should be raised by taking 5 per cent of all fiscal revenues;
the expropriation principle included immediate confiscation of land (perda
sumaria) and a limited right of defence (imissao automatica); the introduction
of a fixed maximum limit for land holdings to eliminate latifundia; and the
introduction of a rigid limit on foreigners' access to rural property. 39
With little financial resources, the movement could count only on mass
mobilization. Consequently, as the press reported, it managed to elect only
one deputy to the Assembly, Vicente Bogo. In the end, the constitutional
outcome showed a complete defeat for the movement, making the legal
provisions on the land reform a retreat even to the pre-military-sponsored
estatuto da terra situation.

The Military

The transition to civilian rule marked the retreat of the military as a political
actor. However, the nature of the Brazilian transition did not diminish the
political influence of the military. According to Stepan, Brazil was the case
in which the highest continuity of the military presence, in terms of its
political influence and institutional prerogatives, occurred in the
transition process. 40
During the New Republic, the armed forces maintained substantial power
expressed in three different ways: the preservation of the basic institutions
of intelligence, the participation in the cabinet, and the exercise of veto
power over many important reform initiatives. The two most influential
military posts, with great resources to influence political decisions, were kept
absolutely intact: the National Intelligence Service (SNI)41 and the secretary-
general of the National Security Council.
 Political Parties and Constitutional Issues 85

Officers on active duty continued to be part of the cabinet (President

Sarney allowed the participation of six army officers: the Ministers of the
Army, Navy and Air Force, the heads of SNI and the Military Household,
and the Armed Forces Chief of Staff). There was no initiative on the part of
the Sarney government to carry out or even publicly to speculate on any way
to increase civilian control over the military. The military also exercised
extensive veto powers on issues such as the land reform programme, labour
relations and the strike law reform, and the extension of the amnesty proposed
during the approval of amendment no. 26 42 as well as the resistance to the
convening of an independent Constituent Assembly. 43
Two main instruments were employed by the military to advance their
interests during the constituent process: the existing offices of the three
branches the military established in Congress, which performed the most
competent and discreet lobby activities, and the influence and public
declarations of the military ministers. Because of the potential threat implied
in them, the latter functioned as a mechanism of self-restraint on the part of
congressmen. Manipulation of public opinion by the military ministers was
also used by President Sarney to press for the approval of the presidential
system and his five-year mandate. 44
Other organizations outside the official structure of the military were also
created in an attempt to influence the assembly. For instance, the extreme
right founded the National Union for Defence of Democracy under the
leadership of General Tasso Villa and Euclydes Figueiredo, among others,
to defend the general status quo. 45
The demands of the military were divided into two types: issues concerning
its role as a political actor and those concerning the military as a corporation.
In relation to the former, two questions were of greater relevance. The first
concerned the role of the armed forces. All the previous constitutions
contained provisions which facilitated military involvement in domestic
politics. The most critical clause stated that the military was a permanent
national institution, which was not only to take charge of the external defence,
but also to maintain the internal Ia w and order of the country and to guarantee
the normal functioning of the three constitutional powers. The military
wanted these prerogatives to be kept in the new constitution.
Another proposal effectively opposed by the military was the creation of
a Ministry of Defence. This would imply the merging of all the military cabinet
posts into a single one and possibly making the armed forces dependent on
civilian control. This was one of the main reasons why the military (particularly
the armed forces) also came to oppose the introduction of a parliamentary
system of government. In addition, the establishment of the direct presidential
86 The Actors

election only in 1989 was another concern of the military. Questions regarding
the military as a corporation included mostly the prevention of any extension
of amnesty to purge officers.

The Popular Movement

The popular movement is the name given here to the loose organization of
political forces outside the assembly that promoted the idea of a popular
Constituent Assembly. The movement consisted of a group of organizations
of different kinds led mainly by the OAB, the CNBB and the PT. It comprised
a wide range of organizations and grassroots associations supported by the
former as well as a network of different agencies in Brasilia that participated
in providing technical advice, such as INESC, DIAP, FASE, !BASE, CEDAC
among others. The movement was integrated by loose statewide umbrella
'plenaries', of which the most important were the Plenario Pro-Participa(:iio
Popular na Constituinte of Siio Paulo, the Movimento Nacional pela
Constituinte of Rio de Janeiro and the Movimento Gaucho Pro-Constituinte
of Rio Grande do Sui. Attempts to create a national entity were undertaken
without much success. 46
The movement was initiated on 26 January 1985 in Duque de Caxias with
the purpose of promoting political mobilization and the development of
popular political awareness to influence the constitutional debate. 47 Its
advocates believed that organized efforts should be arranged in order to avoid
the demobilizing effects of the 'transition through transaction' and to
maximize the prospects of making a break with the past. The underlying idea
was that the aspirations for a more just society could be achieved only if
popular pressure and participation were exercised during the constitutional
renewal. 48 It was through the constitutional renewal, which they believed
should contain not only general abstract principles but also specific and concrete
prescriptions, that major changes were to be brought about by reshaping the
socioeconomic relations at the constitutional level.
Initially, the movement articulated a set of demands seeking to establish
a popular and independent Constituent Assembly. With the approval of
initiatives determining a congressional assembly, the movement shifted its
efforts to guarantee direct access to the assembly through the incorporation
of some kind of instrument of popular initiative and to press for as open a
process as possible.
During the formulation of its functioning procedure, the Constituent
Assembly adopted the 'popular amendment initiative' through which proposals
to the constitutional project were allowed to be presented by the outside forces.
 Political Parties and Constitutional Issues 87

The assembly received 122 popular amendments, most of which were

articulated by the organizations under the popular movement. Rallies, public
demonstrations and the publication of a wide variety of leaflets, books,
posters and videos were also used to pressure the members of the assembly.
The proposals of the movement made it clear from the beginning that the
new constitution would be long, detailed and programmatic.

THE AGENDA OF DISCUSSION

Until the opening of the constituent process in February 1987, the concrete
agenda of the constitutional discussion remained largely undefined. The
fact that the military had not abolished the basic institutions of political
democracy made the constitutional renewal less imperative and the agenda
more defused. Yet many issues concerning the reorganization of political
democracy were expected to be discussed, such as the definition of the
system of government, the role of the armed forces, the powers of congress,
the electoral system, and the federal decentralization, among other minor
matters. However, the main problem in defining the agenda lay in the
controversy over what was to be 'constitutional', which was in itself part of
the political struggle.
Political actors on the left had a different sense of what was 'properly
constitutional' and what was to be achieved. They challenged not only the
form of the existing framework of political institutions, but also believed
that social and economic reform should be introduced through the constitution:
'talking about democratization makes it necessary to talk about economic
and social democratization' was the guiding principle. In addition, there was
the belief that constitutional victory was not only more feasible, but seemed
to be more permanent and complete than victory in ordinary legislation, which
could easily be changed. In this way, many issues came to be defined in
constitutional terms.
Thus the content of the agenda would only be established gradually by
the logic of the political struggle during the course of the constituent process.
Because very specific legislation, rather than broad principles, was being
proposed, the agenda comprised an incredible num~r of different issues.
The mechanism by which the constitution was written also allowed the
widening of the agenda, which included issues of doubtful constitutional
character. None of the major political parties engaged in any serious discussion
or presented an official position regarding the constitutional reforms. This
also contributed to the lack of well structured constitutional debate.
88 The Actors

CONCLUSION

At the point at which Congress was to start the making of the constitution,
there was no positive sign to indicate that the process would go smoothly.
As shown here and in the previous chapter, the political, economic and
institutional conditions by the end of 1986 indicated rather that the process
would not be an easy task at all.
In the first place, the failure of the Cruzado Plan would inevitably have
devastating effects upon the already fragile structure of the government and
the PMDB itself. The disappointment and the public's sense of having been
cheated would inevitably affect the PMDB's insecurity regarding its own
legitimacy and internal cohesion. This would naturally make the party more
vulnerable to internal struggles and outside pressures. Pressures to hold an
open and popular constituent process would be more difficult to control. At
the same time, the desire of many sectors to implement social reform through
the constitution would undoubtedly tend to overload the agenda regarding
the issues to be debated and decided.
The further erosion of presidential authority resulting from the failure of
the Cruzado Plan would tend also to eliminate the only possible source of
leadership capable of imprinting a direction to the process, as it was originally
expected under Tancredo Neves or, in the case of continuing economic
success, under Sarney. Moreover, the fact that the length of the presidential
mandate was an open question to be decided by the assembly did not help
to forge a smooth relationship between the presidency and the
Constituent Congress.
The weakness of political parties, both individually and as a system,
provided very little hope of broad settlements being negotiated quickly and
satisfactorily, starting from the fact that none of the major parties were
capable of preparing proposals. The lack of internal cohesion of the PMDB,
which was in the numerical position to lead the process, made it extremely
unlikely that the party would be capable of unified action. On the other hand,
the fragmentation and ideological distancing among the rest of the parties
did not provide any optimistic indication that the process of aggregating
interests and issues would be initiated outside the major party.
This obviously would enlarge the room for manoeuvre for organized
groups which were anyway far more prepared than parties to formulate
constitutional proposals.
 Part II:
The Making
of the Constitution
4 The Constitution's Drafting Process,
1987-88

On 1 February 1987, the senators and federal deputies met together to initiate
formally the drafting works, which would last for 19 months until October
1988. 1 The first round of deliberations was devoted to defining the rules under
which the drafting process would be conducted.
Prior to the installation, there was a widespread belief that the Congress
would tend to adopt special drafting procedures, but there was no consensus
concerning what form they would take. The conservative sectors wanted to
keep the drafting process a peripheral activity to the regular work of the
Congress. But there was strong pressure from the sectors on the left for the
adoption of extraordinary procedures. They were pressing for as participatory
and open a mechanism as possible. Also, there was strong opposition to the
idea of accepting a preliminary constitutional blueprint, such as the one prepared
by the Afonso Arinos Commission the previous year.
After about two months of discussion, the Constituent Assembly decided
to adopt a decentralized drafting procedure. Twenty-four thematic
subcommittees would start to produce from scratch partial sections of the
constitution. This chapter presents a general description of the drafting
process throughout its different stages (see Figure 4.1).

THE BATILE OVER THE PROCEDURAL RULES AND

ORGANIZATION

The drafting process began with a discussion of the procedural rules which
would regulate the activities of the Constituent Congress itself. This was
difficult because of the implications it entailed regarding the distribution of
influence among the various political forces over the decisions of the
assembly. It would help to define the relationship between the assembly and
the government, the relationship between the assembly and the outside
political forces, and the form of interaction of the political forces within the
assembly. After almost two months of discussion, the subject was settled
with the final approval of Resolution No. 2. Yet, before entering into the
discussion on the content of the constitutional alternatives, the assembly had
to negotiate the distribution of the 559 members into the different positions
set up by the Resolution. The drafting of the constitution itself commenced
only in early April1987, after all this had concluded. 2

91
92 The Making of the Constitution

I. DEFINITION OF INTERNAL RULES (l February-24 March):

l.Formal installation 2.Election of the Constituent Assembly President 3.Adoption
of provisional internal rules 4.Appointment of rapporteur to draft the internal
statute S.Presentation of the internal statute draft 6.Submission of amendments
7.Presentation of new draft 8.New round of amendments 9.Approval of internal
statute (regimento intemo)
ll. COMMITTEE AND LEADERSmP ASSIGNMENTS (24 March-1 April):
1. Election of the Presiding Commission or Mesa 2. Formation of committees and
subcommittees 3. Election of Presiding Board of committees and subcommittees
4. Appointment of rapporteurs
ill. SUBCOMMITTEES (1 April-2S May):
1. Public hearings and submission of suggestions 2. Presentation of first report
3. Submission of amendments and discussion 4. Presentation of new draft
(substitutivo) S. New submission of amendments 6. Subcommittee voting session
7. Dissolution of subcommittees
IV. THEMATIC COMMITTEES (2S May-lS June):
l. Reception of subcommittees' reports 2. Integration of reports 3. Submission for
amendments 4. Presentation of first report S. New round of amendments
6. Presentation of new report (substitutivo) 7. Committee voting session 8. Dissolution
of committees
V. INTEGRATION COMMITTEE (26 June-18 November):
1. Reception of all committees' partial reports 2. Integration into single text
3. Submission for amendments 4. Presentation of first report (substitutivo um or
Cabral[) S. New round for amendments and discussion 6. Presentation of popular
amendments 7. Presentation of new working draft (substitutivo dois or Cabral![)
8. Committee voting and approval
VL SECOND RULES BATTLE (November-S January 1988):
l. Presentation of proposal for rule alteration by the Centriio 2. Appointment of
rapporteur to pass judgement 3. Presentation of report 4. Submission of amendments
and discussionS. Presentation of new report 6. Assembly's voting and approval
7. Adoption of Resolution No.3 8. Dissolution oflntegration Committee
VII. FIRST ROUND FLOOR VOTING (S January-30 June):
l. Submission of amendments 2. Organization of amendments by rapporteur-
general and initial judgement 3. Requests for amendments' preference in voting
and contents (destaques) 4. Assembly's voting process
vm. SECOND ROUND FLOOR VOTING (27 July-2 September):
1. Submission of suppressive or corrective amendments 2. Organization and initial
judgement on amendments by rapporteur 3. Requests for preference in voting and
amendments' contents (destaques) 4. Assembly's voting process
IX. PROMULGATION OF NEW CONSTITUTION (3 September-S October):
l. Appointment of Editorial Commission 2. Presentation of final constitutional project
3. Submission oflanguage amendments 4. Assembly's approval of new constitutional
textS. Promulgation of new constitution

Figure 4.1 The Stages of the Drafting Process (as it happened)

 The Constitution's Drafting Process, 1987-88 93

The Defmition of the Assembly's Internal Rules

As it had been previously determined in the convocation initiative, all

members of the Chamber of Deputies and the Federal Senate met together
in Brasilia on Sunday afternoon, 1 February 1987 to initiate the constituent
process. The president of the Supreme Court, Minister Jose Carlos Moreira
Alves, chaired the session and declared the process formally inaugurated.
In the second session, Moreira Alves called upon the assembly in order to
make the election of its president. Before the ballot, the PT, in alliance with
many other leftist members, questioned the right of the senators elected in
1982-23 senators, or one-third of it3 - to participate in the assembly. The
dispute was quickly resolved as Moreira Alves decided to bring the issue to
a vote of the assembly, that decided to admit them by 394 votes to 126. The
ballot for the presidency of the assembly brought no surprises. The PMDB
leader, Deputy Ulysses Guimaraes, was elected by a large margin of votes
against his only opponent, Lysaneas Maciel (PDT). However, these first two
ballots revealed immediately what would be the keynote along the process:
the lack of unity and effective command of the majority party PMDB.4
In order to begin the discussion on the matters of procedural character,
Resolution No. I was passed on 6 February to discipline this debate. The
act established a provisional Presiding Commission (Mesa) of five secretaries
appointed by the president, made official the presence of political parties
and party leadership, and resolved some other minor administrative measures.
Senator Fernando Henrique Cardoso was appointed to draft the assembly's
internal statute in collaboration with the parties' leadership.
By the time Henrique Cardoso produced his report on the draft statute on
16 February, the discussion was especially critical regarding three important
interrelated points: (i) the limits of the sovereign powers of the assembly
itself; (ii) the compatibility of the constitutional debates with the normal
legislative duties of the body; (iii) the method through which the new
constitution was to be formulated. As to the first point, paragraph 7 of article
57 of the draft proposal granted authority to the assembly to issue Projetos
de Decisiio, or Proposals of Decision, with regard to 'matters of relevance'
which would have immediate effect. 5 The implication of this provision
meant that the assembly would have the power to amend the existing 1967
Constitution with an absolute majority of the assembly instead of the two-
thirds majority required by the existing constitution's rules.
The progressive members of the PMDB and the leftist parties supporting
this provision argued that the assembly was fully sovereign and had complete
freedom to introduce any kind of immediate constitutional reforms. 6 The
leadership of the PFL, the conservative wing of the PMDB and other rightist
94 The Making of the Constitution

parties found this provision totally unacceptable. With the support of President
Sarney, who saw in this provision the intention of the pro-sovereignty group
to curtail his powers, these forces strongly opposed the idea. They argued
that the sovereign powers of the assembly were exclusively limited to those
of designing the future constitutional structure of the country and warned
against the 'tyrannical' dangers of transforming the assembly into government. 7
This controversy reached its most critical point when the rules package
was brought to a floor vote on 25 February. On that day, the leaders of the
PFL and the conservative wing of the PMDB managed to exit the assembly
floor in order to avoid the approval of the package. The floor vote was put
off and Henrique Cardoso proceeded to negotiate a compromise. 8 The new
version finally approved by the assembly determined that Proposals of
Decision were to be issued only against any action which could threaten the
sovereign decisions of the assembly .9 Several of these legislative acts were
subsequently submitted along the process, but none of them was ever
approved.
Closely depending on the resolution of the former, the second point proved
less controversial. The convocation initiative had secured that it would be
senators and deputies who would be in charge of drafting the new constitution,
in the belief that in this way the drafting process would take secondary
importance. But it did not make any clarifications as to how the normal
legislative activities and those of the constitution drafting would be worked
out. During the electoral campaign of the previous year, Ulysses Guimaraes
had frequently declared his intention to give priority to the constitutional
debate. After the elections, he actually guided the Chamber in passing an
amendment that would have granted priority to the constitutional debate,
allowed Sarney to continue to govern by decree-laws, and instituted a
legislative committee of senators and deputies to deliberate important
measures on demand. But pressures from Sarney and the military establishment
ensured that Guimaraes's proposal was defeated by the Senate whose
members suspected this would open the way for a shift towards a unicameral
system later in the debate.
A few days before the assembly was convened, proposals and counter-
proposals were widely discussed. On 30 January the leadership of the PMDB
in the Senate decided to elect its Mesa and its party leadership. The Chamber
was, then, forced to take the same step the following day. With the Constituent
Assembly installed, arrangements were made in order to ensure co-ordination
between the two parallel functions. Both Senate and Chamber decided not
to install any of their permanent committees and reduced their plenary
activities only for morning sessions. Following the decision to have two
completely separate leadership structures, Ulysses Guimaraes was re-elected
 The Constitution's Drafting Process, 1987-88 95

as Chamber President on 2 February. His re-election was widely criticized

by many members of the progressive wing of the PMDB and other leftist
parties, for Guimaraes' s re-election meant the accumulation of four leadership
positions and the violation of the Chamber's internal rules that prohibited
consecutive re-election of presiding officers. Nonetheless, he received the
support of Sarney and other rightist parties who disliked the alternative
candidacy of Deputy Fernando Lyra. 10
The installation of the Chamber gave Sarney the opportunity to appoint
the PMDB Deputy Carlos Sant' Anna as the leader of the government to the
house. This caused a great surprise among the many PMDB members who
argued that such a role had traditionally been played by the leader of the
majority who had already been elected. In fact, the position had existed during
the pre-1964 period. It was only the military who had decided to dispense
with it some twenty years ago. But for many PMDB congressmen, the re-
establishment of the position represented a window through which President
Sarney expected to exercise his influence upon the decisions of the Constituent
Assembly . 11
Regarding the mechanism through which the new constitution would be
formulated, two sets of alternative options were discussed. The first question
was to decide whether the constitutional debate should or should not depart
from a previous constitutional blueprint. If a blueprint was adopted, then a
decision should be made to choose whether to accept the proposed Arinos
constitutional document elaborated the previous year or to entrust an ad hoc
committee to produce it. The idea of adopting a preliminary project had been
widely discredited by virtue of the criticisms launched the previous year by
both the left and the right against the Afonso Arinos Commission.
The option of starting without any previous project was most favoured
by the progressive forces within the PMDB and other small leftist parties.
They argued for a process as open and decentralized as possible, not only
for the elected members but also for the social groups outside the assembly.
They believed that the adoption of any kind of blueprint was a dangerous
instrument of control over the business of the assembly and wanted to
establish institutional mechanisms which allowed public pressure to be
exercised on all members of the assembly. This option was eventually
adopted after a number of different specific provisi9ns were reconciled.
According to ex-Deputy Joao Gilberto, the case carried weight due to the
high popular expectations which had been demonstrated during the campaign
for an autonomous assembly. 12
The package of the assembly's internal rules was finally approved on 24
March through the adoption of Resolution No. 2. To illustrate the degree of
difficulty in reaching a consensus, it should be noted that the initial draft
96 The Making of the Constitution

I. Sovereignty and the Rights and Guarantees of Men and Women

a. Nationality, Sovereignty, and International Relations
b. Political Rights, Collective Rights, and Guarantees
c. Individual Rights and Guarantees

II. Organization of the State

a. Federal Government, Federal District, and Territories
b. States
c. Municipalities and Regions

III. Organization of the Three Powers & System of Government

a. Legislative Branch
b. Executive Branch
c. Judicial Branch and Public Prosecutors

IV. Electoral & Party Organization & Institutional Guarantees

a. Election System and Political Parties
b. Defence of the State and Society and their Security
c. Guarantees of Constitution, its Reform, and Amendment

V. Tax System, Budget, and Finance

a. Taxation, and Sharing and Distribution of Revenues
b. Budget and Fiscal Oversight
c. Financial System

VI. Economic Order

a. General Principles, State Intervention, Subsoil Property Ownership &
Regime of Economic Activities
b. Urban Questions and Transportation
c. Agriculture, Land Tenure Policies and Agrarian Reform

VII. Social Order

a. Rights of Workers and Public Employees
b. Health, Social Welfare, and Environment
c. Blacks, Indians, Disabled, and Minorities

VIII. Family, Education, Culture, Sports, Communication, Science, and

Technology
a. Education, Culture, and Sports
b. Science, Technology, and Communication
c. Family, Minors, and the Elderly

IX. Integration Committee (Comissao de Sistematizafao)

Figure 4.2 Organization of Constituent Assembly by Committees and

Subcommittees

Source: Regimento da Assembleia Nacional Constituinte.

 The Constitution's Drafting Process, 1987-88 97

received a total of 1636 amendments. Regarding the organization of the

assembly itself, the statute resolved that the assembly was to have a Mesa
composed of a president, three vice-presidents, and five secretaries. 13 The
prerogatives and duties of the Mesa were defined in similar terms to those
of the Mesa in the Chamber. The resolution also established eight committees,
called thematic committees, each to be divided into three subcommittees.
Each of these subcommittees would take testimony and draft respective
sections of the draft constitution in a two-stage process which would then
be forwarded to their respective parent committee. Each committee and
subcommittee was to be headed by a president, two vice-presidents, and a
rapporteur, which were to be integrated in proportion to party representation.
A special committee of 89 members, called the Integration Committee,
was also established to systematize and integrate the final reports submitted
by the eight thematic committees. The Integration Committee was to produce
the first complete constitutional project from which the plenary of the full
assembly would initiate its deliberations and the final floor voting of the project
in two turns. This committee was also assigned the power to pass initial
judgement on any Proposal of Decision and Resolution bill forwarded to the
assembly. The deliberation procedures, including the committees and
subcommittees, were defined in similar terms to those of the ordinary
legislative process. At every decision-making stage, decisions were to be
made by the absolute majority of members. The organization of the assembly
by committees and subcommittees is shown in Figure 4.2.
The resolution also included several provisions regarding the participation
of groups outside the assembly. Initial suggestions from any civic associations
were allowed to be submitted to the subcommittees. Public hearings were
to be held compulsorily by them. And formal proposals for amendment
were allowed to be submitted to the working draft of the Integration Committee
by petitions signed by at least 30000 registered voters. Although it did not
cancel out the possibility, no decision was made on whether to submit the
draft constitution to the voters via a national referendum.

The Distribution of Leadership Positions

Following the definition of the internal rules, the as~embly proceeded to

distribute itself into the different positions set up by the statute. At this
moment, pressures from the progressive wing of the PMDB forced the party
to select a new leader separate from its existing leadership of the Senate and
Chamber. Other parties had opted to nominate one of their existing leaders
in the Chamber or the Senate to represent them in the Constituent Assembly.
Thus, on 18 March, the PMDB held an internal ballot in which Senator Mario
98 The Making of the Constitution

Covas defeated Deputy Luis Henrique (who was the party leader in the
Chamber) by 143 votes against 107.
The election of Co vas to lead the party that had the absolute majority of
assembly members was received with contradictory expectations. The PFL
and other rightist parties, which had been profiting from the internal division
and lack of unified command of the PMDB, received the news with little
enthusiasm. For the progressive wing of the PMDB and other leftist parties,
the seriousness and aggressiveness of Covas's personality was a guarantee
of a more assertive stance of the left in the assembly. Many of them disliked
the extremely conciliatory style of Ulysses Guimarlies and Covas's speech
on his election lifted the morale of the party by recalling the historical
commitments of the PMDB. 14
A few days later, the election of the five positions for the Mesa (which
excluded the president already elected) confronted the new PMDB leadership
with the PFL. Covas refused to acknowledge an agreement which the PFL
leadership claimed to have made informally with the previous leader, Luis
Henrique, to allot the first vice-presidency and first-secretary to the PFL.
The ticket integrated by Covas included the PMDB Senator Mauro Benavides
for the first vice-presidency, who would substitute Ulysses Guimarlies in his
absence from the presidency. The PFL threatened to boycott the whole
constituent process. With no support from any other party, it was persuaded
by its own members to accept the new arrangement. 15 The ticket for the Mesa
positions was integrated and elected without the participation of the second
largest party . 16
The next step was the integration of the thematic committees and
subcommittees as well as the Integration Committee. According to the
internal rules' specifications, each thematic committee was to be integrated
by 63 members in proportion to party representation in the assembly. The
integration of the three subcommittees was to follow the same principle with
21 members each. Once the party proportionality was established, the
distribution of the membership into the different committees and subcommittees
was left for each party to decide. Within the PMDB, the allocation was made
on the basis of its members' own preferences. Application forms were
distributed among the 305 members, asking them to rank their order of
preference in relation to committee and subcommittee. Subsequently,
compromises were made to balance the overlapping preferences of the party
members, which generated some degree of internal dispute. The same method
was used by the PFL, which turned out to be much easier by virtue of its
smaller membership. For the smaller parties, the allocation was much
simpler. 17 In several cases, the membership of the subcommittees within a
thematic committee varied slightly to adjust the party proportionality.
 The Constitution's Drafting Process, 1987-88 99

The leadership positions of all committees were distributed according to

an agreement made between the leaders of the two largest parties, Mario
Covas and Jose Lauren~o. By this agreement, the PFL would take the
presidencies of all committees while the PMDB would retain all the rapporteur
positions and the two vice-presidencies. Due to party proportionality, several
adjustments had to be made to incorporate the medium-sized parties. The
distribution of leadership positions in the committees was finally settled as
shown in Table 4.1 below:

Table 4.1 Distribution of Committee Leadership by Party

Party President 1st Vice- 2nd Vice- Rapporteur

President President

PMDB 0 7 6 9
PFL 8 0 1 0
PDS 1 0 1 0
PDT 0 1 1 0
PTB 0 1 0 0

Source: Baaklini (1992: 170).

Table 4.1 shows that the PMDB retained all the rapporteur positions. This
position was considered to be of strategic importance because the rapporteur
was responsible for drafting the initial proposal, passing initial judgement
on the amendments and integrating them, if he considered it convenient, into
a single text. But in the real process, this advantage was going to be overridden
many times by the vote of the full committee (or subcommittee). Under strong
criticisms from the conservative wing of the PMDB, Covas (who was entitled
to make such appointments) secured almost all these positions for the
progressive forces of the party such as Senators Paulo Bisol, Jose Richa, Severo
Gomes and Almir Gabriel, and Deputies Egido Ferreira Lima, Jose Serra,
Artur da Tavola and Bernardo Cabral. The conservative forces received
only one of those positions, allocated to Deputy Prisco Viana. These
appointments were widely regarded as a victory of the more leftist forces
by the press. 18
The distribution of leadership positions in the 24 subcommittees was
negotiated between the party leaderships. It was more diverse both in
partisan and ideological terms. The smaller parties were given greater
participation. Yet the PMDB ensured its dominance by filling the posts either
of the president or of the rapporteur with its own members and, in some
cases, by taking both positions. The distribution of the positions is shown
in Table 4.2 below.
100 The Making of the Constitution

Table4.2 Distribution of Subcommittee Leadership by Party

Party President 1st Vice- 2nd Vice- Rapporteur

President President

PMDB 15 11 13 13
PFL 5 9 4 5
PDS 1 2 1 2
PDT 2 0 1 1
PTB 1 1 1 1
PDC 0 0 1 1
PL 0 1 1 0
PT 0 0 0 1
PCB 0 0 1 0
PCdoB 0 0 1 0

Source: Baaklini (1992:171).

STARTING FROM SCRATCH: SUBCOMMITTEE AND COMMITTEE

REPORTS

Following the dispositions of the internal statute, committees and

subcommittees ratified the positions previously agreed upon by the party
leaderships in a formal electoral ballot and proceeded to elaborate a timetable
of activities. The deliberations of substantive constitutional matters started
only in mid-April once all committees and subcommittees had been formally
installed. The first subcommittee sessions were devoted to collecting
suggestions from private citizens and parliamentarians, and to attending
public hearings. The subcommittees received 11989 suggestions from citizens
and civic organizations which had been organized previously by the information
centre of the Senate, Prodasen. 19 They also held a total of 182 public hearings
from a wide range of organizations and individuals.
After all this was accomplished, the rapporteurs prepared the first reports
to be submitted for amendments and subcommittee discussion. In this phase,
a total of 6360 amendments were presented to the different subcommittee
reports. 20 By 25 May, the subcommittees concluded their activities after all
the final reports were brought to vote, not without intense confrontations in
some of them. Put all together, the reports made up a constitutional draft of
nearly 500 articles. The first columns (subcommittees) of Tables 4.3 and 4.4
provide the most important features contained in the reports.
 Table 4.3 Selected Issues of the Political Order in the Main Phases of the Constitution-making Process
Phase
Issues Subcommittee Committee Cabral/ Cabral II Project-A Project-8 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

Model of Representative Representative Representative Plebiscite, Representative In addition to the Representative

Democracy Democracy Democracy Democracy referendum and democracy specifications of democracy
including some including some including some popular initiative including some the former stage, including some
forms of direct forms of direct forms of direct were excluded forms of direct the popular veto forms of direct
democracy: democracy: democracy: democracy: was included democracy:
plebiscite, plebiscite, plebiscite, plebicite, plebicite,
referendum and referendum and referendum and referendum & referendum &
popular initiative popular initiative popular initiative popular initiative popular initiative.
Popular veto was
rejected
0 Presidential
Executive Semi-presiden- Semi-presiden- Semi-presiden- Semi-presiden- Semi-presiden- Presidential
Power Model tial with strong tial with strong tial with more tial as previous tial with more
--
executive powers executive powers powers to the stage, starting in powers to prime
prime minister 1988 minister starting
in 1988

Presidential Five years Five years Five years Six years Five years Five years Five years
Term of Office (except Sarney) (except Sarney)

Unicarneralism/ Bicameralism Bicameralism Bicameralism Bicameralism Bicameralism Bicameralism Bicameralism

Bicameralism
 Table4.3 continued
Phase
Issues Subcommittee Committee Cabral/ Cabral I/ Project-A Project-8 1988 Constitution
(I) (2) (3) (4) (5) (6) (7)

Judicial Power Administrative Creation of con- Administrative Administrative Administrative Administrative Administrative
and financial stitutional court and financial and financial & financial & financial & financial
autonomy. is rejected autonomy. autonomy. autonomy. autonomy. autonomy.
Empowers many Empowers many Empowers many Empowers many Empowers many Empowers many
actors to initiate actors to initiate actors to initiate actors to initiate actors to initiate actors to initiate
claims of uncon- claims of uncon- claims of uncon- claims of uncon- claims of uncon- claims of uncon-
stitutionality stitutionality stitutionality stitutionality stitutionality stitutionality

Political Parties Full autonomy Full autonomy Full autonomy Full autonomy Full autonomy Full autonomy Full autonomy
for its internal for its internal for its internal for its internal for its internal for its internal for its internal
organization. organization. organization. organization. organization. organization. organization.
0 Access to mass Access to mass Access to mass Access to mass Access to media Access to media Access to media
N
- media & state media & state media & state media & state & state funding & state funding & state funding
funding is funding is funding is funding is is guaranteed is guaranteed is guaranteed
guaranteed guaranteed guaranteed guaranteed

Electoral Second ballot for Second ballot for Second ballot for Majority system Second ballot for Second ballot for Second ballot for
System president; PR for president; PR for president; PR for for president or president; PR for president; PR for president; PR for
Chamber of Chamber of Chamber of otherwise second Chamber of Chamber of Chamber of
Deputies& Deputies & Deputies& round by Deputies & Deputies& Deputies&
Plurality system Plurality system Plurality system Congress; for the Plurality system Plurality system Plurality system
for Senate for Senate for Senate Chamber to be for Senate for Senate for Senate
defined in law
 Table 4.3 continued
Phllse
Issues Subcommittee Committee Cabral/ Cabral// Project-A Project-S 1988 Constitution
(/) (2) (3) (4) (5) (6) (7)

Electoral Compulsory for Compulsory for Compulsory for Compulsory for Compulsory for Compulsory for Compulsory for
Suffrage all citizens alll8-70 year all 18-70, except al118-70 and al118-70 and alll8-70 and all18-70 and
between 18-70 olds & optional illiterates and optional for illit- optional for optional for optional for
years old for 16-18 and disabled erates and older 16-18, illiterates 16-18, illiterates 16-18, illiterates
older than 70 than 70 and older than 70 and older than 70 and older than 70

Roleofthe Extern&l defence External defence External defence External defence External defence External defence External defence
Armed Forces and the internal and the internal and the internal and the internal & internal order & internal order & internal order
order order order if order if if requested by if requested by if requested by
requested by one requested by one one of the consti- one of the consti- one of the consti-
of the constitu- of the constitu- tutional powers tutional powers tutional powers
0
I.>) tiona! powers tiona! powers
-
Federalism More taxing More taxing More taxing More taxing More taxing More taxing More taxing
powers & bigger powers & bigger powers & bigger powers & bigger powers & bigger powers & bigger powers & bigger
share of federal share of federal share of federal share of federal share of federal share of federal share of federal
revenues to revenues to revenues to revenues to revenues to revenues to revenues to
states & rnunici- states & munici- states & munici- states & munici- states & munici- states & munici- states & munici-
palides palities palities palities palities palities palities

Source: Banco de Dados do SICON, Apem, Prodosen, Senado Federal, Brasilia.

 Table 4.4 Selected Issues of the Social and Economic Order in the Main Phases of the Constitution-making Process
Phase
Issue Subcommittee Committee Cabral I Cabral 1/ Project-A Project-B 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

I. CIVIC& Extensive bill of Extensive bill of Extensive bill of Extensive bill of Extensive bill of Extensive bill of Extensive bill of
COLLECTIVE civic rights, civic rights, civic rights, civic rights, civic rights, civic rights, civic rights,
RIGHTS including habeas including including including including including including
data, mandatory habeas data, habeas data, habeas data, habeas data, habeas data, habeas data,
injunction and mandatory mandatory mandatory mandatory mandatory mandatory
wide range of injunction and injunction and injunction and injunction and injunction and injunction and
welfare benefits wide range of wide range of wide range of wide range of wide range of wide range of
welfare benefits welfare benefits welfare benefits welfare benefits welfare benefits welfare benefits
II. LABOUR
RIGHTS

-
~ Job security Guaranteed after Guaranteed except Protected against Protected against Protected against Arbitrary Arbitrary
90days grave fault & unjust or unmoti- unjust or unmoti- unmotivated or dismissals to be dismissals to be
bankruptcy vated cause vated cause unjust cause compensated compensated
proved in court according to law according to law according to law according to law

Right to strike Unrestricted, Unrestricted, Free according to Unrestricted. Unrestricted. Strikes on Strikes on
inclusive of inclusive of regulation in law Unions should Unions should essential services essential services
public public guarantee guarantee to be regulated to be regulated
employees employees essential services essential services bylaw bylaw

Union One union per One union per Plurality allowed Plurality allowed Only one union Only one union Only one union
Organization professional professional but only one but only one per professional per professional per category per
category only category only holds negotiation holds negotiation category is category is municipality
rights rights allowed allowed
 Table 4.4 continued
Phase
Issue Subcommittee Committee Cabral I Cabral I/ Project-A Project-8 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

Working Maximum of 40 Maximum of 40 No limit is No limit is Maximum of 44 Maximum of 44 Maximum of 44

Week hours hours stipulated stipulated hours hours hours

Overtime pay l 00 per cent over 100 per cent over No stipulation, No stipulation, 100 per cent over 50 per cent over 50 per cent over
regular wage regular wage except above except above regular wage normal wage, at normal wage, at
normal wage normal wage the minimum the minimum

Holiday & pay 30-day period 30-day period Holiday period Holiday period Holiday period Holiday period Holiday period
per year with per year with to be determined to be determined to be determined is not fixed. Pay is not fixed. Pay
100 per cent over 100 per cent over by law bylaw by lower law at least one-third at least one-third
monthly wage monthly wage over normal over normal
0 wage wage
VI
-
Work shift 6 hours 6 hours 6 hours 6 hours 6 hours 6 hours, except 6 hours, except
maximum maximum otherwise in otherwise in
collective nego- collective nego-
tiation tiation

Maternity 120 days 120 days As defined in As defined in 120 days 120 days and 8 120days and
Leave law or collective law days for paternity leave
convention paternity leave according to law

III. STATE& Market economy Market economy Market economy Market economy Market economy Market economy Market economy
ECONOMY
 Table 4.4 continued

Issue Subcommittee Committee Cabral I Phase Cabral// Project-A Project-B /988 Constitution
(1) (2) (3) (4) (5) (6) (7)

LandRefonn Property should Expropriation is Stipulations from Specification of Except small Expropriation is Expropriation is
Expropriation fulfil a social allowed only in the previous land subject to properties, all not allowed in not allowed in
function, but no non-productive stage are expropriation is land is subject to productive land productive land
stipulation for land, with mantained in left for ordinary expropriation
expropriation is payment in similar terms legislation
made bonds

State Petroleum explo- Petroleum explo- Petroleum explo- Petroleum explo- Retailing of Retailing is Oil and telecom-
Monopolies ration and ration, ration, extracting, ration, extracting, petroleum excluded but munications
extracting extracting, refining, refining, products could telecom sector is sectors
refining and transport, transport, be granted only brought in
0 transport import/export import/export to national finns
~
- Mineral Mineral Mineral Mineral
Restrictions on Mineral Mineral Mineral
Foreign Capital extraction, health extraction, health extraction, health extraction extraction, health extraction, health extraction, health
sector sector sector sector and oil sector, oil risks sector, oil risks
retailing contracts contracts

Other Protection for Two categories Two categories Discrimination Tax on big 12 percent 12 percent
Economic strategic sectors of finns, national of finns, national of foreign firms wealth is estab- ceiling on real ceiling on real
Issues is admitted for and foreign, are and foreign, are is explicitly lished interest rates is interest rates is
specified periods established with established with rejected approved maintained
oftime preferential preferential
treatment for the treatment for the
former former

Source: Banco de Dados do SICON, Apem, Prodasen, Senado Federal, Brasilia.

 The Constitution's Drafting Process, 1987-88 107

Among the most significant innovations were the following issues. 21 In

addition to the classical liberal rights and guarantees, a long and detailed list
of other items was also incorporated. These included the right against torture
and discrimination, the right to employment and basic welfare benefits such
as health, housing and education; right of information (habeas data); popular
initiative, plebiscite and referendum; injunction (mandado de inju~iio ); and
provisions for the protection of the family, indigenous peoples, the handicapped
and ethnic minorities. Important sectors of public opinion considered many
of these items demagogic and utopian. 22
On the economic front, the result was a text which pleased the most nco-
liberal sectors of the assembly. It reaffirmed the supremacy of the principles
of private property and free enterprise; established a loose definition of a
'Brazilian enterprise' favourable to foreign capital and firms; and limited
state intervention in economic activities including the partial breaking up of
the oil monopoly. Against the high expectations of the left and after a bitter
dispute, no provisions were made regarding the question ofland reform. The
concept of market protection (reserva do mercado) was also maintained despite
great controversy.
In relation to the social matters, the outcome was a tremendous expansion
of labour rights that pleased the left. Among the most significant were the
unrestricted right to strike inclusive of public employees, job stability after
90 days, a 40-hour working week, and so on (see the first column of Table 4.4 ).
The innovations regarding the arrangement of institutions included the
establishment of a peculiar semi-presidential arrangement with a divided
cabinet and strong presidential powers; the setting of the presidential mandate
at five years; the creation of a Council of the Republic to make internal security
decisions; the establishment of a new constitutional court; the elimination
of the decree-law and the mechanism of decurso de prazo; the return of tax
and budget powers to Congress; the allotment of more taxing powers to states
and municipalities; and the increase of the share of federal revenues to states
and municipalities (see the first column of Table 4.3).
The subcommittees were dissolved once the 24 constitutional bills were
forwarded to the rapporteur of their respective parent committees. In a two-
stage process, the thematic committees produced new reports between 25
May and 15 June 1987. First, each rapporteur integrated the three partial reports
into a single text and submitted it for amendments and discussion. A total
of 7727 amendments were received by all the eight committees in this phase.
Then, the rapporteur proceeded to elaborate a new text to be submitted again
for further amendments and discussion. Other new amendments (7184) were
108 The Making of the Constitution

presented. Finally, the resulting text with all the rejected and incorporated
amendments was put to vote to the full committee membership.
Despite the astonishing number of proposed amendments, the final reports
produced by the thematic committees offered very little alteration in relation
to the previous stage. The second columns (committees) of Tables 4.3 and
4.4 show the alteration of key issues regarding the political and the
socioeconomic order respectively. Important modifications were made over
the economic section towards a more nationalistic direction. The committee
of economic order introduced a differentiation between the concepts of
'Brazilian firm' and the 'Brazilian firm of national capital', which restricted
the participation of foreign capital and firms and granted preferential treatment
to the latter. In relation to the land reform question, the left managed to advance
some of its own propositions. Expropriations of non-productive land were
allowed with payment in bonds for land and in cash for buildings and
improvements. The section on the political order rejected the constitutional
court set up in the previous stage and introduced the optional suffrage for
those who are 16 to 18 years old and over 70. Other items remained quite
similar. Yet, due to obstruction and deadlock, the committee of Family,
Education, Culture, Sports, Communications, Science and Technology failed
to approve its report. Conflict was acute over the questions of the state
monopoly on telecommunications and mail as well as in the concessions to
broadcasting firms.
By the time this stage ended, President Sarney had broadcast his first
televised speech against the many proposalsunder discussion to shorten his
mandate to four years. 23 The more conservative forces, scattered and
disorganized, had opted for a wait-and-see policy. In fact, many of its
members, especially those maintaining business activities in their home
states, had been unable or unwilling to sustain a constant presence in Brasilia.

THE INTEGRATION COMMITTEE CONSTITUTIONAL PROJECT

The Integration Committee was to integrate and balance in a two-stage

process the final reports of the thematic committees in order to produce the
first working draft for the next stage. From the reception of the eight partial
reports until the production of the final constitutional project (the so-called
Project-A), the integration committee worked for five months and prepared
four different constitutional documents. The extreme difficulties of producing
a coherent document, combined with the problems of consensus building,
forced the committee to break twice the scheduled deadline for the conclusion
of its final project.
 The Constitution's Drafting Process, 1987-88 109

The committee was set up in early April, but did not start to deliberate
constitutional matters until it received the reports of the eight thematic
committees on 15 June. Weekly sessions were held only to discuss its internal
functioning and prerogatives as well as the Proposal of Decision and
Resolution bills which were being forwarded to pass initial judgement. The
committee was composed of 49 members in proportion to party representation,
all the presidents and rapporteurs of the thematic committees and the
rapporteurs of the subcommittees. To secure at least one representative from
each of the 13 political parties, the membership was increased to 93 instead
of the 89 stipulated by the internal statutes. Afonso Arinos was chosen to
chair the committee and the powerful position of rapporteur was assigned
to Deputy Bernardo Cabral, a former president of the bar association. Because
of later accusations of ideological bias in its membership composition, it is
worthwhile to compare the ideological orientation of the committee's
membership in relation to that of the full assembly. Table 4.5 shows that
comparison based on the assessment produced by the Folha deS. Paulo on
17 January 1987.

Table 4.5 Comparison of Political Ideologies between the Integration

Committee and the Constituent Assembly

Ideological Orientation
Membership in % Left Centre-left Centre Centre-right Right

Committee (II) (29) (24) (20) (9)

11.8 31.2 25.8 21.5 9.6
Assembly 9.3 22.5 32.4 23.4 12.4

Note: Bracketed numbers indicate the number of members.

Source: Arranged from Folha deS. Paulo, 17 January 1987.

Compared to the full assembly, the committee's percentages for the left
and centre-left categories are bigger while those for the centre-right and right
categories are smaller. The centre category is also smaller. This means that
the difference of eleven points in the left and centre-left categories taken
together was increased at the expense of the rest of the categories. On the
whole, the Table shows that the ideological profile of the Integration
Committee was clearly more leftist than that of the full assembly.
The drafting process in the committee was initiated after all the partial
reports were arranged into a single text by Bernardo Cabral. Presented on
26 June to undergo the first round of amendments, the working draft of 501
articles won the title of the 'Frankenstein project' because of its evident lack
110 The Making of the Constitution

of coherence. Some confusion regarding the type of amendments to be

submitted resulted in a reduced number of them. By contrast to previous stages,
only 5615 amendments were introduced by the parliamentarians. The internal
statute stipulated that only 'drafting' amendments were to be submitted to
this committee. A loose definition of that concept was not adopted until the
resulting document (substitutivo um) was put forward for the second round
of amendments.
On 9 July, Cabral produced a new document of 496 articles, known as
the substitutivo number one, or Cabral I, which incorporated a number of
the proposed amendments. The third columns of Tables 4.3 and 4.4 provide
the overall tone of the new document. The general tendency was to improve
the questions concerning the arrangement of the political institutions, while
making many of the provisions of the economic and social order more
flexible by incorporating abstract principles and by leaving them for later
regulation in ordinary or complementary laws. For instance, the division of
power between the president and the prime minister was made clearer with
stronger powers placed in the hands of the latter. It also adopted a 'mixed'
electoral system for the integration of the Chamber of Deputies similar to
the German model. The compulsory vote was maintained but the optional
vote for those who are 16 to 18 years old and over 70 was eliminated.
llliterates and the disabled were also excluded.
· The specific definition of the controversial provisions regarding labour
rights was left for regulation in ordinary legislation. The dismantling of the
corporatist structure was also attempted by adopting a timid mechanism
regarding the organization of trade unions. The plurality principle for the
organization of trade unions was adopted but it stipulated that representation
was to be held only by one union of the same category within the same territory.
Cabral I proposal satisfied none of the political forces. For the left, who
wanted to give constitutional status to what was called the 'social conquests',
the project was regarded as one step backwards. For the right, the text was
still too radical and incoherent. And yet, the weakening of the presidentiat
powers encountered the hostility of the forces aligned with President Samey
which were grouping within the so-called Democratic Centre. In order to
avoid wasteful discussion over the definition of the 'adequation' amendments,
the committee agreed to submit the draft document for a new round of
amendments which would include now amendments of content. Therefore,
between 11 July and 18 September, the rapporteur Bernardo Cabral worked
on the writing of the new draft.
The preparation of the substitutivo number two, or Cabral II, text was
characterized by intense negotiations and pressures from all sides. Groups
cutting across party lines started to articulate amendments and press Cabral
 The Constitution's Drafting Process, 1987-88 111

to write them down in the new working draft. Among others, the Group
Hercules,led by Deputy Euclides Scalco (PMDB), and the Group of32 under
the leadership of Senator Jose Richa (PMDB) and Sandra Cavalcanti (PFL)
were formed at this time.24 The lobbies, including the military, businesses,
banks, labour unions, rural workers, the churches, and so on, were also very
active trying to imprint their influence upon the rapporteur's draft. As the
rapporteur was free to adopt or reject any of the proposed amendments, Cabral
became the central figure during the preparation of the new draft. Pressures
from all sides were now intense, particularly over the questions of the
presidential mandate, the system of government, land reform, job security
and some other labour rights. 25 Cabral entertained 20790 amendments
submitted by the parliamentarians and 83 popular amendments submitted
by different groups outside the assembly. 26 A proponent of each popular
amendment was given the opportunity to make his/her case before the
committee's plenary in late August. The difficulties in producing a coherent
and acceptable project caused great regret about the mistake of not having
accepted any preliminary blueprint.
On 18 September, Cabral finally presented his second constitutional
blueprint to be discussed and voted on by the committee. The hallmark of
the new project of264 articles and 72 transitory provisions was conciliation,
particularly on the critical questions of social and economic order. The
fourth column of Table 4.4 shows that the tendency of sending to ordinary
or complementary legislation many of the critical provisions of the social
and economic order was accentuated. While maintaining the differentiation
between two different types of firms, there was an explicit provision against
the discrimination of foreign firms. Regarding the arrangement of political
institutions (see the fourth column in Table4.3), Cabral introduced a number
of innovations in order to strengthen the parliamentary arrangement and
neutralize the opposition of President Sarney against that system. The
president was now to be elected by direct suffrage through the majority system
or by the second-ballot system; if no candidate received more than 50 per
cent of the votes, Congress would choose the president in the second ballot
among those who got the most votes. The electoral system for the integration
of the Chamber was, however, left to be defined later on in ordinary legislation.
The optional vote for those who are over 70 and the illiterate was introduced,
but the mechanisms of direct democracy were eliminated. The introduction
of the semi-presidential system was to take place from 1988, but as
compensation the presidential mandate was fixed at six years (inclusive of
Sarney). On the whole, the new document contained provisions to please in
some way or another all the wide range of interests.
112 The Making of the Constitution

The thirty-second extraordinary session of the Integration Committee to

vote out the project began on 24 September, to conclude almost two months
later. Under the original timetable, the floor voting of Project-A by the full
assembly to be delivered by the Integration Committee was to start on 20
September. Yet the project had still to be produced by the committee. Thus
the deadline was postponed to 28 October and again to 18 November. The
long voting session was rough and tough. The voting procedure followed
by the committee consisted of putting into vote first each title of the second
substitutivo, or the Cabral II proposal. If the title was not approved, then the
corresponding title of the first substitutivo, or the Cabral I text, was brought
into discussion. But the approval of one of the two titles was made without
affecting the destaques, or specific amendments within the title which were
required by a certain number of parliamentarians to be voted out separately.
When the voting session started, there was a total of 8000 destaque requests.
The Mesa of the committee had, therefore, to be expanded and six assistant
rapporteurs were appointed in order to cope with the workload of the
committee. Agreements between the party leadership were forged for certain
provisions which were not usually honoured by the members of the committee.
The final product of the Integration Committee was delivered on 18
November. The constitutional Project-A contained now 271 articles and 63
transitory provisions. The fifth columns of Tables 4.3 and 4.4 (Project-A)
show that Cabral's proposal was substantially modified. Through the voting
process, the majority vote of the committee managed to restore most of the
guarantees which had been abandoned previously in Cabral II. Among the
most critical points regarding the institutional arrangement was the decision
to set future presidential mandates at five years but to shorten Sarney's
mandate to four years. The new semi-presidential system was to operate after
the adoption of the new constitution. The mechanisms of direct democracy
were reintroduced as well as the optional vote for those who are 16 to 18
years old, the illiterate and those over 70. The proportional representation
system for the Chamber of Deputies was also re-established. Regarding the
social and economic order, the decisions were equally striking. The moderation
and flexibility of Cabral's proposals were replaced by more assertive
provisions, particularly regarding the labour rights. Three additional provisions
incensed the most neo-liberal forces: expropriation for land reform was
extended for all productive and non-productive land; the distribution of oil
was to be granted only to domestic firms; and a new tax on wealth was
established. All the diverse forces on the left considered the resulting project
of the Integration Committee a success. The forces on the right considered
that all the progress achieved in the Cabral II proposal had been reversed by
 The Constitution's Drafting Process, 1987-88 113

Project-A. Senator and CNI leader Albano Franco considered that the
provisions of the document would 'make the country economically inviable' .27

THE EMERGENCE OF THE CENTRA.O COALITION

By the time the Integration Committee concluded the constitutional Project-

A, a rain of criticisms against the document were being articulated by a number
of different actors within and outside the assembly. The main sources of these
criticisms were centred on the critical questions of social and economic
order and, to a lesser extent, on the questions regarding the system of
government and the length of President Sarney' s term in office. For the most
neo-Iiberal sectors of the assembly, many of the provisions in the social and
economic order were excessively populistic, demagogic, nationalist and
interventionist. They argued that the PMDB leader, Mario Covas, had stacked
the Integration Committee with a more leftist membership profile which did
not correspond to the ideological orientation of the majority of the assembly.
They considered that the document produced by the Integration Committee
did not reflect the opinion of this majority but the views of the leftist minority
in control of the committee. In an interview, Covas argued that the more
leftist orientation of the Integration Committee was justified because the PMDB
(which was the majority) was, after all, a centre-left party. 28 As it was shown
in Table 4.5, the Integration Committee had indeed a more leftist profile than
that of the whole assembly. 29
The project of the Integration Committee had still to be ratified by the full
assembly, but, under the rules adopted at the beginning of deliberations, the
possibilities to alter the provisions of the document were limited. Under the
rules passed in March, the voting by the full assembly would be as follows:
the committee project would be voted out first by titles or chapters. Once
one of these was approved, in toto, the assembly would consider the destaques
(which could modify, replace, suppress or add any fragment of the approved
text), which could be requested by 35 members, as well as the amendments.
To alter one specific item within the title or chapter previously passed, the
destaque had to obtain a minimum of 280 votes. If it was defeated or lacked
the quorum of 280, the provision of the original text would prevail. Given
the prohibition of proposing destaques which dealt with more than one
clause, at this stage, and the difficulties in sustaining a constant majority of
280 to replace article by article of the base text, there was an advantage in
favour of the document formulated by the Integration Committee.
Within the assembly, a group of leaders from different parties, such as
Luiz Eduardo (PFL), Ricardo Fiuza (PFL), Jose Lauren<;o (PFL), Cardoso
114 The Making of the Constitution

Alves (PMDB), Gastone Righi (PTB) and Afif Domingos (PL), started to
hold regular meetings to discuss the actions to be taken before Project-A
reached the plenary for final deliberations. 30 The first task was to organize
a broad coalition among the dissatisfied elements from the PMDB, PFL, PDS,
PTB and other rightist parties to alter the voting procedures which could allow
extensive amending possibilities. The second step was to organize and
articulate all the wide range of interests into single titles and chapters to be
submitted as amendments. Contacts with potential allies outside the assembly
also started to be worked out. These included the different sectors of the business
community and President Sarney.
On several occasions since the beginning of deliberations, President
Sarney had publicly expressed his opposition to the 'dangerous adventure'
of adopting any form of parliamentary government and against the intention
of many congressmen to shorten his mandate to four years. Through his
representative in the Chamber of Deputies, Deputy Carlos Sant' Anna, he
had made several unsuccessful attempts to organize a coalition in support
of his political objectives. The decisions of the Integration Committee over
these two critical issues had obviously infuriated him. But this time there
were a number of potential allies with whom log-rolling and non-parliamentary
favours could be used more effectively.
The social and economic provisions passed by the Integration Committee
had also stimulated the mobilization of the business sectors. 31 In addition
to the Uniiio Brasileira de Empresarios (UBE), which had been organized
in 1986, the business leadership decided to create the Frente Nacional pela
Livre lniciativa (FNLI) to integrate all the diverse interests of the business
community and to co-ordinate the actions between these and its potential
allies in Congress. Mario Amato, among other business leaders, had also
urged President Sarney to use all the powers of his authority to help to shape
the decisions of the assembly. 32
From the early days of November, several informal meetings in Brasilia
brought together congressmen and members of the business community.
Deputy Carlos Sant' Anna was also there to represent the interests ofPlanalto.
The purpose was to organize and co-ordinate the efforts to oppose the
document of the Integration Committee. Several strategies of action were
discussed, including the option of forcing the assembly to adopt one of the
many constitutional projects which were circulating. This option was discarded
because of its negative political impact and the great difficulty in conciliating
the diverse interests into a single text. The agreement was reached to force
an alteration of the internal rules of the assembly to permit the introduction
of amendments by title and chapters. Thus, one group of congressmen was
put in charge of collecting the required 280 signatures of assembly members
 The Constitution's Drafting Process, 1987-88 115

to be able to amend the rules, while another was to receive, organize and
articulate into single title amendments all the diverse interests to be presented
to the assembly. 33
On 3 December, a broad coalition, calling itself the Centriio (Big Centre),
finally coalesced around the question of the internal rules alteration, when
the proposal to discuss the rules was accepted by 290 votes. Cutting across
party lines, this broad coalition of assembly members included not only most
of the PFL, PDS, PTB, PDC and PL, but also over 100 members of the
PMDB. 34 Under the leadership of Carlos Sant' Anna and others, these
members of the PMDB had been grouped previously into a loose coalition
in support of Samey, which was called the Democratic Centre. The proposal
of the Centriio included the following points: (i) a new round of amendments
would be reopened which would include entire amendments to titles, chapters,
sections, subsections and clauses; (ii) any amendment running counter to
the Integration Committee draft, which had an absolute majority of signatures
(the so-called collective amendments), would take precedence in voting. The
importance of this proposal was that by securing preference in voting, a coalition
could more easily be sustained. Replacing article by article of the Integration
Committee's document would require an unlikely recomposition of the
coalition numerous times. Once the discussion was opened, the proposal was
processed for over one month. Many controversies and negotiations took
place until the Resolution No. 3 was finally approved and published on 5
January 1988.35
Once the Centriio had secured this procedural battle, Deputies Jose Linz
and Luiz Eduardo started to prepare the amendments to the critical sections
of the Integration Committee's project to be discussed, before the vote
deliberation in the plenary of the assembly was initiated. The collection of
signatures to guarantee preference in voting was the last part of the process.
In many cases, to secure those signatures the leaders of the Centriio had to
carry out intensive negotiations among the diverse membership of the
coalition. This episode revealed that the divergences were wide in many issues.
Nonetheless, there were certain fundamental non-negotiable issues over
which a broader common agreement existed. Among the most significant
were the following points: job stability, presidential system of government,
non-productive land for expropriation purposes; five-year mandate for
Sarney; right to strike in essential services; and clear principles on free
enterprise. There were also some other less consensual issues, such as the
elimination of distinction between 'Brazilian firm' and 'Brazilian firm of
national capital', the elimination of restriction to foreign capital regarding
oil distribution and mineral extracting, the ·electoral enfranchisement of 16-
116 The Making of the Constitution

year-olds, the elimination of mechanisms of direct democracy, union

organization and other labour rights.

THE FORMATION OF THE TEXT: THE FIRST VOTING ROUND

The Mechanics of Voting

By the new rules, the plenary of the full assembly would conduct its final
deliberations according to the following order: (i) individual and collective
amendments were to be submitted; (ii) the rapporteur was to organize them
and pass initial judgement until20 January; (iii) requirements for destaques
(to replace, modify or suppress a word, phrase or article) on the different
parts of the text or the group of amendment proposals were to be presented
by congressmen as well as their requirements for voting preference; (iv) the
assembly was to start the process of voting.
The mechanics of voting would be developed according to the following
sequence: (i) chapters within each title would be first brought into vote
according to their order in the constitutional Project-A, prior to considering
the scheduled destaques; (ii) preference in voting would be given to the
collective amendment of each chapter backed by 280 signatures; (iii) if
approved, the corresponding chapter of Project-A would be definitely tabled;
(iv) if the collective amendment is rejected or lacked the quorum of 280, it
still has another chance 24 hours later; (v) if rejected for the second time,
then the corresponding chapter of Project-A is brought into vote; (vi) if
approved, the process continues, but if it is also rejected then the rapporteur
has 48 hours to propose a new text to resolve the impasse; (vii) once a base
text is approved, the assembly moves on to vote all the scheduled destaques,
including those parts which were previously excluded from the base text (a
new mechanism called the Destaque para Vota~ao em Separado- DVS) as
well as those intended to modify, replace or alter any written fragment of
the approved text; (viii) the last vote, in toto, is undertaken over the group
of amendment proposals which did not obtain special voting preference,
according to the rejection/approval arrangement made initially by the
rapporteur.

The Voting Process

Once the period for amendment submission was opened, 2021 collective and
individual proposals were turned in. The Integration Committee, which was
originally to organize the voting process, was dissolved. It was replaced by
 The Constitution's Drafting Process, 1987-88 117

the individual figure of the rapporteur until the rest of the deliberations. For
the technical questions of draftsmanship, a Drafting Commission was set up
to review the final version of the document. The assembly finally began the
long voting process on 27 January 1988, almost one year after the inauguration
of the constitutional deliberations.
Early in the voting process, it became clear that the Centriio coalition would
have great difficulties in holding itself together. During the vote on the
preamble and on several chapters of the first title, the collective amendments
sponsored by the Centriio with more than 280 signatures failed to obtain the
required absolute majority of votes (280) for approval in the plenary of the
assembly. A complex mechanism of informal negotiation and compromise
was thus developed to avoid deadlocks and speed up the voting process.
Agreements were hammered out by the party leaderships (colegio de lideres),
to arrange the order of voting. This became the main forum of negotiations
until the end of the constitutional deliberations.
Typically, these agreements involved the following pattern. The amendment
presented by the Centriio was adopted by the party leaderships after it was
subject to alterations and arrangements in order to reach a common consensual
denominator through a complex process of sub-amendment fusion. This
text was then brought into the full assembly vote, prior to considering all
the minor suppressive, additive, replacing or altering destaques (accepted
only if signed by 187 signatures) on the text, to be voted out separately. To
avoid useless deadlocks in the forging of the base text, party leaders agreed
to take away the most controversial points and to bring them into a special
separate vote. This mechanism was called the Destaque para Votariio em
Separado, or DVS.
Since the base text represented a compromise version among the largest
groups within the assembly, it was normally approved by the absolute
majority without any difficulty. Only in the chapter on the land reform, where
a compromise was not possible, was the assembly called upon to vote on
two divergent texts: the Centriio amendment proposal and the Integration
Committee proposal. Both proposals failed to obtain the absolute majority,
falling into what was called buraco negro (black hole). A third version was
later on approved. As to the separate vote for destaques on specific items of
the base text, some votes were won by Centriio and others by supporters of
the Integration Committee's proposal.
Many provisions from the Integration Committee's document were in fact
reintroduced through the voting of destaques. 36 Although difficult to measure,
ex-Deputy Joiio Gilberto considered that almost 70 per cent of the content
of that document made its way into the new constitutional project through
that window. 37 The Centriio proved indeed unable to hold itself together on
118 The Making of the Constitution

a majority of issues. Mostly it exercised its power on key issues such as the
system of government, the land reform and the length of President Sarney's
mandate. Yet, in addition to the Centriio and other existing groups on the
right and the left, several other overlapping parliamentary groups were
formed at this stage in support of certain specific issues facing the assembly.
Cutting across party lines, among these new groups were the Parliamentary
Front for Agriculture in opposition to the question of land reform, the
Nationalist Parliamentary Front, the Evangelical group in favour of strict
moral standards in society, and the Northeasterners.
The first round of vote deliberation was finally concluded on 30 June, five
months after its initiation. The constitutional Project-B. voted out in this stage,
contained now 245 articles and 77 transitory dispositions, some 30 clauses
less than the document of the Integration Committee. The sixth columns
(Project-B) of Tables 4.3 and 4.4 show the main features of this constitutional
text. The document contained a number of innovations which did not appear
in any of the previous drafts. In relation to the political institutions, among
the most significant were the adoption of the presidential system of government
and the addition of the popular veto to the mechanisms of direct democracy
which were contemplated in previous drafts. The document also included a
provision calling for a plebiscite in five years' time to decide between the
monarchical or the republican form of government as well as between the
presidential or the parliamentary system of government. Another one mandated
a constitutional revision in five years' time as well. Regarding the social and
economic order, the most significant innovations were the adoption of
paternity leave, a 12 per cent ceiling on real interest rates, the prohibition of
private capital to hold a majority of shares in the telephone companies, the
prohibition to expropriate productive land for land reform purposes, and the
monthly monetary correction according to inflation for all pensioners. On
the critical set of labour rights, the resulting provisions showed a clear
compromise arrangement by which both the right and the left conceded
mutually part of their original demands.

THE LAST CORRECTIONS: THE SECOND VOTING ROUND

In the second half of July, the constitutional draft was put forward to the
plenary of the assembly for the second voting round. 1792 suppressive or
corrective amendments had been submitted previously and organized by the
rapporteur-general, Bernardo Cabral. According to the dispositions of the
Mesa, the voting procedure would be conducted in the following manner:
the document passed in the previous stage would be brought into vote for
 The Constitution's Drafting Process, 1987-88 119

its approval in toto. Only after this was done would amendments be considered.
No new amendments of content could be incorporated into the text. Only
suppressive or corrective amendment proposals were to be considered.
This second round of approval procedure was initiated in a climate of high
political tension. Under the leadership of Senators Mario Covas and Fernando
Henrique Cardoso, a major portion of the PMDB's progressive sector had
decided to leave the party, as they claimed it was no longer honouring its
historical commitments, and to organize the PSDB a few days before
constitutional deliberations were resumed. Deputy Nelson Jobim was then
elected for the PMDB leadership with intense tension within the party.
Another source of political tension was the intensification of President
Samey's criticisms since the end of the first voting round. Initiatives to
commence the process anew or to extend further the process to allow another
phase of extensive amending were promoted with the support of Planalto.
Fleischer argues that because of the prospects of losing control of the 1989
budget, Sarney had opted for an obstructionist strategy in an attempt to
delay the promulgation of the new constitution until 1989. 38 A critical
moment was reached when, in a televised speech on 26 July, Sarney
condemned the decisions of the Constituent Assembly in the first draft of
the new constitution which he claimed would lead the country to bankruptcy
and ungovernability.
In response to the president's speech, Ulysses Guimaraes brought the
constitutional document into vote the next day, prefaced by an impassioned
speech. The assembly approved the complete document by an overwhelming
majority of 403 to 13 votes. This vote was a clear confirmation of the
decisions of the previous stage. The proximity of the municipal elections
scheduled for November speeded up the vote deliberations enormously. The
party leaderships worked as in the previous stage to forge compromises. With
little room for amending, the second round ended on 2 September, after months
of deliberations. The main features, in terms of content, of the final constitution
are shown in the seventh columns of Tables 4.3 and 4.4.
The 30-member Editing Commission (Comissao de Reda~iio), appointed
by Ulysses Guimaraes after the Integration Committee was dissolved as a
result of the Resolution No.2, moved then to have the final review of the
document. Yet 833 editing amendment proposals w~re submitted to the
commission. On 22 September the document was given final approval by
the assembly. A few days later, on 5 October 1988, the new constitution was
promulgated in a solemn session of the National Congress.
Among the leaders of the left and the progressive sectors, the new
constitution was seen, on the whole, as a victory. 39 There existed the
conviction that the outcome had surpassed the expectations and the effective
120 The Making of the Constitution

strength of their forces. On the right, the assessment of the constitutional

document was rather negative. It was regarded as an archaic and backward
document which would hinder the development of the country. 40

THE TEXT OF THE CONSTITUTION

The text of the constitution is organized into nine titles, which are, in tum,
divided into several chapters, sections, subsections, articles and items. It
contains 245 articles, some of which, like article 5, have as many as 77 items.
It also contains 70 transitory provisions. A significant number of new laws
will be required to complete the legal framework outlined by the constitution:
314 ordinary laws and 56 items of complementary legislation. 41
The most significant innovations include the following features (see Table
4.6). Regarding the organization of democratic instituti(,)ns, 42 Congress
regained the power to elaborate and approve the whole budget of the Union,
determining expenditure priorities, investment policies and the priorities of
the government. The Joint Budget Committee, representing the Senate and
the Chamber, became a permanent committee and was now able to hold
sessions all year round to oversee the execution of the budget. The standing
committees were also strengthened by granting them the power to approve
laws, under certain conditions, without the need to refer them for floor
ratification, and to call state ministers for testimony. The Parliamentary
Inquiry Committees (CPI) were given judicial investigatory powers.
The future presidential candidates will be elected through the second-ballot
system, which presumably will ensure broad consensus and legitimacy to
the president. The decree-law with decurso de prazo was replaced by the
medida provisoria or provisional measure. Unlike the former, unless approved
by the Congress within 30 days, the medida provisoria is automatically null
and void. Other features include the adoption of mechanisms of direct
participation such as the popular initiative, the plebiscite and the referendum.43
The judiciary was also strengthened by introducing several provisions to
guarantee its administrative and financial autonomy and by empowering a
set of new collective actors which can now appeal to the Supreme Court.
The organization of the federation underwent sweeping changes, particularly
to strengthen the financial power of the states and municipalities. States and
municipalities gained the power to have their own tax bases, and their share
of federal revenues had been increased. 44 By the new scheme, the share of
IPI (tax on industrialized products) and theIR (income tax) to be allocated
by the Union to the Fundos de Participarao, from which the resources to
states and municipalities are distributed (according to certain criteria), was
 The Constitution's Drafting Process, 1987-88 121

Table 4.6 Change and Continuity of Key Issues in

the Brazilian Constitutional Order

Issue 1967~9 Constitution 1988 Constitution

POLITICAL SYSTEM
MODEL:

Type of Government Highly centralized presidential Presidential system with

system strong legislative oversight &
veto powers

Bilunicameralism Bicameralism Bicameralism

Powers of the Chamber of Highly restricted. Limited Strong overseeing powers &
Deputies legislative powers presidential veto overridden
by absolute majority

Electoral System for Proportional Representation Proportional Representation

Chamber of Deputies

Political Parties Compulsory two-party system Free creation and internal

until 1979 & strong requisites organization
for their legalization after
1979

Distribution of Federal Highly centralized Strongly decentralized

Tax Revenues

ECONOMIC MODEL:

State & Economy State intervention comple- State intervention only to

ments market economy. guarantee national security &
Special protection for strategic collective interest. Special
national sectors is stipulated protection for strategic
national sectors is stipulated

State Monopolies Oil and telecommunications

sectors

Foreign Investment Proscribed from mining and

health sector

Agrarian Reform Statute of Land provides legal Productive land cannot be

instruments to facilitate ex pro- expropriated. Legal instru-
priation of almost any type of ments make agrarian reform
land difficult

INDIVIDUAL RIGHTS:

Torture There is no mention, neither in Torture is made a criminal

the Constitution nor in law, on offence
crimes of torture
122 The Making of the Constitution

Table4.6 continued
Issue 1967-69 Constitution 1988 Constitution

Prison An order by any police Only judicial authority is

authority is enough to entitled to issue written &
imprison any person grounded orders for imprison-
ment

Censorship Public entertainments are There is no censorship at all,

subject to previous censorship except age classification for
public entertainments

Right of Defence Only individuals could appeal Collectives, e.g. political

against abuse of public power parties, unions, etc., can also
appeal

Mandate of injunction It did not exist Protects constitutional rights

not yet covered by legislation

Habeas data It did not exist Any person can get informa-
lion about him/herself held by
POUTICAL RIGHTS: the government

Voting Only older than 18 years were Compulsory vote for 18-70-
allowed to vote year-olds and optional for
16-18, the ilJiterate & older
than 70

Plebiscite It was necessary only for the

creation of new municipalities

Popular Initiative It did not exist In the municipalities 5 per cent

of electors can present law
project to municipal chamber.
Nationally, 1 per cent of
electorate distributed in five
states with a minimum of 0.3
per cent each can present law
project to Chamber of
Deputies

LABOUR RIGHTS:

Working Week Constitution stipulated 8-hour 8-hour day is maintained but

day regardless of uninter- the working week is fixed at
rupted shifts 44 hours. Uninterrupted shifts
are fixed at 6 hours daily

Overtime Pay Constitution stipulated com- Overtime pay is fixed at 50 per

pensation above normal pay. cent above normal pay
Law stipulated 24 per cent
above
 The Constitution's Drafting Process, 1987-88
Table 4.6 continued
Issue 1967~9 Constitution
Holidays & Pay Just the general principle of
holidays was in the
Constitution. Law established
only full pay if 30-day period
or one-third above normal pay
if only 20-day period was
taken
Maternity Leave Constitution stipulated just the
principle
Paternity Leave It did not exist
Pension Scheme Only male workers had the
right to retire after 35 years of
service
Right to Strike It was regulated by the law,
which prohibited strikes in
essential services and granted
the state the power to decide
on the legality of them
Union Organization Unions were linked to the state
which regulated their creation,
internal organization and func-
tioning
SOCIAL BENEFITS:
Health Municipalities invest 6 per
cent of what they received
from federal tax money
Education Federal government employed
13 per cent of its budget and
municipalities 25 per cent
Divorce Only one divorce was allowed
123
1988 Constitution
One-third above normal pay is
guaranteed as holiday pay for
a 30-day period.
Constitution guarantees 120
days leave
The principle is guaranteed in
Constitution
Male and female workers can
retire after 35 and 30 years of
service respectively. No
retirement pay should be less
than one minimum wage
Right to strike is unrestrictedly
guaranteed for all workers.
New legislation will establish
measures to be taken in case of
strikes in essential services
Creation, internal organization
and functioning of unions is
free from public control. No
more than one union per
category is allowed within the
same territory
30 per cent of the money for
social security is to be spent in
health services
18 per cent of federal budget
must be spent on education as
well as 25 per cent of the state
and local budgets
No restiction on the number of
divorces
124 The Making of the Constitution

increased from 14 to 21.5 per cent for states, and from 17 to 22.5 per cent
for municipalities. IPI and IR constitute the most important revenue sources
of the federal government.
Regarding individual and collective rights, in addition to all the classical
liberal rights, some of the innovations introduced by the constitution are the
following. The right of information (habeas data), the penalization of torture
and racial discrimination, and the right of defence (mandado de seguran~a)
were extended to include all collective actors (mandado de seguran~a
coletivo) and the adoption of the mandate of injunction (mandado de injucao ).
Political rights were given to citizens at the age of 16, and the right of
illiterates to vote was confirmed. Except for age classification, all types of
censorship were constitutionally prohibited.
On the social and economic rights, the constitution made more innovations.
It incorporated numerous provisions for indigenous peoples, women, ethnic
minorities, the disadvantaged, etc. Education spending was increased con-
stitutionally from 13 per cent to 18 per cent of total federal expenditure. Rural
labour was granted equal treatment to urban workers. Also, it guaranteed
the independence of unions from the state, civil servants' right to join unions,
the extension of the right to strike, and an increase in the level of freedom
of collective bargaining. This altered partially the traditional corporative system,
but some elements were retained, such as the sindicato unico and the
compulsory contribution to the union (impasto sindica/). 45
5 Presidential versus Parliamentary
Government in the Constituent Process

The inauguration of the constitutional convention was expected to involve

a comprehensive examination of the prevailing political structure. Some kind
of institutional reformulation was particularly expected regarding certain
components of the political system which were considered a deterrent to the
full implementation of a workable democratic system. The institutional
imbalance of power between the executive and the legislative branches of
government in favour of the former, imposed by the military, made certain
parts of the agenda to be discussed by the Constituent Assembly.
In that respect, it was clear from the beginning that the scope of the
discussion would not be limited exclusively to the possible corrective
measures aimed at restoring the balance of the traditional presidential model.
The possibility of implementing an entirely new framework of government,
based on the fusion of powers rather than on the traditional tripartite division
of central government authority, was put forward even before the starting
of the constitutional debates. Fuelled by the revival of the long-standing
academic and poli.tical interest in parliamentary government, and later by
the political circumstances after Tancredo Neves's sudden death, the central
cleavage of discussion was set in terms of a dispute between the presidential
versus the parliamentary principles of government organization.
The short-term political implications of an eventual shift towards a
parliamentary government turned the presidential versus parliamentary
dispute into the most polemical issue throughout the whole constitution-making
process. It occupied not only a more prominent place in the agenda of
modernization of political institutions, in which technically speaking it
should have been given less importance than the modernization of the
electoral and the party systems. Also, all other constitutional issues took, in
many ways, secondary importance in relation to this question. This chapter
analyses how the debate evolved and what factors influenced the outcome.

HISTORICAL BACKGROUND

During the struggle against the authoritarian regime, the opposition never
questioned the presidential framework of government which, at least on paper,
had been part of the republican tradition of Brazil. The obvious reason for
this is that the main concern at that time was naturally the general aspect

125
126 The Making of the Constitution

regarding the restoration ofthe rule oflaw, electoral impartiality and human
rights. There was, however, an underlying assumption regarding the system
of government in all PMDB documents. The PMDB opposition insisted that
if democracy was ever to be re-established in Brazil, the powers of the
federal executive were to be greatly curtailed and those of the National
Congress extended accordingly. The framework underlying those demands
was clearly the 1946 Presidential Constitution. 1
When the Constituent Assembly was installed in February 1987, none of
the major political parties presented a concrete proposal regarding the
organization of government or any other constitutional issue. Nor did the
elections of 1986 provide the conditions to discussion this question, as
President Sarney enjoyed the highest rates of popularity. In political circles,
the pre-Constituent Assembly discussion was centred rather on the specific
questions concerning the organization of the would-be Constituent Assembly.
An opinion poll published by Veja right after the inauguration of the
assembly, showed that a quite considerable number of assembly members
had a preference for the parliamentary option or one of its variants. 2 The
opinions about the elimination of institutional constraints to restore the
power balance of congress were more neatly expressed. Over 75 per cent of
the assembly members agreed that the decree-law, the mechanism of decurso
de prazo, and the constitutional constraint for congressional modification
of the budget had to be removed. 3 Those instruments were considered by
most of them the very essence of presidential authoritarianism.

The Historical Roots of the Parliamentary Option

The discussion on the question of the institutional organization of government

started only in 1986, when the 50-member Afonso Arinos Commission
debated the constitutional project that had been requested by President
Sarney the previous year. Under the influence of prestigious scholars such
as Afonso Arinos, Bolivar Lamounier and Helio Jaguaribe, the committee
suggested an institutional innovation by the introduction of a semi-presidential
form of government in Brazil, following roughly the French model.
Sophisticated arguments regarding institutional stability and efficiency were
advanced to substantiate that choice.
The sponsors of the institutional innovation grounded the proposal on
technical conclusions drawn up from what they believed were the shortcomings
of the Brazilian democratic institutional history .4 By doing this, they were
reviving an old preoccupation of Brazilian political thinking. Since the
abolition of parliamentary monarchy in the late nineteenth century, the
 Presidential versus Parliamentary Government 127

parliamentary option has always been in the minds of some Brazilian scholars
and politicians. The character of the transition to a republican-presidential
system in 1889left an unresolved dispute between presidentialists and par-
liamentarians which was resurrected continuously in times of political turmoil
and institutional reformulation. Many have cultivated the belief that the
presidential system introduced in 1889 was one of the main factors responsible
for the continuous institutional breakdowns of the twentieth century. Based
on that argument, Deputy Raul Pilla proposed a constitutional amendment
in 1949 to institute a parliamentary government. Acting as a rapporteur of
the examining committee, Afonso Arinos recommended the rejection of the
bill. A few years later, however, he became one of the most enthusiastic
advocates of parliamentary government. With the resignation of President
Quadros in 1961, Congress had no difficulty in adopting the parliamentary
option as the solution to the political crisis. The country lived under a hybrid
parliamentary system for 16 months until the new president, Goulart, managed
a return to a presidential system in early 1963.5 Tancredo Neves himself
considered informally, at one point, the possibility of making the transition
by establishing a divided executive in a sort of parliamentary system in which
the political participation of the military would be institutionalized through
the Chief of State, and thus eliminating a strong destabilizing factor of
Brazilian politics.6
The whole constitutional project prepared by the Afonso Arinos Committee
was received with very little interest by public opinion and political
organizations. The left had, since the very beginning, condemned the idea
of entrusting a 'committee of notables' to write the constitutional project,
while the right disliked the 'populist and demagogic' character of the
document. Regarding the system of government, the interest was also blurred.
Few press articles appeared before the installation of the Constituent Assembly
commenting on the innovations, and most of them were written by former
members of the Arinos Committee.7 The discussion, however, was carried
out in terms of presidential vs. parliamentary forms of government rather
than in terms of the possible corrective measures of the traditional presidential
model. At the end, President Samey decided not to forward the project to
the Constituent Assembly .and buried it. But the document entered the
assembly through the back door and became in fact a sort of 'semi-official'
project to which many parliamentarians turned.
Also, the commission chairman, Afonso Arinos de Melo, managed to take
his parliamentary convictions to the heart of the Constituent Assembly. He
was elected senator by Rio de Janeiro and, later on, became chairman of the
128 The Making of the Constitution

powerful integration committee where he was able to organize personally

the pro-parliamentary campaign.

The Political and Economic Factors

In addition to the group of disinterested assembly members who followed

the genuine parliamentary convictions of the Afonso Arinos Committee,
another group of parliamentary supporters began to emerge motivated by
the desire to terminate the Sarney government as soon as possible. Due to
the opportunistic appearance of this motivation, no member adhered openly
to this position. But the political reactions of important political forces,
mainly from the PMDB, following the transition to civilian rule and the
economic failure after the Cruzado Plan, made it too obvious to be ignored.
Since the assumption of President Sarney after the fatal infirmity of
President-elect Tancredo Neves, many PMDB members had found it very
difficult to assimilate the frustration generated by the unexpected event. Policy
disagreements and cabinet reshuffles only intensified the animosity of the
most radical PMDB members against the government which was led by such
a representative figure of the previous military regime. Initially, the problems
derived from the succession crisis were diluted by the transference of all
political expectations to the Constituent Assembly. The begining of the
constitutional deliberations was, therefore, expected to revive the confrontation
inevitably. It was even more likely to happen as the assembly would have
the power to define the term of office of the president of the transition.
The animosity against the president was further aggravated by the results
of the 1986 elections, which modified radically the correlation of forces in
favour of the PMDB. The sweeping electoral victory gave the PMDB control
over 54 per cent of the seats of the Constituent Assembly. Many PMDB
members believed not only that the party now had the right to demand more
positions in the cabinet, but that it also had the authority to dictate the
management of the government. During the first preparatory sessions of the
assembly, a compact group of the most genuine PMDB members sought to
provide the assembly with powers to decree measures with immediate direct
effects. When the attempt failed, the group resorted to the old diretas-ja
strategy, initiating the most problematic political question to be decided by
the Constituent Assembly: the length of President Sarney's term of office.
The parliamentary recourse began to be contemplated also as a second
alternative to shift power away from President Sarney.
The power struggle was multiplied by the devastating effects of the failure
of the Cruzado Plan. The problems of the economy were exacerbated rather
than resolved by the Cruzado Plan. The government accumulated an enormous
 Presidential versus Parliamentary Government 129

fiscal deficit and exhausted the foreign reserves, thus forcing the country to
decree a moratorium on its huge foreign debt. Inflation threatened to get out
of control, reaching almost 1000 per cent a year in 1987 and 1988. The country
suffered an unprecedented economic crisis. Two more adjustment programmes
would be launched by President Sarney without much success. As a matter
of fact, economic problems would serve as the ever-present backdrop during
the deliberations ofthe Constituent Assembly, fuelling the already delicate
political battle.

THE DRAFfiNG PROCESS

The Subcommittee for the Executive Branch

Following the stipulations ofthe assembly's internal statute, the 63-member

Committee on the Organization of the Three Powers and System of
Government was organized at the beginning of April 1987, observing the
requirements of party proportionality. The election of its executive board,
consisting of a president, two vice-presidents and a rapporteur, ratified the
previous agreement between the two major parties (PMDB and PFL). The
committee presidency was allocated to PFL Deputy Oscar Correa, while PMDB
leader Mario Co vas nominated Deputy Egido Ferreira Lima for the rapporteur
position. The parliamentary convictions of the latter were well known and
a sort of parliamentary recommendation was expected from him.
Once the committee was organized, it immediately proceeded to divide
itself into three subcommittees: the legislative branch, the executive branch
and the judicial branch. The integration of the subcommittees and the election
of their respective directory boards (a president and a rapporteur) followed
the same procedure of the committee. On 7 April, the subcommittee for the
executive branch, which would formulate the initial proposal on the
organizational form of the executive, was formally installed with a membership
of24. Deputy Alberico Filho (PMDB) became president of the subcommittee,
and the influential rapporteur position was allotted to Senator Jose Foga~a
(PMDB), another supporter of parliamentarianism. 8
The subcommittee elaborated its own 45-day time.table, allocating time
to receiving suggestions and public testimony, discussing, amending and voting
the proposal to be presented by the rapporteur. During the first sessions, it
became clear that the central cleavage of discussion would be the dispute
between a presidential versus a parliamentary form of government. Through
the projeto de resolurao 1187 proposal, PDS Deputy Cesar Cals Neto urged
the assembly to make a decision regarding the general principle of the
130 The Making of the Constitution

government's organization from which the working draft should begin. He

claimed that the need of a priori definition was necessary in order to avoid
ending up with an incoherent and contradictory constitutional blueprint, as,
working independently, the subcommittees ran the risk of heading into two
opposite directions. As none of the two rival camps were in a condition to
foresee their relative strength, the initiative received strong rejection under
the argument that any a priori definition would restrict the debate or would
make it partially useless. Egido Ferreira Lima's argument that the likely
incoherences of all partial blueprints could easily be corrected during the
successive phases of the process prevailed.9
The subcommittee carried out six public hearings in which the presidential
vs. parliamentary cleavage proved to be at the core of the dispute. Two examples
illustrate the main arguments for each view. From the presidential camp, PFL
Senator Marco Maciel argued that it had been the gap between the demands
of society and the solutions provided by the state that was the main reason
for the continuous institutional breakdowns of the twentieth century, rather
than the presidential arrangement itself. He suggested that the stability of
the political system depended much more on the alteration of the correlation
of forces at the political level through the alteration of the socioeconomic
structure rather than on measures of constitutional tinkering. To resist the
structural pressures and to reform the socioeconomic structure, the
concentration of power of the presidential system was far more suitable than
the parliamentary system. He made the case against the existence of a true
parliamentary experience of Brazil during the nineteenth century. Finally,
he recommended strengthening the overseeing powers of Congress in order
to restore equilibrium and reinforce the system of checks and balances. 10
From the opposite camp, Joao Amazonas (PCB) recommended the adoption
of a pure parliamentary system as he claimed that presidentialism had proved
inadequate for Brazil. He argued that presidential government was responsible
for the continuous institutional breakdowns and that the concentration of power
in the hands of one person represented the archetype of non-democratic
government. 11
As expected, rapporteur Jose Foga~a presented a report to the 24-member
subcommittee for amendments and deliberation on 12 May, recommending
the adoption of a hybrid parliamentary system with strong presidential
powers and a four-year mandate for President Sarney. He grounded his
proposal on two main arguments. First, he argued that the strong desire for
institutional innovation and the division between presidential and parliamentary
advocates had led him to find a middle-of-the-road solution which could be
acceptable to both parties. He recalled a survey published by the Jornal do
Brasil on 9 May, in which 55 per cent of the assembly had expressed a
 Table 5.1 System of Government in the Main Phases of the Constitution-making Process

Phase
Feature Subcommittee Committee Cabral/ Cabral II Project-A Project-B 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

Regime Type Semi-presidential" Semi-presidential Semi-presidential Semi-presidential Semi-presidential Presidential Presidential

Mode of Direct suffrage Direct suffrage Direct suffrage Direct suffrage. Direct suffrage Direct suffrage Direct suffrage
selecting in two rounds if in two rounds if in two rounds if If no candidate in two rounds if in two rounds if in two rounds if
President no candidate no candidate no candidate obtains absolute no candidate no candidate no candidate
obtains absolute obtains absolute obtains absolute majority obtains absolute obtains absolute obtains absolute
majority majority majority Congress majority majority majority in the
chooses among first
the two first.
w
- Term of office Five years Five years Five years Six years Five years Five years Five years
(except Sarney)

Main functions Command Public Command Public Command Command Command Command Public Command Public
of President Administration, Administration, Foreign Affairs Foreign Affairs Foreign Affairs Administration, Administration,
Foreign Affairs & Foreign Affairs & Armed Forces & Armed Forces & Armed Forces Foreign Affairs Foreign Affairs
Armed Forces & Armed Forces & Armed Forces & Armed Forces
 Table 5.1 continued

Phase
Feature Subcommittee Committee Cabral I Cabral II Project-A Project-B 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

Exclusive a) Indicate & a) Indicate & a) Appoint some a) Appoint some a) Appoint some a) Nominate a) Nominate
prerogatives of dismiss Prime dismiss Prime senior officials senior officials senior officials cabinet members cabinet members
President Minister Minister and judges and judges and judges b) Appoint some b) Appoint some
b) Appoint some b) Appoint some b)Dissolve b) Dissolve b) Dissolve senior officials senior officials
senior officials senior officials Parliament Parliament Parliament and judges and judges
and judges and judges c) Initiative on c) Initiative on c) Initiative on c) Initiative on c) Initiative on
c) Dissolve c) Dissolve military legisla- military legisla- military legisla- tax, budgetary, tax, budgetary,
Parliament Parliament tion tion tion administrative & administrative &
d) Initiative on d)lnitiative on d) sanction & d) sanction & d) sanction & military legisla- military legisla-
tax, budgetary, tax, budgetary, veto laws veto laws veto laws tion tion
w administrative & administrative & d) sanction & d) sanction &
N
- military legisla- military legisla- veto laws veto laws
tion tion
e) sanction & e) sanction &
veto lawsb veto laws

Mode of President has the President has the Elected by Elected by Elected by
selecting Prime opportunity to opportunity to absolute majority absolute mf\jority absolute majority
Minister indicate PM two indicate PM two in lower House in lower House in the lower
consecutive consecutive House
times. If rejected, times. If rejected,
lower House lower House
formulates three- formulates two-
name list for name list for
President to President to
choose choose
 Table 5.1 continued
Phase
Feature Subcommittee Committee Cabral I Cabral// Project-A Project-8 1988 Constitution
(1) (2) (3) (4) (5) (6) (7)

Exclusive pre- Initiative on tax, Initiative on tax, Initiative on tax,

rogatives of PM budgetary & budgetary & budgetary &
administrative administrative administrative
legislation legislation legislation
Initiative on the President President Prime Minister Prime Minister Prime Minister President President
purse

Emergency President President President President President President President

powers initiative

w Conditions to If House fails to If House fails to If House fails to If House fails to lfHouse fails to
w
- dissolve formulate the formulate the elect PM in 48 electPMin48 elect PM in 48
Parliament three-name list in two-name list in hours after hours after hours after
ten days ten days approval of approval of approval of
motion of censure motion of censure motion of censure
Restrictions on Takes effect until Takes effect until Takes effect until Takes effect until Takes effect until
vote of censure selection new selection new selection new selection new selection new
PM. Motions at PM. Motions at PM. Motions at PM. Motions at PM. Motions at
intervals of 6 intervals of 6 intervals of 6 intervals of 6 intervals of 6
months months months months months
Chamber of Proportional Proportional Mixed system To be defined in Proportional Proportional Proportional
Deputies representation representation similar to complementary representation representation representation
electoral regime German system law
Notes: • As it is broadly defined in Duverger (1980: 167). b The proposal also stipulated that five state ministers would not be subject to the vote of censure: Foreign Affairs,
Navy, Anny, Air Forces and the Chief of Civil Staff.
Source: Banco de Dados do SICON, Apem, Prodasen, Brasilia.
134 The Making of the Constitution

preference for the parliamentary option against 37 for presidentialism.

Second, he claimed that the high popular expectations created by the diretas-
ja campaign of 1984 had made the direct election of the head of state
irreversible. 12
A few days later, Fogac;a presented a new proposal after incorporating
some 200 small alterations which resulted from the 305 amendments suggested
by the committee members. In a long session on 22 May, Fogac;a's report
was passed by the subcommittee with only two votes against it. The
subcommittee proposal was completed on 25 May after 18 sessions in 45
days. The proposal incorporated the typical parliamentary division of the
executive power between the president and the prime minister. The latter,
however, did not have any greater role than that of a chief of staff. The president
retained considerable powers regarding the nomination of the prime minister
and legislative initiative. At the same time, the three military ministerial
positions and the Foreign Affairs minister were not to be subject to the
motion of censure (see the first column of Table 5.1). According to Fogac;a,
the strong inclination of the arrangement towards presidentialism was chosen
because it was considered that a president elected by direct suffrage could
not be a mere decorative figure. 13 Contrary to Fogac;a's recommendation,
the subcommittee approved also a five-year mandate for Sarney, largely
influenced by the televised speech of the president on 18 May defining his
mandate for five years.

The Committee on Organization of the Three Powers and System of

Government

The subcommittee report reached the 63-member Committee on the

Organization of the Three Powers and System of Government on 25 May
to be subjected to a new process of amendments and revision for two weeks.
Committee rapporteur Egido Ferreira Lima combined the three subcommittee
reports into a new single committee proposal and presented it for a new rouno
of amendments and discussion. As to the system of government, he confirmed
the basic features of the subcommittee report, though reinforcing the trend
towards parliamentary government. Unlike the subcommittee report, he
made all ministerial positions subject to the vote of no confidence, including
the military positions.
The proposal received another 1100 amendments. On 13 June, Ferreira
Lima presented a new proposal, after incorporating some small alterations
from the amendments, for committee approval. Two days later, a new version
of the proposal was ready to be sent to the Integration Committee for similar
treatment (see the second column in Table 5.1). At this stage, the adoption
 Presidential versus Parliamentary Government 135

of the hybrid parliamentary proposal was taken for granted. The main point
of controversy here centred around the date in which the system would start
to operate. The committee agreed to concede a five-year mandate for the
presidents, including Sarney, with the implementation of the new system
starting in March 1988. When government representative Deputy Carlos
Sant' Anna declared to the press that Ulysses Guimaraes was his candidate
for the premiership, President Sarney seemed to have agreed to comprornise. 14
Regarding the legislative branch, the committee also agreed to extend its
prerogatives and powers significantly. Congress was granted powers to
revise and modify the president's budget and tax proposals, strong overseeing
powers and extensive veto powers. Under the new system, the Senate was
not abolished but acquired extensive powers over the nomination of the
Governor of the Central Bank, the debt renegotiations with foreign agencies
and all international treaties and agreements. Decree-laws and the decurso
de prazo mechanism were abolished and replaced by another type of
emergency legislation. Presidential decrees were substituted with the
instrument of medidas provisorias, or provisional measures, by which
presidential emergency measures lose their effectiveness if Congress does
not act within 30 days.

The Integration Committee

By the time the constitutional blueprint reached the Integration Committee

in mid-June 1987, the proposed institutional arrangement suffered several
attacks from both rival camps. Parliamentary advocates complained that it
placed too much power in the hands of the president, whereas presidential-
ists argued that too much power had been taken away from the presidency.
But by far the most controversial point at that time was the question of the
presidential mandate. A group ofPMDB members led by Senator Mario Covas
and all other leftist parties were not ready to extend the presidential mandate
under any circumstances. Opinion polls were indicating a favourable
presidential intention vote for the candidates of the left, particularly Leonel
Brizola. The PMDB members in favour of a four-year mandate pressed for
a party convention in order to define the issue. After negotiations, the
convention was scheduled for 18 and 19 July 1987. The question on the system
of government was dropped from the agenda. Under public threats by
President Sarney, the party convention decided not to choose anything and
left the decision to be taken by each member on an individual basis. 15
Presidential and parliamentary partisans as well as four and five-year mandate
advocates waited to bring pressure heavily upon the Integration Committee.
136 The Making of the Constitution

Under the assembly's original statute, the 93-member Integration Committee

occupied a strategic position in the constitution-writing process. The committee
was to combine the partial reports of the eight committees together, balance
and equate them to eliminate inconsistencies, in order to produce, in a two-
stage process, the constitutional project to be submitted directly for floor
ratification. The ratification proceedings stipulated that the committee's
project should be voted by the absolute majority before any floor amendment
could be considered. Otherwise, the committee proposal would be considered
automatically approved. Under this ratification method, the Integration
Committee was obviously a strategic stage.
The committee, whose president and rapporteur, Afonso Arinos and
Bernardo Cabral respectively, were both firm partisans of parliamentary
government, worked hard from June until November 18, when the
constitutional project.was finally completed. Pressures and counter-pressures
forced an alteration of the committee timetable and proceedings several
times. Thousands of amendments were tabled while the rapporteur Bernardo
Cabral sought to work out a conciliatory working draft acceptable to all parties.
Instead of the expected two-stage process of committee working operation,
he was forced to elaborate one working draft in July and another in September.
In his July blueprint, the rapporteur confirmed his resolution to ratify the
parliamentary choice taken in the previous stages (see the third column of
Table 5.1: Cabral 1). He made provisions for a directly elected president in
two rounds, but placed much more power in the hands ofthe prime minister.
He also proposed for the first time the introduction of a mixed electoral system
to strengthen the parliamentary arrangement. Finally, he proposed a five-
year mandate for all presidents, inclusive of Sarney, and the introduction of
the new parliamentary system starting in 1988.
The July constitutional draft (Cabral I) was received with disapproval in
one provision or another. Cabral proceeded to write another proposal which
could be more palatable to all sides. Regarding the system of government,
the rapporteur sought to exchange a longer term of office for President
Sarney in return for his support for the parliamentary option. At the same
time, he tried to move his proposal further towards parliamentarism in order
to compensate the parliamentary partisans who were likely to oppose a
presidential mandate longer than four years. Thus, in his September working
draft (see the fourth column of Table 5.1: Cabral II), the institutional
arrangement was moved further towards parliamentarism. He kept the
extensive powers of the prime minister and proposed the second round of
presidential selection to be carried out by Congress instead of the people.
At the same time, he chose to send the controversial question of the electoral
system to be defined in complementary law. He stipulated a six-year
 Presidential versus Parliamentary Government 137

presidential mandate, inclusive of Sarney's, with the introduction of the

parliamentary system from 1989. By this, he aspired to neutralize Samey's
hostility to parliamentary government while providing some room for
bargaining with four-year parliamentary option advocates to arrive at a five-
year mandate. The arrangement was not at all palatable to all parliamentary
advocates. PMDB leader Mario Covas, who was leading the coalition for
the four years, argued that the question of the mandate was not at all subject
to negotiation.
After an extremely slow voting procedure of article by article from both
the blueprints and the amendments, the Integration Committee managed to
deliver its final constitutional project on 18 November. The approval of the
parliamentary proposal by the committee plenary was tough and rough.
President Samey and his allies tried by all means to prevent the parliamentary
victory, but the committee plenary, encouraged by a emotional speech by
Afonso Arinos, chose to maintain the parliamentary proposal by 57 votes to
37 in the voting session of 30 October 1987. Two days earlier President Samey
had made public criticisms, declaring that the parliamentary system was a
dangerous adventure for Brazil because of its lack of organized political parties,
civil service careers and a majority electoral system. 16
On the whole, the parliamentary proposal produced by the Integration
Committee moved slightly towards a weaker form of parliamentarism (see
the fifth column of Table 5.1: Project-A). The election for president was left
entirely in the hands of the electorate. The system of proportional representation
was brought back in. But the most critical decision concerned the presidential
mandate. The committee previously had fixed future presidential mandates
at five years. But, on 15 November, the committee plenary passed the Jorge
Hage amendment which shortened Sarney's mandate to four years, while
retaining future presidential mandates at five years. Despite all efforts,
Samey's propositions were disastrously defeated. He had now to secure the
vote of at least 280 assembly members in order to be able to scrap the
unacceptable propositions in the floor vote ratification.

The debate
The discussion throughout the different stages of the process focused primarily
on the general merits and disadvantages of each one of the big institutional
alternatives, and only secondarily on the specific aspects of each of those
institutional arrangements. Because of the fact that the presidential alternative
represented the status quo option, the debate followed a logic by which
parliamentary advocates provided the positive arguments while presidential
advocates were forced to take a defensive position. No presidential adherents
138 The Making of the Constitution

seemed, however, to advocate openly the existing presidential order as it was,

but their arguments were mainly of a defensive character.
The most recurrent basic notions encompassed in the debate can be
grouped under two main headings: the democratic and the stability arguments.
As to the democratic argument, many parliamentary advocates claimed,
groundlessly, that the parliamentary form of government was essentially more
democratic than presidential government. This conclusion was grounded
basically in two main premisses: (i) that the concentration of powers in the
hands of the president, as opposed to a collegiate group of congressmen, is
undemocratic; (ii) that parliamentary government is more susceptible to
popular pressures than a government of one person who can be influenced
much more easily by powerful interest groups. On the other hand, the
presidential counter-argument asserted that because of the direct election of
the head of government under the presidential system, it was actually more
democratic.
The stability argument was, perhaps, the strongest and most popular idea
among parliamentary advocates. It was presented in different forms, but the
basic belief was that the presidential system of government had been
responsible for the recurrent institutional crisis throughout the institutional
history of Brazil. The monarchical variant associated the instability with the
establishment of the republican government in 1889 and portrayed the
nineteenth century parliamentary monarchy period as an example of stability.
The most progressive variant emphasized the inherent contradiction of
presidential government between the Congress and the presidency. The
reply of the presidential camp was that the presidential government, or any
other institutional arrangement, was not the cause but the reflection of a deeper
instability at the socioeconomic level. Moreover, they argued that presidential
government was more suitable to eliminate those social and economic
inequalities and could bring some stability to the system. Another powerful
argument of the presidential advocates was that the institutional prerequisites,
such as a consolidated party system, an institutionalized public service, a
single majority electoral system, and so on, would make the parliamentary
system unworkable.
Regarding the specific arrangements of the parliamentary system, the
most critical questions of discussion were the following: the dissolution of
the Chamber of Deputies (which for obvious reasons met initial resistance
among many deputies), the distribution of power between the president and
the prime minister, the form of elections of the president (though there was
more or less a consensual agreement on the inevitability of the direct popular
form of election), and the conditions and types of the motions of censure.
As to the presidential arrangement, the most critical questions were centred
 Presidential versus Parliamentary Government 139

on the prerogative of congress, vis-a-vis, the executive, as well as the type

and control of the emergency powers of the president. 17

Organization and Victory of the Anti-Parliamentary Coalition

The approval of the parliamentary system and the decrease in tenure infuriated
President Sarney. On the other hand, the constitutional project produced by
the committee did not please the business sectors at all either. The conditions
to organize a common front to defend each other's interests were now better
than at any other time. It would just require a skilful and patient negotiation
with all political actors with power to influence the vote of the assembly
members, who were now to ratify the Integration Committee project in a
floor session. Making full use of the government apparatus and placing
everything else into second place, President Sarney embarked on a 'stick
and carrot' strategy directed towards possible allies in all sectors of society
as well as assembly members themselves, in order to persuade them to
aggregate forces in an inter-party coalition to back his constitutional
propositions.

Forming the coalition

During the Integration Committee deliberations, the top business organizations
tried hard to co-ordinate a coalition of supportive assembly members in order
to combat the radical propositions of social and economic nature which
were being processed in the committee. Co-ordinated by Deputies Jose Lins
and Carlos Sant •Anna, the Centro Democratico, or Democratic Centre, with
over a hundred members made little progress to influence the liberal/progressive
integration committee. On 4 November, the leaders of the Uniao Brasileira
de Empresarios (UBE) called a meeting in Brasilia to discuss the convenience
of elaborating an alternative constitutional project. The meeting was attended
by leaders of the business organizations, over a hundred assembly members
and representatives of President Sarney. Though the social and economic
questions were difficult to manage, the political aspects profoundly divided
businessmen and assembly members equally. Some of them supported presi-
dentialism while others preferred parliamentary government. Though there
was a growing trend in favour of a five-year mandate for President Sarney,
there were also discordant voices in favour of a four-year mandate. Besides,
hostility towards President Sarney was growing as the inflation rate threatened
to escalate and the economic activity threatened to slow down. The divergences
seemed too deep to face the matter without putting at risk the more consensual
economic and social preoccupations. President Sarney realized that, if he
140 The Making of the Constitution

was to succeed, he had to work skilfully organization by organization, leader

by leader, looking for possible spaces of negotiation. 18
When the floor ratification began in late January 1988, some sectors of
the business community got nervous as they realized that the Centrao
coalition organized to defend business interests was proving unstable and
was being defeated in some important questions. The president of the CNI,
Senator Albano Franco, threatened to support the parliamentary proposal with
a five-year mandate for President Sarney in order to induce further support
from Planalto in return for a presidential shift. The definition for a five-year
mandate was not entirely consensual among businessmen yet, but the growing
popularity ofBrizola had convinced the majority of them of the need to avoid
elections in 1988. 19 Negotiations were intensified and, as the voting session
on the system of government was approaching, many business organizations
began to put pressure upon their allies in the constitutional assembly in
favour of the Planalto thesis. Business's Forum Informal published a document
against the adoption of the parliamentary option and the elections in 1988.
The parliamentary option was finally liquidated when, three days before the
voting session, Sarney's special representatives in Sao Paulo convinced
FIESP businessmen as well as businessmen in Rio to back the presidential
alternative. Pressures via telegram were immediately forwarded to their
affiliated members in the Constituent Assembly. 20
State governors were also integrated into the Planalto strategy. Many of
them had already started to exercise much of their traditional power to
influence the vote of the state representatives to the Constituent Assembly
for their own political ends. In the case of the presidential mandate, there
was in fact a convergence of interests between some governors and Planalto.
Some of them had presidential ambitions, and a five-year mandate for
President Sarney would provide them with more time to cement their
presidential campaign. Thus, when President Sarney made public his decision
to remain in office for five years in his polemical televised speech of 18 May
1987, most of the state governors, led by the Sao Paulo governor, Orestes
Quercia, went to provide support to the president. A similar move was
organized later on, when the group of PMDB congressmen favouring
parliamentary government and a four-year tenure for Sarney called a party
convention in July 1987 in order to force the PMDB to take a mandatory
definition on those matters. Assisted by the 'neutrality' of the PMDB
president, president of the Constituent Assembly and presidential aspirant,
Ulysses Guimaraes, the PMDB governors pressed the state delegates to the
convention to avoid any party resolution.
When the Integration Committee rapporteur, Deputy Bernardo Cabral,
delivered his September blueprint (Cabral II project), the Minas Gerais
 Presidential versus Parliamentary Government 141

governor, Newton Cardoso, organized a meeting with eight other governors

to repudiate the parliamentary arrangement of the proposal. 21 The position
of the governors in favour of the presidential option was, nevertheless, much
more doubtful than the question of the mandate. To reinforce the acquiescence
of the governors, who were actually in severe need of budget support and
public debt rollover from the federal government, President Sarney launched
an extensive programme of state spoils for friendly state governments. Co-
ordinated by the Urban Development Minister, Prisco Viana, the government
orchestrated a generous distribution of federal resources and other political
goods, which demanded a massive involvement of the Communications
Minister, Antonio Carlos Magalhaes, the Civil Staff Minister, Ronaldo Couto
Costa, the Industry and Commerce Minister, Hugo Castello, the Transport
minister, Jose Reynaldo, as well as other state agencies such as the Caixa
Economica Federal and the central bank. A notorious case was the Minas
Gerais governor, Newton Cardoso, who managed numerous federal
disbursements, from the equally notorious minister, Prisco Viana. 22 With
the exception of four PMDB governors, including Moreira Franco (RJ), Pedro
Simon (RS), Waldir Pires (BA) and Miguel Arraes (PE), all other governors
delivered votes in favour of Sarney's propositions.
Assembly members who showed a willingness to accept the presidential
proposals received equal treatment by the government apparatus through its
representative in the assembly, Deputy Jose Lauren~o. Deputy Carlos
Sant' Anna had apparently refused to participate in such a scheme. In order
to buttress their political positions, many of them bargained pork barrel
disbursement. In the few days prior to the voting session of 22 March, F olha
deS. Paulo monitored the enormous increase in government spending. 23 On
22 March, the day of the vote on the system of government, the Diario Oficial
da Uniiio published a list of 51 new agreements between the Ministry of the
Interior with municipalities of several states. 24 TV and radio concessions
were also used to punish opponents and reward allies. Newspapers published
a list of new concessions and estimated that the cost of the victory was close
to US $100 million overall. 25
Public administration appointments were also subject to public bidding.
Ministers and bureaucrats who refused to comply with Planalto's designs
were either isolated or replaced with more docile personnel. For instance,
PMDB Minister of Urban Development, Deni Schwartz, who openly supported
a four-year mandate and the parliamentary option, was carefully dismissed
in late October 1987. Prisco Viana was then appointed to the strategic
ministry. At the same time, Justice Minister Paulo Brossard was in charge
of seeking support among the sceptical ministers. Arguing that any decrease
142 The Making of the Constitution

in office tenure would lead the president to resign, the minister convinced
21 ofthe 27 ministers to oppose the elections in 1988.
The military had also been carefully cultivated by President Sarney since
the operations of the Integration Committee. But the three main military
ministers did not share a common view. According to Senator Foga~a. the
Air Force minister had a preference for the parliamentary option while the
Navy minister showed no strong view in one way or another. It was the Army
minister who held a position in favour of presidential government, mainly
due to his reluctance to accept a civilian Minister of Defence that the
parliamentary option would inevitably involve. 26 Convergence with President
Sarney came fundamentally on the questions of the mandate. Since early
1988, when opinion polls were showing a growing popularity ofBrizola in
the presidential race, the military ministers made public that elections in 1988
would not be tolerated. President Sarney dramatized the military argument
and used it skilfully to coerce the constituent body. The president of the
assembly, Ulysses Guimaraes, who was also in close contact with the higher
military but was probably benefiting from the alleged threat as well, made
some efforts to dismiss the ungrounded threats without much success. On
the voting day, the press released news on the military position. Though
professing an option for presidential government, both Army Minister
Leonidas Pires and Air Force Minister Octavio Moreira declared that
parliamentary government was an acceptable option whenever the military
ministers were kept subordinated directly to the president. They strongly
opposed, however, presidential elections in 1988. 27
Public opinion did not favour President Sarney regarding his mandate.
Newspapers publicized periodically polls showing a large popular preference
for elections in 1988. On the other hand, public opinion was very favourable
to the president's preference for presidential government. Since early in the
process, all major national newspapers had made their choice for the
presidential system of govemment. 28 Periodical polls, some requested by
Sarney himself, indicated also an overwhelming popular preference for the
presidential option. 29 The Constituent Assembly seemed much out of tune
with public opinion. This powerful argument was carefully used by President
Sarney to encourage many assembly members to make a shift to the presidential
option.

Floor Voting Session

Under the new procedural rules, imposed by the Centriio in late 1987, articles
of the constitutional project passed by the Integration Committee would neither
take precedence in floor voting, nor would they be automatically approved
 Presidential versus Parliamentary Government 143

if rejection could not reach an absolute majority (280). Preference in voting

would now be given to amendments (now permitted also for whole titles,
chapters or sections) with an absolute majority of signatures.
Since the deadline for amendment submission was reached in mid-January
1988, the order of amendment voting had been established. The presidential
amendment of Senator Humberto Lucena and Vivaldo Barbosa with 352
signatures would come in the first place. If it received the support of at least
280 votes, the assembly would move to vote amendments on single articles
of the proposal approved. Only if the presidential amendment failed to get
the support of280 assembly members would the parliamentarian amendment,
sponsored by Egido Ferreira Lima with 341 signatures, be put into floor
consideration. 30 If the second alternative failed to gain the support of the
absolute majority, the version of the Integration Committee would then
be offered.
During the few days before the voting session, several attempts were
made to reach an agreement to make the parliamentary option viable. Some
of the most authentic parliamentarian supporters, among them Senator Jose
Foga~a. proposed to make a 'gentlemen's agreement' by which the assembly
would agree to invert the order of voting in order to vote first the question
of Sarney's mandate (which, according to the statute, was to be defined at
the end in the transitory articles), leaving the issue of the system of government
to be decided thereafter. The PMDB leader, Mario Covas, did not agree with
the suggestion. He believed that if President Sarney had enough force to obtain
his five-year mandate, he would be able to pass the presidential option
as well. 31
On the eve of the voting session both blocs were claiming victory, but the
outcome was still uncertain. Information and counter-information made
assembly members fluctuate from one side to the other. The night before
the voting session, the leadership of the presidential bloc reviewed the
assembly roll and concluded that the presidential amendment would be
passed by a margin of 40 to 50 votes. 32 On 22 March, the presidential
amendment was passed by a margin of 132 votes, including the votes of
Sarney's adversaries in the PT and PDT. 33 Two days later, as predicted by
Senator Mario Covas, presidential mandate for future presidents was fixed
at five years by a narrower margin of 81 votes, which excluded the PT, PDT
and some other few votes. A four-year mandate would have made it impossible
to justify a five-year tenure for President Sarney in the definition of the transitory
measure. The approval of a five-year mandate for future presidents secured
the same treatment for President Sarney later on. Thereafter, the assembly
moved to eliminate the parliamentarian clauses of the presidential amendment,
such as the congressional power to censure ministers (see the sixth column
144 The Making of the Constitution

of Table 5.1 ). In the second round of floor voting, articles could be eliminated
but none added. The presidential arrangement was confirmed (see the seventh
column of Table 5.1).
As shown in Table 5.2 below, the parliamentary/presidential split among
the political parties was more serious among the PMDB, PDS and the
smallest parties. The PMDB vote was split nearly into two halves, with almost
50 per cent for each one of the rival options. The PFL, though divided as
well, had a majoritarian tendency of presidential votes. The PDS vote was
equally divided almost into two halves. Because of the strategic positions
of their leaders in the presidential race, the PDT and the PT showed a
cohesive vote in favour of the presidential option. For opposite reasons, PCB
and PCdoB maintained a united vote in favour of the parliamentary proposal.
Finally, the smallest five parties divided their votes equally into the two options.

Table 5.2 Vote for Presidentialism (Lucena Amendment) by Party (Vote No. 315)

PMDB PFL PDS PDT PTI PCB/ Others• Total

PSB PCdoB

Yes 153 113 22 24 14 0 18 344 (61.5%)

No 147 21 16 2 0 II 15 212 (38.0%)
Abs 3 3 (0.5%)
Total 303 134 38 26 14 II 33 559 (100%)

Note: • includes PTB/PDC/PUPSCIPMB.

Source: Sistema de Acompanhamento de Vota~lio, Prodasen.

The Calling of a Plebiscite

When presidential government supporters realized they were losing the

battle during the Integration Committee deliberations, a proposal to submit
the matter for a public referendum 90 days after the promulgation of the new
constitution was put forward. Opinion polls were, then, showing an
overwhelming popular support for presidential government. Once the
parliamentary option was defeated in the plenary ofthe assembly, the idea
was embraced by their adversaries.
However, the losers had not contemplated any course of action in the case
of an eventual defeat and the time for the introduction of new amendments
had expired long ago. Yet there was an amendment by Deputy Cunha Bueno
waiting for floor consideration, which mandated a plebiscite in five years'
time to decide between monarchical and republican government. Cunha
Bueno's proposal for a plebiscite was based on the grounds that the provisional
 Presidential versus Parliamentary Government 145

government's first decree during the proclamation of the Republic in 1889,

which had promised a plebiscite to decide whether the country should be a
republic or a monarchy, had not yet been fulfilled, and that the republican
government in Brazil had been a complete failure in institutional and
social terms. 34
Parliamentary advocates supported the amendment and went on to negotiate
a sub-amendment in order to incorporate the presidential or parliamentary
alternative as well. The amendment was passed on 2 June 1988 by an
overwhelming majority of 495 votes, with 23 votes against the amendment
and 11 abstentions. The outcome reflected the high proportion of presidential
votes that had supported the amendment. Thus, the second article of the
transitory dispositions mandated that 'on 7 September 1993 the electorate
should define through a plebiscite, the form of government (republic or
monarchy) and the system of government (parliamentary or presidential) which
should prevail in the country'. 35

CONCLUSION

Sponsored by subcommittee and committee rapporteurs, the mixed

parliamentary proposal with extensive presidential powers formulated at the
first stage in mid-June 1987 was gradually amended towards a purer model
of parliamentary government throughout the successive phases of the
constitution-writing process. When the proposal was dispatched for floor
ratification, the dispute reached its climax and the apparent parliamentary
trend was reversed. On 22 March 1988, the parliamentary option was
automatically frustrated when a presidential amendment, which came first
in the voting procedure, received the support of more than 60 per cent of the
constituent body. It was the most tense moment of the constitutional discussion
and the first and only floor voting session attended by all the 559 members
of the constituent body.
As shown, doctrinaire convictions stimulated the dispute to a certain
extent. As a matter of fact, the initial impulse came from a group of
disinterested political scientists and constitutional theorists with a long-term
perspective. But the positions of assembly members fqr one side or the other
were taken fundamentally on short-term political considerations. Specifically,
definitions for one of the two rival camps were induced significantly by the
intricate political confrontation around the question of the presidential
mandate. Institutional design preferences had a weight of their own, but as
most parliamentarism supporters, led by PMDB leader Mario Covas, stood
for a four-year mandate for President Sarney, many five-year mandate
146 The Making of the Constitution

advocates were forced to move towards presidentialism in order to prevent

a victory of four-year advocates, via a decision to shift power from the
presidency to Congress, during the last part of floor voting sessions. Therefore,
the questions of the institutional design and the length of President Sarney's
mandate became closely interrelated.
Obviously, the controversy did not end there, for it was to survive the
constitutional discussion. The losers were not ready to abide by the outcome
and wanted further consideration of the issue. Having the time expired for
the submission of amendments, they discovered an amendment waiting for
floor consideration which mandated a plebiscite in five years' time to decide
between monarchical and republican government. Immediate negotiations
were carried out to rewrite the proposal in order to incorporate the presidential
and parliamentary alternative as well. The amendment was passed on 14 June
1988 by a large margin, showing the enormous interest that the issue had
aroused among assembly members.
6 The Debate Over the Land Reform Issue
in the Constituent Process

The issue of land reform was expected to be highly controversial in the

constituent process due to the political animosity that the First National
Land Reform Plan had originated. Disillusioned with the plan, the reformist
forces within and outside Congress intended to incorporate into the new
constitution a set of specific provisions which were 'self-enforceable'. During
the process, the dispute centred around one fundamental question: rural
property rights. The drafting procedure was marked by a strong polarization
between two opposing views on private property.

HISTORICAL BACKGROUND

The intense mobilization during the constitutional deliberations around the

agrarian question had its roots in the political dispute initiated with the
announcement of the First National Land Reform Programme in 1985. This
background section will examine some of the basic elements of the pre-
constitutional situation. The two basic questions to be discussed are: why
was the land reform proposed? and, what political consequences did the land
reform programme bring about?

The Land Reform Proposal in 1985

The theme of land reform was first (re )introduced 1 into the national agenda
by Tancredo Neves. The commitment to execute a programme ofland reform
through the application of the estatuto da terra was an important element
of his campaign as presidential candidate. A few weeks after President
Sarney assumed office, a land reform proposal was drafted and offered for
national discussion. The dispute over this initiative helped to raise the level
of confrontation and the intense mobilization and counter-mobilization of
political forces that occurred during the constituent process around the issue.
The first question to be addressed is why was the land reform proposed
in 1985? The issue was indeed of crucial importance during the period of
the military coup some twenty years ago. But in 1985, the relative importance
of the rural sector in Brazil had been diminished dramatically. The economically
active population in the primary sector had decreased from 54 per cent in
1960 to 29.2 per cent in 1980. 2 The share in the GDP of the primary sector

147
148 The Making of the Constitution

had also diminished from 17.7 percent in 1960 to 9.8 per cent in 1985. 3 The
share of primary products in the total volume of exports had also decreased
substantially.
According to Sorj the answer to the question addressed above can be found
at three different levels:

a) some kind of agrarian reform has been in the plans of the leading
modernizing elites, including those that led the coup in 1964; b) the
Church managed to introduce the proposal of changes in land tenure in
the agenda, even with the purpose of neutralising the influence of the Church
itself; c) an agrarian reform seemed an easy and inexpensive achievement
that would allow a 'social' action without touching the urban-
industrial structure. 4

Thus, his suggestion is that the reasons to propose a land reform in 1985
were mainly social and political rather than economic. In fact, Sorj asserts
that, by the mid-1980s, many analysts had concluded that because of the intense
modernization of the Brazilian countryside, through a conservative solution,
the issue of the land reform, from the economic point of view, had virtually
disappeared. For some, the development of the agro-industrial complex and
the transformation of the peasants into rural workers had dislocated the
political struggle from the fight for land to the struggle for demands similar
to those of the urban workers. 5
For some others, like Sorj himself, the transformation of the countryside
over the previous two decades had only altered the meaning of the land reform
in Brazil. In the context of a very modern agricultural sector, the mere
redistribution of land was insufficient to make the individual rural producer
viable. Investment and technical assistance, which were more costly than
the land itself, were needed for the success of a land reform programme.
There was, however, little debate about the real social and economic
implications and consequences of a programme of land reform conceived
in those terms. 6
More specifically, the proposal for land reform was processed within a
particular political context which favoured its incorporation into the agenda
of the Democratic Alliance. On the one hand, Tancredo Neves needed to
aggregate all the interestsof his allies in order to sustain the anti-authoritarian
coalition. On the other hand, the agricultural workers and peasants movement
had been expanding its political presence and demands for land reform since
the late 1970s.7
 The Debate Over the Land Reform Issue 149

By 1983, the National Confederation of Agricultural Workers (CONTAG)

had increased its membership from 3 million in 1976 to 8 million. In 1979,
the organization defined its objectives: (i) the struggle for labour rights
through strike action; (b) the struggle for land reform throwgh occupation of
lands to press for it. 8 Some other new organizations with the powerful
backing of the church emerged also in the 1970s with the specific objective
of promoting a land reform process in Brazil. In 1975, the Pastoral Commission
for Land was formally created by the Catholic Church. The CNBB itself had
formally promoted demands for a land reform. In 1980, the Movement of
the Landless Rural Workers (MTRST) was also organized all over the
country after some 600 families in the state of Rio Grande do Sul decided
to occupy lands illegally. 9

The estatuto da te"a and the Military

After the military coup in 1964, the agricultural workers' organizations and
movement were disbanded and repressed. Paradoxically, the military created
an entire new legislation to facilitate a land reform programme. First, Castelo
Branco sponsored an amendment to the 1946 Constitution to make
compensation for expropriated land payable in government bonds instead
of cash as stipulated in the existing constitution. On 30 November 1964, he
introduced also an entire new law, the estatuto da terra, to define the type
of rural properties that could be subject to expropriation and establish the
administrative and judicial proceedings for such action. Through the AI-9,
Costa e Silva eliminated the legal requirement for 'prior' compensation in
1969. Later, through the decree-law no. 554, it was also determined that the
value of compensation would be calculated according to the value of the
property declared by the owner for tax purposes. With this new legal structure,
all the major legal and financial constraints for a land reform programme
were eliminated. According to one of the most radical proponents of land
reform, this legislation left the executive 'properly equipped to unleash a
transformation of the Brazilian agrarian structure, depending only on the
indispensable decision, will, and political action' . 10
These legal instruments were of little use to the military. Priority was given
to other types of policy options. For instance, the two major efforts directed
towards the rural sector focused on colonization and modernization. The Medici
government developed a policy of colonization to distribute land and
encourage settlements in the newly opened areas of the Amazon region. The
project did not show much success. The Geisel administration opted for a
150 The Making of the Constitution

type of agricultural policy to encourage investments in large-scale agro-

industrial projects. II

The First National Plan of Land Reform

The announcement of the First National Land Reform Programme inaugurated

a political dispute which extended to the Constituent Assembly. The initial
proposal, elaborated by a group of leaders linked to the church and the pro-
land reform movement, was submitted for debate in May 1985 by President
Sarney. The proposal aimed at distributing over 400 million hectares (half
the land of Brazil) among 7 million landless rural workers over a period of
15 years. 12 This ambitious plan met strong opposition from the rural business
sector. After five months of debate, the plan was officially introduced through
the decree no. 91766 signed by President Sarney, with radical alterations in
relation to its original objectives.
These alterations met the criticism of the CONTAG, the MTRST, the CNBB,
and the rest of the pro-reform organizations. The director of the National
Institute of Colonization and Agrarian Reform (INCRA), Jose Gomes da Silva,
resigned in protest. The implementation of the plan had the overall effect of
encouraging the pro-reform movement to occupy land and increasing the
apprehension of the rural business sector. Conflicts over land tenure were
aggravated in 1985, leading to an increase in the number of deaths of rural
workers. In this context, the Rural Democratic Union was formed by
landowners to prevent the multiplying of illegal occupation of land.
The implementation of the plan encountered a number of different obstacles
which radicalized both the rural business sector and the rural workers'
organizations. For the former, the plan had been ill-designed in its
administrative, legal, and financial aspects, while the latter questioned the
commitment and the will ofSarney to undertake any land reform programme. 13
The confrontation between the two was shown in the constant change of cabinet
ministers (four during the Sarney govemment). 14 With the approach of the
Constituent Assembly, both groups started an intensive preparation to advance
their goals.
As it has been shown in Chapter 3, the rural business sector founded in October
1986 the Frente Ampla daAgropecuaria, composed of the UDR, SRB, CNA,
OCB and others, to take effective lobbying. It also managed to elect a group
of some 80 assembly members who constituted the Frente Parlamentar da
Agricultura. The organizations linked to the agricultural workers were much
less successful in electing candidates to the Constituent Assembly, but they
also made preparations to exercise pressure upon the assembly.
 The Debate Over the Land Reform Issue 151

THE DRAFriNG PROCESS

As explained in Chapter 4, the making of the constitution was a decentralized

and open process. The working constitutional project started to be drafted
from scratch by 24 separate thematic subcommittees, which prepared a
section of it. The project was then gradually integrated into a single document
in three subsequent stages.

The First Confrontation: The Subcommittee for Agriculture, Land

Tenure and Land Reform

The Organization of the Subcommittee

Following the distribution of the membership among the eight thematic
committees and subcommittees, the subcommittee for Agriculture, Land Tenure
and Land Reform Policy was officially installed on 7 April 1987. The 25-
member subcommittee was composed of 13 PMDB members, five PFL, and
one each from the PTB, PCdoB, PCB, PT, PDT, PDC and PDS, resembling
the party proportionality of the assembly as a whole. 15 In almost all the
subcommittees, there was some tension regarding the distribution of leadership
positions, but the dispute was particularly vehement in this subcommittee.
The voting, which was supposed to be a formality to ratify the previous
agreement between the PMDB and PFL leadership to fill the posts, was held
twice as some members from both sides did not acknowledge the agreement
and challenged the agreed candidates. Edison Lobao, who had been nominated
by the PFL leadership to occupy the presidency, was contested by a candidate
from his own party, Allysson Paulinelli. Saldanha Derzi from the PMDB
was also challenged by his party peer, Rosa Prata, for the ftrst vice-presidency.
At the end, the result of the voting confirmed the leadership agreement. Edison
Lobao was elected for the presidency and then appointed the PMDB deputy,
Oswaldo. Lima Filho, 16 for rapporteur.I7
The subcommittee held 21 sessions until 25 May when it sent out its
final report to its parent committee. The first sessions were spent on
discussing the internal workings and the timetable of the subcommittee. In
the second stage, several public hearings were held to collect and debate
opinions from various leaders and government officials who were connected
to the rural question. Introducing an innovation, the rapporteur proposed
to visit regions where land reform projects were being undertaken, outside
Congress. The first visit was to Pernambuco, with only seven members and
the second to Araguaina in the state of Goias with only the rapporteur and
two other members. The last part of the subcommittee activities was
152 The Making of the Constitution

concentrated on discussing the proposal prepared by the rapporteur, amending

it, and voting it out.

Public Hearings
Following the internal regulation of the assembly, which determined that
public hearings should be conducted to receive suggestions from society,
16 different leaders brought proposals and discussed different aspects of the
agrarian question. From the business sector, it included Flavio Telles de
Menezes, president of the Brazilian Rural Society (SRB), Ariosto Riva,
president of the National Confederation of Agriculture (CNA), and Roberto
Rodrigues, president of the Organization of the Brazilian Cooperatives
(OCB), among others. Representing the agricultural workers, Plinio Guimaraes
Moraes, director of the Brazilian Association for Land Reform (ABRA), Jose
Francisco da Silva, president of the National Confederation of Agricultural
Workers (CONTAG), and Hamilton Pereira da Silva, member of the Pastoral
Commission for Land (CPT), among others, joined the hearings. The Minister
for Land Reform, Dante de Oliveira, and other government officials brought
their contributions as well.
From the rural business sector, the most refined presentation was elaborated
by Flavio Telles de Menezes. His contribution was organized around three
fundamental questions: the concept of property, the importance of land
tenure policies, and the limits to rural property. On the first question, his
basic argument was that the property right was a fundamental right of the
individual which constituted the basis of all principles of liberty. Economic
liberty was an indivisible part of the concept of liberty. Thus, property rights
should be fully guaranteed in the new constitution as an indispensable
requisite for the construction of democracy in the country. On the second
question, he argued that land represented only a single factor in the whole
process of production, together with others like technology, capital, labour,
creative entrepreneurship, etc. Thus, it should be considered that land tenure
questions constituted only one element of the broader problem of agricultural
production. The constitution should, then, provide the instruments to design
overall agricultural policies, not only land tenure ones.
On the third question, Telles de Menezes elaborated on two points. He
suggested that imposing constitutional limits on the size of land holdings
would be detrimental for the economic development of the sector as this should
be only determined by the market and technological progress. He insisted
also that productive properties should be given guarantees against expropriation
in order to allow them to continue performing their 'social function' (that
of producing for the urban sector) and avoid a disruption of the productive
process. To conclude, he offered four concrete proposals to the subcommittee.
 The Debate Over the Land Reform Issue 153

First, to make a new census of all rural properties as the existing official
statistics of INCRA were incorrect (he provided examples of this in the state
of Sao Paulo). Second, to introduce a system of progressive taxation in order
to eliminate speculation with rural properties. Third, to set up a credit system
for land acquisition. And finally, to design new colonization projects on public
lands as he claimed that the government was the biggest landholder in the
country with over 100 million hectares. 18
The suggestions and views from the agricultural workers' movement were
presented by a group of leaders from the ABRA, CONTAG and CPT. 19 A
formal proposal of 17 articles elaborated by the National Campaign for Land
Reform (CNRA) 20 was first introduced by a team of specialists from ABRA,
led by its executive director, Plinio Guimaraes Moraes. The conceptual basis
of the proposal rested on three primary ideas. First, private property is not
an absolute right which stands above the collective good. It entails a 'social
obligation' and should, therefore, be recognized only as far as it fulfils it.
Second, the intrinsic antisocial nature of latifundio justifies the adoption of
instruments of punitive character in expropriating rural property for land reform
purposes. Third, in order to avoid the need for regulation in ordinary legislation
which would inevitably tend to block the process of land reform, the new
constitution should include specific provisions as to make them 'self-
enforceable' .21
In more concrete terms, the basic features of the formal proposal can be
summarized as follows. The recognition of rural property rights was subject
to the observance of five different criteria which defined the concept of social
obligation. But the vague and subjective character in which these standards
were formulated amounted virtually to no guarantee on private property rights.
In the proposal, only properties with less than three m6dulos22 of area were
explicitly and fully protected from expropriation. At the same time, the
formulation of the expropriation principle implied restrictions on the right
of the defence of the dispossessed proprietor. Property could be taken away
in two ways. One was the perda sumaria that would allow the state to
confiscate properties which, for instance, exceeded the maximum limit of
60 m6dulos of extension set up in the document, without compensation. 23
The other was the expropriation for land reform purposes which would grant
compensation but limit the right of defence to that of discussing the value
of the compensation. The imissiio automatica (roughly, executive immediate
appropriation after issuing expropriation decree) guaranteed that the
expropriation act itself would have an irreversible character. 24 The
compensation provisions were also radical. According to the proposal, both
land and infrastructure would be paid in government bonds, payable within
a period of20 years after five years of maturity. The value of the compensation
154 The Making of the Constitution

should not exceed that which had been declared by the owner for tax purposes.
Other suggestions included a top limit to the extension of rural property to
60 mOdulos and the prohibition to take properties with less than three mOdulos
in guarantee for credits.
In defending the 'slight programmatic character' of the proposal, ABRA's
exponents argued that this was the only way to secure land distribution in
Brazil. In support of the quest for land reform, Guimaraes Moraes argued
that land reform was necessary mainly for social and political reasons. In
his view, land reform should be conceived 'as a series of measures aimed
at redistributing land and, in redistributing land, redistributing wealth and
income and, in redistributing wealth and income redistributing power'. The
economic aspect was less important as the conservative modernization of
the Brazilian agricultural sector had solved the problems of agricultural
production. But land reform was necessary to eliminate the violence and the
inequalities accentuated by the capital-intensive model of modernization. The
evident process of land-holding concentration was unjustified, even if
production and productivity was high, in view of the existence of seven million
landless workers and over 40 million Brazilians living in absolute poverty. 25
The president of CONTAG, Jose Francisco da Silva, elaborated around
two central issues. First, that land distribution was needed not merely to increase
production and productivity but fundamentally to solve the problems of
unemployment, violence and poverty. Second, that land reform did not
exclude the question of agricultural policy, pointing out that the latter should
emphasize the social rather than the productivist character. 26 The CPT
presented information on rural violence and denounced the existence of
labour slavery in many fazendas. The proposals presented by the four
government officials showed a high degree of coincidence with the line of
argument advocated by the leaders of the CNRA.

Presentation of First Report and Debate

On 11 May, Oswaldo Lima Filho presented the first proposal (anteprojeto)
for discussion and amendments. To justify the proposal, the rapporteur
appealed to several authorities, from the Pope to Tancredo Neves, in search
for arguments in favour of land reform. His central idea could be illustrated
by the following passage:

against land reform there has been the protest of 4550 big landholders ...
who have the control of over 142819737 hectares ... and against this limited
group, there is the revindication of seven million landless workers who
live in conditions of extreme poverty. It is evident that this grave
 The Debate Over the Land Reform Issue 155

economic inequality threatens the very existence of the democratic

regime. 27
The document of 14 articles was largely a copy of the proposal presented
by the CNRA, with little change of wording. Some minor alterations in content
included the following points. The government bonds to pay for expropriation
would include a clause to adjust them to inflation. Their liquidity was
expanded by eliminating the maturity period of five years and extending the
range of payments which could be made with them (rural property taxes,
acquisition of new public lands, payment of credits to public institutions).
The imissiio automatica provision was partially eliminated. The top limit to
property holdings was increased to 100 m6dulos. Other clauses were
incorporated dealing with the form and terms of acquisition of public lands.
In a completely odd clause, he suggested that the federal organs in charge
of agricultural policy should be integrated by one representative from the
'CONTAG' and one from the 'rural business' sector.
The proposal did not entirely please the reformist forces allied with the
rapporteur, but a stronger division emerged within the subcommittee, splitting
it into two antagonistic camps. The dispute involved a number of different
issues regarding the ultimate goals of land reform as well as some specific
implications of the rapporteur's document. The reformist camp argued the
need for redistribution of land based on different reasons. For example,
some of them argued that the existing concentrated land tenure structure was
anti-economic and it should, therefore, be destroyed to increase production
and productivity. The opposing camp counter-argued that productivity had
no clear correlation with the size of landholding, but it tended to vary more
according to the type of product. On the other hand, the process of concentration
was the result of bad agricultural policies which decapitalized the small and
medium-sized farmer. It was therefore more important to put emphasis on
agricultural policies rather than on land tenure policies.
A more popular argument from the reformist camp was that redistribution
of land would help to provide new jobs and allow the landless workers to
become new owners who could produce at least for self-sufficiency. For the
opposing camp, giving land to the landless people without providing an
effective agricultural policy would mean condemning them to ghettos. Giving
out land alone would not solve the problem and it was, therefore, necessary
to put more emphasis on the problems of agricultural policies. The reformist
camp responded that it was possible to produce without technical or financial
assistance, but it was not possible to do so without land. Closer to this
argument was the idea that land redistribution would improve income
redistribution. To this, the opposing camp argued back by saying that there
156 The Making of the Constitution

was no conclusive evidence to support that idea and that the improvement
of income redistribution had more to do with the relationship between capital
and labour. 28
Against the rapporteur's proposal, the conservative camp formulated
many arguments, particularly around two fundamental questions: the nature
of property rights and the protection for productive land against expropriation.
The reformist camp contended that private property had a social obligation
to fulfil, which did not equal only that of producing for the society within
the division of labour: 'what was the point of producing millions of tonnes
of grain when they represented misery and hunger for millions of Brazilians?'
For the conservative camp, property fulfilled a 'social function' rather than
a 'social obligation' which was confined to that of producing goods for the
society. If a property produces, it is consequently fulfilling its social function.
Thus, the expropriation principle should respect the criteria of productivity
and production. Constitutional protection should be guaranteed for all
'productive' land in order to avoid destructuring the process of production.
Moreover, the existence of over 100 million hectares of land in public hands
was considered sufficient to allow the distribution of land. Against attempts
to impose limits on landholding, 29 it was argued that those limits would deter
the capacity for private initiatives and free enterprise of individuals. Other
points of opposition included the form of payment for expropriation, the imissiio
automatica, and so on.
Deeply opposed to the rapporteur's document, the conservative camp
produced a counter-proposal, based on the justification that productive rural
property in Brazil needed peace and security, regardless of size. The document,
which became known as the Rosa Prata proposal, was sponsored by deputy
Rosa Prata from the PMDB. In contrast to the rapporteur's proposal of 14
articles, this had only seven articles. In accordance to the claim that more
emphasis should be given to agricultural questions, the two longest articles
were related to the principle of expropriation and the principles of agricultural
policy. The counter-proposal declared that property should fulfil a social
function, but the two concepts were clearly not tied together. The recognition
of property rights was not limited in any clear way by the fulfilment of its
social function. Expropriation was limited to the 'non-productive' lands. Both
the definition of the concept of 'non-productive' as well as the expropriation
proceedings were left to be defined in ordinary legislation, provided there
was a guarantee of full rights of defence to the dispossessed owner.
Compensation would be made 'in advance' in government bonds for land
(with a monetary correction clause) and in cash for infrastructure and
improvements. Regarding the value of the compensation, it was stated as
'just price', presumably seeking to imply market value. For the design of
 The Debate Over the Land Reform Issue 157

land tenure policies, it stated that other instruments such as colonization,

incentives and tax imposition, land acquisition credits and expropriation should
be considered. It made a long list of principles and instruments which should
be observed in designing agricultural policies. The last article was intended
for the creation of special jurisdiction in court to deal with land tenure
conflicts. 30

The Voting Session

On 22 May, the rapporteur presented a new report after incorporating some
of the 277 amendments which were submitted. Of all the amendments
submitted, 30 of them received a favourable evaluation, nine of them partially
favourable, and the remaining 238 were totally rejected. The alterations
made to the initial report, aiming at co-opting some votes from the most hesitant
members of the conservative camp, were the following. The concept of
social obligation was replaced for that of social function, though the criteria
defining this remained equally vague and subjective. It was also stated that
all infrastructure and necessary improvements would have to be compensated
in cash. The requirement to have a representative of 'CONTAG' in the
federal organs, that designed agricultural policy, was replaced simply by the
phrase 'rural workers'. One more article was added dealing with the principle
that should guide agricultural policy.
The following day, when the voting session took place, the subcommittee
underwent an extremely tense climate, having been interrupted several
times. 31 The disorder was caused by the combination of the noise coming
from the audience, both the UDR and CONTAG followers exchanging
insults between themselves and the congressmen, and a dispute between the
reformist and the conservative camps around two procedural questions,
which aroused multiple conspiracy interpretations on the reformist camp.32
On the eve of the voting day, the reformist camp expected to obtain 13
votes out of the 25 members of the subcommittee which would secure a victory,
if narrow, in favour of the rapporteur's report. But this expectation was put
into question as it was discovered that Deputy Benedito Monteiro (PMDB),
a secure vote in favour of the rapporteur's report, was missing on that day.
An earlier confusion over the representation of the Liberal Party (PL) in the
subcommittee had led Edison Lobiio (subcommittee's president) to consult
the assembly's president on the matter. After the response from Ulysses
Guimariies, Lobiio had then determined that, in the case of absence of any
member of the PMDB, the seat would be occupied by a member of the PL. 33
According to the substitution proceedings, any absent member from a given
party would be substituted in accordance with the order of signatures in the
subcommittee's attendance book. By coincidence, the first signature in the
158 The Making of the Constitution

attendance book that day belonged to the PL deputy, Oswaldo Almeida, an

adversary ofthe rapporteur's proposal.34
Based on another earlier consultation to the president of the assembly
regarding the possibility of presenting an entire counter-proposal (substitutivo
integral) to the report prepared by the rapporteur, Edison Lobao asked the
subcommittee to decide on the request of priority in voting the Rosa Prata
proposal. 35 The reformist camp reacted resentfully, arguing that this decision
and the previous one which allowed the substitution of a PMDB deputy for
a PL were a gross violation of the internal regulations of the assembly. This
caused the angry but unsuccessful intervention of the PMDB leader, Mario
Covas. In defence of his decisions, Lobao referred to the resolutions provided
by Ulysses Guimaraes and, after a long discussion, he declared the debate
over and put the Rosa Prata proposal into voting. The result gave a victory
to the conservative camp that approved, with a narrow majority of 13 to 12
votes, the Rosa Prata proposal, nullifying automatically the rapporteur's report
The PMDB membership, which alone held the majority of votes, was split.
The rest of the parties showed a more consistent behaviour. The results by
party are shown in Table 6.1 below.

Table 6.1 Vote by Party in the Subcommittee for Agriculture,

Land Tenure and Land Reform

PMDB PFL PDSIPTBIPDCIPL PCs/PDTIPT Total

In Favour 4 5 4 0 13
Against 8 0 0 4 12
Total 12 5 4 4 25

Source: Assembleia Nacional Constituinte, Diario daAssembleia Nacional Constituinte,

Supplement 104.

While reformist assembly members continued their complaints about the

violation of the internal statute, some of them blaming the 'incapacity or
unwillingness' of Ulysses Guimaraes, Edison Lobao suspended the session
in order to receive and organize the requirements for amendments to the
victorious Rosa Prata report. By this time (approximately 2 a.m.) the missing
deputy, Benedito Monteiro, had been located and was being transported from
Belem in a private jet hired by the reformist camp. With the incorporation
of Benedito Monteiro to the subcommittee, Oswaldo Almeida (PL) was
forced to leave the seat, making the conservative camp lose its majority.
The new majority then managed to pass a number of suppressive
amendments to eliminate the most undesired provisions, reducing the original
 The Debate Over the Land Reform Issue 159

report to only two brief articles (out of seven): one on the concept of property
rights and another on the creation of special jurisdiction in the judiciary to
deal with land tenure conflicts. It did not include the principle of expropriation.
The concept of property rights was vague enough to allow for wide
interpretation. The final outcome did not please the conservative camp, who
wanted explicit guarantees that 'productive' land would be excluded from
expropriation, and much less the group of members who supported the Lima
Filho report.

The Committee of Economic Order on Land Reform

The 64-member Committee of Economic Order had been formally installed

on 1 April but did not start proper deliberations until its three parent
subcommittees had been dissolved. In terms of party representation, the
committee reproduced as well the partisan proportionality of the assembly
as a whole. The agreement between the PMDB and the PFL leadership had
also secured deputy Jose Lins (PFL) in the presidency and Senator Severo
Gomes (PMDB) as a rapporteur. Although Senator Severo Gomes was
himself a businessman with interests in the agricultural sector (and had also
participated with the military), he was considered an ally to the reformist
forces. Jose Lins was considered an ally of the conservative camp.

Presentation of Severo Gomes's report

The committee was now to elaborate in a two-stage process a new report
between 25 May and 15 June. In addition to the question on the agricultural
policy and land reform, the committee would discuss two other themes: the
urban question and transport and the general principles of the economic
organization of the country. After receiving the three partial reports, Severo
Gomes put them into a single document and distributed it for discussion and
suggestions. On 8 June, Severo Gomes presented his report of 36 articles
(the substitutivo da Comissao da Ordem Econ6mica), 17 of which belonged
to the chapter of 'general principles', nine to the chapter of the 'urban
question and transport' and, ten to the chapter of the 'agrarian question'.
The ten articles on the agrarian question showed an attempt on the part
of the rapporteur to rescue many of the provisions of th~ defeated Lima Filho
report. The basic features of his proposal can be summarized as follows.
Property rights appeared directly subordinated to the observance of certain
social criteria (social function). The definition of the four standards to be
observed, simultaneously, by property holders was formulated in vague and
subjective terms, leaving ample room for interpretation. Compensation was
equally to be made in government bonds for land and in cash for infrastructure
160 The Making of the Constitution

and improvements. Government bonds were equally to be payable within a

20-year period with two years of maturity. The value of the compensation
was, however, left to be defined in ordinary legislation. Introducing an
innovation on the question of the imissiio automatica, Severo admitted that
the expropriation principle should include the imissiio automatica but did
not eliminate the intervention of the judiciary. The right of defence of the
dispossessed owner was explicitly and fully guaranteed. To compensate for
those cases in which the judiciary decided in favour of the dispossessed owner,
Severo proposed to pay them in cash instead of in government bonds. 36
The Severo Gomes report did not please the reformist camp and was
much less acceptable to the conservatives. The most important objection on
the part of the reformists was that, without a provision fixing a ceiling on
the value of the compensation, the proposal would practically block the process
ofland reform. The conservative camp argued that the proposal should make
clear, either in a separate clause or by introducing more objective criteria in
the definition of the social function of property, that 'productive' land would
be excluded from expropriation. The provision of imissiio automatica was
also rejected on the grounds that 'the democratic regime is characterised by
the appeal to the judiciary' _37

The voting session

In a series of private meetings, the rapporteur sought to forge an agreement
among the competing tendencies aiming at producing a consensus on
polemical points before the voting session. Confident that there existed an
inter-partisan conservative majority, the conservative leaders showed little
interest in negotiating with the rapporteur. Efforts within itself were already
underway to prepare a counter-proposal. 38 On 12 June, the committee's
president, Jose Lins, determined that full counter-proposals to the Severo
Gomes report were to be accepted and put into voting if requested (as it had
happened previously in the subcommittee). Then, Senator Irapuan Costa Junior
presented a counter-proposal to the chapter dealing with the general principles
and requested priority in voting. Deputy Jose Ulysses de Oliveira did the
same for the chapter on the urban question and transport, and Deputy Jorge
Vianna sponsored the counter-proposal to the chapter on the agrarian question.
The reformists reacted with the same kind of anger and accusations that
had been observed previously in the subcommittee. The first vice-president,
Helio Duque, resigned his post in protest at what he believed was a violation
of the internal statute. After a long protest, the reformists decided to leave
the committee. With a comfortable conservative majority of 38 votes, the
new proposals were easily passed without any alteration. On the question
of land reform, the final report was an extreme version of the Rosa Prata
 The Debate Over the Land Reform Issue 161

proposal that had been presented previously in the subcommittee. The

inclusion of a phrase that defined when a rural property was fulfilling its
social function (and was therefore excluded from expropriation) meant the
practical impossibility of legally justifying an expropriation decision. The
report stated that a property fulfilled its social function when it 'is, or is on
its way to be, rationally exploited'. 39 On 15 June, Jose Lins delivered the
final product of the committee to the rapporteur of the Integration Committee,
Deputy Bernardo Cabral.

Land Reform in the Integration Committee

Presentation of the First Working Constitutional Draft

The 93-member Integration Committee was to integrate and balance in a two-
stage process the final reports of the thematic committees in order to produce
the first complete working draft to be submitted directly for floor ratification.
Because of its strategic importance, the processing of the working draft
proved more difficult and delayed than expected.
After receiving all the final reports from the thematic committees, the
committee's rapporteur, Deputy Bernardo Cabral, prepared the first working
document by combining together all the partial reports without any alteration
of content. Thus, the chapter on the agrarian question was virtually the same
as that forwarded from the Committee of Economic Order, the Jorge
Vianna proposal.
On 9 July, Bernardo Cabral presented a new working document of 496
articles, which became known as Cabral I, after incorporating a number of
minor drafting amendments. This effort did virtually nothing to improve the
text and satisfied no one. Then, the assembly decided to give loose interpretation
to the clause of the internal statute regulation on the role of the Integration
Committee. Cabral proceeded now to elaborate a new working draft.

Preparation of the Second Working Constitutional Draft

During the elaboration of the second working draft, two new discussions
were dedicated to discuss specifically the agrarian question. On 6 August,
the Integration Committee's president called upon an extraordinary session
to discuss the matter. The arguments on both sides were virtually the same.
In the reformist camp, the most consistent argument was that land reform
was needed not to increase production or productivity but to eliminate
poverty and secure the future of democracy. The conservative camp insisted
that land distribution should be initiated first in the extensive lands in public
hands, and in the non-productive ones afterwards. Productive land had to be
given differential treatment or, for most of the conservative camp, to be
162 The Making of the Constitution

excluded absolutely from expropriation.40 The second part of the discussion

occurred a few days later during the presentation of the three popular
amendments on the subject submitted by different civic associations. 4 1
On 18 September, Cabral presented his new working draft after considering
thousands of amendments (305 on the agrarian question) and participating
in hundreds of negotiations. The basic feature of the new text (which became
known as Cabral II), including the chapter on the agrarian question, was its
conciliatory tone in sending most polemical issues for ordinary legislation.
The recognition of property rights was conditioned on the fulfilment of its
social function, but the definition of that concept was left to be defined in
ordinary law. This meant no victory for either of the opposing camps. The
inclusion or exclusion of 'productive land' for land reform purposes depended
now on the type of majority that would be in charge of writing the ordinary
law. Only 'small' and 'medium' land-holdings were explicitly and fully
protected against expropriation. The definition of what was to be considered
small and medium was also sent to ordinary legislation. As in other previous
proposals, land was to be paid for in government bonds and infrastructure
and improvements in cash. The value of the compensation and the regulation
on the use of the bonds were equally left for definition in ordinary law. On
the question of imissao automatica, the provision was that it would operate
after 90 days of the expropriation decree. The judiciary had then to judge
within that period on the legality of the case. After 90 days, if the judiciary
decided that the dispossession was illegal (because the property was fulfilling
its social function), then the compensation would be paid in cash.

The Voting of Chapter II of Title VII

The long session of nearly two months in which the Integration Committee
put the Cabral II document into voting was rough and tough. Before each
of the nine titles of the document was conclusively passed, the committee
had to go through a complicated voting procedure to clear all the different
types of amendments in accordance with the following order: entire chapters,
sections, articles, paragraphs, items and words. Since the beginning of the
voting, an intricate process of log-rolling had started to develop among the
three different groupings into which the committee had been informally divided
concerning the arrangement of amendments and the sequence in which they
would be voted. 42
On 10 November, the committee started the process of voting on the
chapter on the agrarian question. In theory, as part of a broader title, the chapter
had already been passed. But the amending process could still substitute,
suppress, add or modify some parts or even the entire chapter. The chapter
 The Debate Over the Land Reform Issue 163

contained two critical provisions which neither side was willing to compromise:
article 209 which formulated the concept of 'rural property rights' and article
212 concerning the question of imissiio automatica.
On the article 209, the conservative bloc presented an amendment sponsored
by Afif Domingos (PL) to substitute the entire article. The reformist camp
argued that the formulation of the proposed amendment disassociated the
right of property from its 'social function' conditioning. Put into voting, the
amendment was rejected by 59 votes to 34. Next, an amendment from the
reformist camp on the same article, sponsored by Deputy Jorge Hage, was
put into voting. The proposed amendment intended also to reformulate
article 209 in order to incorporate the definition of the concept of 'social
function', instead of leaving such definition for ordinary legislation as
proposed by the Cabral IT document. The amendment was passed by 49 votes
to seven. 43 Yet Deputy Allysson PaulineIIi proposed an amendment. adding
a phrase to article 209 intended to exclude explicitly 'productive' land from
expropriation. The amendment was not accepted as the committee understood
that the criteria defining the concept of 'social function' had already established
what kind of properties would be subject to expropriation or not. 44
Concerning article 212, the most radical members of the left, led by the
PT, did not accept any compromise which would exclude the imissiio
automatica provision from the constitution. Nor did they accept the Cabral
IT document which stipulated that the imissiio automatica would operate after
90 days of the issuing of the expropriation decree. An agreement forged by
Senator Richa secured then that an amendment sponsored by Deputy Masini
was passed by 86 votes. The amendment stipulated that the judicial
expropriation proceedings would be remitted to ordinary legislation. 45
At the end of the voting on the chapter on the agrarian question, most of
the reformist assembly members believed that the most fundamental principles
to guarantee a land reform process had been established in the committee's
constitutional project. However, the very same day, an inter-partisan group
of conservative members, who later became known as the Centriio, published
a manifesto denouncing the radicalization of the committee's decisions and
demanding an alteration of the assembly's internal statute in order to eliminate
the preference in voting of the committee's constitutional project in floor
voting. After the approval of the Centriio' s demands by the end of 1987, the
constitutional deliberations were practically at the initial point of departure.

The Decisive Stage: Floor Voting

The Centriio Proposal on the Agrarian Question

In preparation to the first voting round, the assembly members of the Frente
Parlamentar da Agropecuaria, in co-ordination with the leaders of the rural
164 The Making of the Constitution

business sector, started to prepare an amendment to replace the entire chapter

of the Integration Committee's constitutional project that dealt with the
agricultural question. 46 The modifications to the internal statute imposed by
the Centrtio had secured that such amendments were accepted. It had also
guaranteed preference in voting to those amendments with an absolute
majority of signatures (280) over the Integration Committee's constitutional
project.
Working within the Centrtio, the members of the Frente Parlamentar
introduced a collective amendment with over 280 signatures. The amendment
incorporated most of the proposals that had been defeated at the previous
stage. Its formulation was made in such a way as to exclude any possibility
that productive land would be subject to expropriation. The concept of
property rights was somehow linked to the concept of social function. But
the ultimate definition of the concept of 'social function' was remitted to
ordinary legislation. In addition, it explicitly restricted the principle of
expropriation to the small and medium land-holdings as well as the 'productive'
properties. Moreover, a property which exceeded its productive capacity or
extension could be expropriated only up to 'sixty percent' of non-used area,
'if the owner wishes so'. Other features included compensation in bonds for
land and in cash for infrastucture and improvements. On the value of
compensation, the amendment stipulates 'just value', presumably meaning
market value. The legal and administrative expropriation proceedings were
also sent to ordinary legislation.

The Defeat of the Centrtio 's Amendment

When the voting on the chapter on the agrarian question was approaching
by the end of April1988, the Centriio had already suffered a number of defeats.
In order to secure a majority for their amendment, the members of the Frente
Parlamentar, led by Allysson Paulinelli (PFL) and Arnaldo Rosa Prata
(PMDB), initiated a process of negotiations with the leaders of the reformist
bloc47 seeking to reach some acceptable compromise before the voting day.
In the reformist group, the negotiations were led by Vicente Bogo (PMDB)
and Euclides Scalco (PMDB).
Intensive efforts at reaching a compromise were still under way when the
voting day arrived on 4 May. The most serious disagreement was on the
question of the exclusion of productive land from expropriation. On the voting
day, an alternative proposal was put forward by deputy Jose Lins granting
differential treatment to productive land but without excluding it from
expropriation. The 'Ze Lins proposal' was accepted initially by both sides
but, under the pressure from the UDR and the CONTAG, who did not
endorse the agreement, the compromise did not materialize. 48
 The Debate Over the Land Reform Issue 165

Without agreement, the amendment no. 2043 of the Centrao was put into
voting. In the midst of a tense climate accentuated by the presence of excited
followers of the UDR and the CONTAG, the amendment failed to reach the
required 280 majority: 240 members voted in favour of the amendment, 242
against, with 37 abstentions.
In accordance with the internal statute, the defeated amendment would
now be put to voting for the second time after a 24-hour period. On 5 May,
the amendment was then put again to floor consideration. The result repeated
the defeat of the amendment. 237 votes in favour of the amendment, 225
against, with 37 abstentions.

The Impasse
Without any other amendment with a minimum of 280 signatures, the turn
in voting corresponded now to the chapter on the agrarian question of the
Integration Committee's constitutional project. When the chapter was put
to voting, the result was the following: 129 votes in favour, 365 against with
27 abstentions. None of the competing proposals had reached the required
absolute majority for approval. An impasse, denominated by the assembly
members as buraco negro (black hole), had been reached.
In order to break the deadlock, the assembly's general rapporteur (Deputy
Cabral) would now draft a new proposal to try to conciliate the competing
views. The proposal would then be submitted for approval within a 48-hour
period. If no compromise was reached, the chapter would then be excluded
from the constitution. This meant that the question of the land reform would
depend on an ordinary law and that expropriations would have to be regulated
according to a previous article on the fundamental rights that guaranteed
compensation would be 'just, prior and in cash'.

The Outcome: The Defeat of the Reformist Demands

The conciliatory proposal drafted by Cabral was accepted by both sides except
on one critical point: the question of 'productive' land. 49 For the purpose of
expropriation, the proposal established a distinction between properties
which fulfilled their social function and properties which did not. According
to the proposal, only the latter would be subject to expropriation. The proposal
included also a four-point definition on what was to be considered a property
which fulfilled its social function. For the conservative bloc, however, such
a definition was excessively subjective and did not amount in practice to
any limits on expropriation. They demanded an extra clause stipulating that,
with this more objective word, 'productive land' would also be excluded
from expropriation.
166 The Making of the Constitution

Cabral had accepted the inclusion of an extra clause to except 'productive

land' from expropriation. However, the text of his proposal also contained
an additional paragraph that granted differential treatment to 'productive
property' but did not conclusively exclude it from expropriation. The
suggestion was accepted by the reformist bloc, but did not please the
conservative bloc. The critical part of the proposal read as follows:
Sole paragraph. The law will guarantee special treatment to the productive
property and will fix norms towards the fulfilment of the requisites related
to its social function,failure to observe which would allow its expropriation,
according to the terms of the article 218. 50
The objection of the conservative bloc lay in the fragment that appears above
in italics. To solve a dispute like this, the parties' leadership would normally
make a procedural agreement by which the specific elements (one article,
one phrase, one word, and so on) of controversy of the base text would be
voted out separately through an amending process. In this specific case, two
procedural options existed. The first one consisted of passing the complete
text and then putting a suppress amendment to delete or ratify the controversial
phrase. The second one consisted of passing the base text without the phrase
and then running a separate vote through a DVS amendment, which required
at least 187 signatures to be considered, to decide on the fate of the matter. 5 1
According to Deputy Nelson Jobim, a few hours before the voting session
on 10 May, the leadership of the PMDB had accepted a procedural arrangement
proposed by the PFL leader, Jose Lauren~o. that would have guaranteed the
approval of the text as it had been drafted (hence allowing expropriation of
productive land). 52 Speaking on behalf of the Centriio, Lauren~o agreed to
support the base text if the PMDB leadership could secure the acceptance
of putting to the vote a suppress amendment to decide the fate of the
controversial phrase.
The PMDB leadership, of which Jobim was part, accepted this arrangement
because of the procedural advantages it offered to the reformist camp. In
adopting this procedure, it would be the Centriio that had to secure the
required quorum of 280 votes in order to pass the suppress amendment
(emenda supresiva) and hence deleting (if passed) the undesired phrase. By
contrast, a DVS amendment would mean that the reformist bloc would have
to secure the quorum of280 votes to incorporate the phrase into the text passed
already. This difference was of crucial importance as it was more difficult
to obtain an absolute majority of 280 to modify in one way or the other the
text that had been approved already.
However, the agreement did not hold because the leadership of the PT
refused to endorse any kind of compromise. Jose Lauren~o requested then
a DVS amendment. Put to the vote, the base text, leaving the controversial
 The Debate Over the Land Reform Issue 167

phrase out for ratification through the DVS, was approved by an overwhelming
majority of 528 votes. After that, the DVS amendment to decide whether
the phrase would be excluded or incorporated was put to the vote. As
predicted by Jobim, the result was a defeat for the reformist bloc, as it failed
by a margin of 13 votes to reach the required majority of 280 to incorporate
the phrase. 53 With this vote, the dispute on the land reform question was
practically concluded. The party vote on this crucial vote is shown in Table
6.2 below.
Table6.2 Inclusion of 'Productive Property' for Land Reform Purposes,
Vote by Party (Vote No. 533)

PMDB PFL PDS PDT PTB PTIPSBI PUPDC/ Total

PCs Others
Yes 185 21 4 22 7 27 1 267
No 90 103 28 2 15 15 253
Abs. 8 3 11
Total 283 127 32 24 22 27 16 531

Source: Sistema de Acompanhamento de Vota~ao, Prodasen.

Based on this vote, the PMDB showed a tendency towards the left. Sixty-
five per cent of its membership voted in favour of what could be considered
a leftist concept of private property. Over 30 per cent of its membership opted
for a more conservative conception of property. Leaving the nuances of the
question aside, this result shows an inverse tendency in the PMDB voting
from the predictions made at the beginning of the constitutional deliberations
by Martins Rodrigues. In his study, Martins predicted that 62 per cent of the
PMDB members would favour an agrarian reformlimited to non-productive
properties, while 30 per cent would favour a radical approach. 54 It can be
said that these results confirmed the lack of a clear ideological definition of
the PMDB announced at the beginning as well.
With over 80 per cent against the leftist proposal, the PFL confirmed the
consistency of its rightist profile as well as (almost accurately) the predictions
by Martins Rodrigues. The PDS, the group PT/PSB/PCs, and the
PL/PDC/Others showed also a remarkable consistency with Martins
Rodrigues's forecasting. The PTB and the PDT showed different behaviour:
both parties moved towards the left.

The Second Round: Ratification

For the ratification of the constitutional project in the second round of voting,
the procedural opportunities for any alteration were restricted. Yet the
reformist bloc prepared a new amendment to try to replace the phrase
168 The Making of the Constitution

'productive property' with the phrase 'rural finn' (empresa rural) on the article,
which stipulated what kind of properties were to be excluded from
expropriation. The underlying objective was to allow more room for legal
interpretation. The debate and arguments continued on the same lines
as previously.
On 29 August 1988, the text passed in the previous stage was ratified.
The proposed amendment failed again to reach the required majority to
replace the phrase. The final chapter on the 'Agricultural and Land Tenure
Policy and Land Reform' was composed of eight articles. In relation to the
previous constitution, the set of articles on the agrarian question incorporated
now a number of issues which were previously a matter of ordinary legislation
or simple administrative fiat, such as the set of instruments and general
objectives that should be observed in designing agricultural policy. On the
whole, the agrarian chapter was considered by many analysts to be one step
backwards compared to the estatuto da terra, which contained a looser
definition of what kind of properties could or could not be subject to
expropriation.

CONCLUSION

At the background of the debate over the land reform issue was the
preoccupation with poverty and the huge economic inequalities of the
Brazilian society. The need to provide the conditions for the distribution of
land was generally justified in social rather than economic terms. It was rarely
argued that the distribution of land was needed to eliminate structural
obstacles or to improve agricultural production and productivity. The concern
was rather with the perverse social effects that the 'successful' economic
development of the Brazilian countryside had generated. However, the
pressures for redistribution were strongly opposed by the counter-pressures
in favour of protecting the productive system. More than any other issue,
the debate on the issue of the land reform reflected the degree of difficulty
in dealing with the question of inequality in Brazil.
The issue divided the assembly into two distinctive camps which cut
across the largest parties, particularly the PMDB. The role of the leadership
in those parties was, to a large extent, confined to the arrangement of
procedural agreements in the several stages of the process. The major role
in influencing and negotiating the content was placed in the hands of the
committee's president and rapporteur.
The description of the drafting process showed that the mechanism adopted,
in an extremely divisive issue like this, did not favour consensus building.
 The Debate Over the Land Reform Issue 169

The decentralized procedure dispersed the discussion and replicated the

process (hence prolonging it) without fostering consensus. The several stages
of the process seemed pointless as they did very little to advance the discussion
and to find common grounds. As new participants were incorporated into
the debate, each stage departed virtually from nought.
The character of the process and the participation of organized groups from
outside helped to enrich the debate on the subject. But, at the same time, it
contributed very little to facilitate decision-making and the arranging of political
compromises, which could have led to some kind of agreement on general
principles. This was clearly shown in the case of the 'Ze Lins proposal' and
the 'Cabral compromise proposal' which failed due to pressures from outside.
7 The New Democratic Order at Work and
the Reform Process of 1993

The promulgation of the new constitution in October 1988 did not settle in
a conclusive way the constitutional debate. The text included itself two
transitory articles to allow for further discussion. One mandated a plebiscite
in 1993 to determine the future 'form of government' of the country. The
other established that a full revision of the document itself would be held in
five years' time, by absolute majority and unicameral vote of Congress.
During the final deliberations of the Constituent Assembly in 1988, a broad
conviction emerged among congressmen that the constitutional decisions on
the system of government had been taken under short-term considerations
and that a further discussion on the matter was necessary. At the same time,
there was a broad current of opinion among both the left and the right in
favour of an overall revision of the charter. Although the right ensured the
protection of their vital interests, the text was considered by most of its
spokesmen to be a serious obstacle to the future economic development of
the country. On the left, the perception was that the outcome had exceeded
the expectations and strength of their forces in the Constituent Assembly,
but had not achieved entire satisfaction. Both expected to improve their relative
strength in the future relation offorces. Finally, there was a strong sense of
uncertainty about the full political implications of putting into practice what
was written down on paper. It was only over the following years that the
effects of the new democratic framework became more apparent.
The first part of this chapter examines the fundamental problems of the
new institutional architecture which emerged between the promulgation of
the new constitution and the constitutional revision of 1993. The second part
examines the process of the plebiscite of 21 April. And finally, the last part
looks at how the process of the constitutional revision evolved and how it
failed to address the fundamental constitutional problems of the country.

THE CONSTITUTION AND THE NEW DEMOCRATIC PROCESS: THE

IMPACf ON DECISION-MAKING

Despite the doubts about the viability of the new democratic framework
established by the new constitution, at the end of 1988, there existed a broad
optimistic conviction among political circles that the forthcoming election
of the president by direct universal suffrage would change radically the

170
 The New Democratic Order at Work 171

rather chaotic situation of the country's first post-military government. The

persistent failure of the government to deal with the economic crisis was
attributed to the lack of democratic legitimacy of the transition government.
The expectation was, then, that a directly elected president would have
sufficient capacity finally to put things in order and run the new democratic
system.
After the first direct presidential election was held in the second half of
1989, there was a strong conviction among academic and political circles
that Brazil's fundamental transition troubles were over. The capacity to
process a highly polarized and competitive presidential contest was considered
an indication of the country's ability and willingness to resolve its political
disputes by peaceful democratic means. For some, the participation of
illiterates in the electoral process, for the first time in the history of the country,
was the inauguration of a truly democratic Brazil. The concerns about
democratic consolidation focused mainly on the substantive or socioeconomic
aspects of the problem.
The optimism gradually started to fade away over the following months
as the new government proved incapable of controlling the economic crisis,
corruption scandals emerged involving the president himself, and threats of
military intervention appeared. A growing concern among politicians and
academics developed about the intrinsic defects of the institutional architecture
to generate a stable and efficient democratic system. What was questioned
was not the democratic (participation and contestation) credentials of the
system, but mainly the inability to generate and implement policy decisions.
By 1993, one of its most serious critics contended that the institutional
structure set up by the constitution was 'full of generous democratic intentions
but is probably unsuitable as a solution to the challenges posed by
modernization and, moreover, dangerous from the perspective of
governability' . 1
Despite the ability of the system to impeach President Collor after two
and a half years in office through constitutional means, which for some
represented the most difficult test of Brazilian democracy, 2 there had
developed a strong conviction that a number of elements of the institutional
architecture had combined to produce a steady erosion of the decision-
making capacity of the system. Among these elements are the open-list
proportional representation electoral system, an extremely flexible party
legislation which entices fragmentation and hinders partisan cohesion, a
three-layer decentralized federation which multiplies counterweights and an
extremely detailed and rigid constitution that can only be amended by broad
coalitions. 3 Although there is broad consensus on the symptoms, there is
172 The Making of the Constitution

disagreement about the institutional roots of these problems as well as the

alternatives to correct.

The Executive-Legislative Relations

The relationship between Congress and the presidency during the New
Republic was far from smooth. During the elaboration of the constitution,
as illustrated in the previous chapters, President Sarney could hardly exercise
any influence upon the constitutional decisions of Congress. His policy
decisions relied heavily on the decree-law mechanism which was much
criticized during the authoritarian military government. From 1985 until1988,
no less than 258 decree-laws were issued by President Sarney. With the
introduction of the new constitution, he then resorted to the new mechanism
of the 'provisional measure' 4 to introduce his policy decisions and bypassed
the strengthened powers of Congress. He issued 24 provisional measures in
1988 and 103 in 1989.5
This lack of co-operation between the two branches of government was
attributed to Sarney's original lack of legitimacy which resulted from the
special circumstances when he came to power. It was hoped that this situation
would be corrected once the first direct presidential election took place.
However, this optimism started to fade away as the presidential campaign
unfolded. The electoral outcome of the first round brought about the collapse
of the candidates of the parties with the largest representation in Congress,
the PMDB and the PFL. The dramatic disassociation between the electoral
strength and the party representation in Congress revealed an increasing concern
regarding the potential for conflict between the elected president and Congress,
in the case of a presidential victory by either of the two candidates who would
contest the run-off election, Collor's PRN (National Renovation Party) and
Lula's PT (Workers' Party). 6
As shown in Table 7.1 below, with only 2.6 per cent of the seats in the
chamber, Colior took presidential office on 15 March 1990. Once in power,
the question was how the relationship between President Colior and Congress
would evolve. During the 30 months in which Coli orremained in office (March
1990-September 1992), this relationship was never smooth, if not in open
crisis. Initially, Colior preferred to bet on the legitimacy of the ballot box to
force Congress to approve his policy decisions. Some 20 provisional measures
were issued by President Colior as part of his first economic package, the
Plano Collor, in the first days of his administration.
The reaction of Congress against the president was also attenuated by a
set of external factors, such as the special circumstances of emergency
resulting from the threat of hyperinflation (reaching more than 80 per cent
 The New Democratic Order at Work 173

by March) and the public support for the kind of modernizing measures,
involved in his Plan. Despite the introduction of harsh measures such as the
temporary confiscation of 80 per cent of the financial assets of the private
sector and great controversy about the constitutionality of some of them, 7
Congress did not reject the presidential initiatives. Some of them lost validity
as Congress did not examine them, but were immediately reintroduced by
the president.s

Table 7.1 Party Representation in the Chamber of Deputies and National Vote of
the Respective Candidates in the First Round of the 1989 Presidential Election

PMDB PFL PDS PSDB PDT PT PRN Others

%in
Chamber* 39.7 20.8 5.8 9.0 5.6 3.2 2.6 13.3
%First
Round 4.4 0.8 8.3 10.8 15.5 16.1 28.5 15.6
Notes: • is the representation by party in July 1989.
Source: Lamounier (1989c: 141 ).

With the failure of his economic Plan, things became more problematic.
President Collor experienced a rapid loss of prestige which weakened his
capacity to persuade Congress. At the same time, Congress also became more
assertive and ready to challenge the president. The confrontation was signalled
in the second half of June when the Chamber of Deputies initiated and
passed a law promoting indexation of wages and prices. The law was vetoed
by the president, and then was overridden by the Chamber. The veto was
finally saved as the Senate decided to favour the president by a margin of
four votes. 9
After the congressional election of 1990, Collor's PRN did not improve
its representation a great deal and the troubles in forming a stable coalition
became even more severe due to the growing fragmentation of the party system.
His PRN accounted for no more than 8 per cent of the seats in the Chamber
of Deputies. After the alliance with the PFL, his political base in the Chamber
of Deputies increased to some 25 per cent of the seats. The president struggled
to broaden his congressional backing over the following months through direct
payoffs to deputies and the trading of ministerial portfolios to state leaders
in control of legislators. Negotiations on specific policy initiatives were
now combined with the adoption of legislation through the mechanism of
the provisional measure. 10
Yet Collor' s relationship with Congress was never solid and stable. When
the corruption charges were denounced by his own brother, Pedro Collor,
the president's relationship with Congress went from bad to worse, leading
174 The Making of the Constitution

eventually to his impeachment during the second half of 1992. On 29

September 1992, 434 out of 503 members of the Chamber of Deputies voted
in favour of the impeachment. Not even the government parties- PRN and
PFL- defended the president. Over 70 per cent of the PFL and PRN deputies
voted for the impeachment. 11
Collor's successor, !tamar Franco, did not improve the relationship with
Congress a great deal. In principle, he counted on the support of the seven-
party congressional majority of 441 deputies which also had representation
in his cabinet. But the coalition was far from having a clear 'constructive'
profile. It was rather a veto coalition whose limited capacity for positive unified
action was not to make things easier. The new government also had to resort
to the mechanism of provisional measures. Five years after the adoption of
the new constitution, the use of this legislative instrument for 'relevant and
urgent cases' had become part of the 'normal' functioning of Brazil's new
democracy. 12
With the plebiscite on the system of government already scheduled for
1993, the crisis of the Collor government intensified the discussion about
the institutional arrangement among the academic and political circles.
Opinion swung for a while in favour of a parliamentary system, 13 but the
conclusions in view of the lessons from the Coilor crisis were not unanimous.
For some, it reinforced the pro-parliamentarian argument according to which
the parliamentary system provided institutional flexibility to solve a government
crisis quickly (the rigidity/flexibility argument) without creating a crisis of
regime. 14 For others, it indicated precisely the opposite: that the presidential
system was capable of ousting a president without going into an institutional
crisis. Some others went further to argue that Collar's case had shown the
virtues of the system, as an. investigation of that sort would have been
unlikely under a parliamentary system.
The debate about the presidential vs. parliamentary government continued
through the following year. However, the debate was taken far beyond the
presidential vs. parliamentary controversy.lt involved the discussion about
the prior (and for some, more important) need to introduce changes to the
party and electoral system if either system of government was to work out.
Unlike parliamentary systems, the presidential ones generally lacked
institutional devices to ensure that the two branches would be in co-ordination.
But, even when it was accepted that the efficiency of the presidential system
was directly affected by the position of the president in relation to the
majority in Congress, it was usually acknowledged by both sides that a more
serious problem was the difficulty in forming a congressional majority, itself
due to the growing fragmentation of the party system.
The fact that the president frequently could find himself in a sharply
minority position was not only the fault of the presidential system itself, but
 The New Democratic Order at Work 175

also the result of the party and electoral laws which encouraged the proliferation
of new parties. Thus, the party and electoral systems not only made it more
likely that the presidents would regularly be in a minority position, but
would tend to obstruct the formation of majorities. There was also the
conviction that the strengthening of the party structure would not be guaranteed
automatically from the introduction of the parliamentary system, as it was
sometimes argued. 15 Yet another line of argument was that the existing
presidentialism and the electoral system could be workable if the presidential
and congressional elections could be made to coincide in order to stimulate
coalition-forming before the president reached office. 16

The Fragmentation of the Party System

The preoccupation with ensuring the co-ordination between the presidency

and Congress was to some extent overshadowed by the growing concern about
the impossibility of sustaining a majority, itself due to the high level of
fragmentation in Congress and to the lack of internal cohesion within parties.
In designing a party system, a very difficult balance must be attained between
the need for securing stable and effective majorities and the need for
representing all the interests of significant political and social groups. A system
which systematically leads to fragmentation has to be avoided in order to
facilitate the formation of majorities. But exclusion of significant political
forces from the parliamentary party system could threaten the legitimacy of
the new regime.
As was shown in the previous chapters, the party reform of 1985 deregulated
all the party legislation in the belief that the transition demanded the adoption
of more flexible rules so that no one sector alone would be tempted to contest
the legitimacy of new democracy. During the constitutional deliberations,
several attempts were made to secure the formation of majorities by introducing
a new electoral system, but the threat of growing fragmentation was not yet
taken seriously.
Tables 7.2 and 7.3 below show the changes in the distribution of partisan
forces in the Chamber ofDeputies and the Federal Senate since 1983. As can
be observed, the number of parties in the ChamberofDeputies increased from
five in 1983 to 22 in only a few years' time, as a result not only of new
congressional elections but also of the continuous splits and changes of party
affiliations between elections. Until the opening of the new legislature in 1987,
more than 70 per cent of the seats were concentrated on the two largest parties.
However, by the beginning of the new legislature in 1991, the dissolution of
the numerical strength of those two became apparent: their relative numerical
strength decreased from 78 per cent in 1987 to 38 per cent in 1991, and the
number of parties increased from 13 to 22 in the ChamberofDeputies. 17
176 The Making of the Constitution

Table 7.2 Distribution of Partisan Forces in the Chamber of Deputies, 1983-94

Party Jan. * Jun. Jul. Feb.* Nov. Feb.* Jun. Oct.*

1983 1985 1986 1987 1990 1991 1993 1994
PMDB 200 199 222 260 131 108 101 110
(42) (41.5) (46.4) (53.5) (26.5) (21.5) (20) (21.5)
PFL 100 127 118 90 83 88 91
(21) (26.5) (24.5) (18.2) (16.5) (17.5) (17.7)
PDS/ 235 135 68 33 32 43 69 52
PPR (49) (28) (14.2) (7) (6.5) (8.5) (13.7) (10.1)
PSDB 60 38 44 63
(12.1) (7.6) (8.7) (12.3)
pp 38 34
(7.6) (6.6)
PDT 23 25 23 24 38 46 38 30
(5) (5.5) (4.8) (5) (7.7) (9.1) (7.6) (5.8)
PT 8 5 6 16 17 35 36 49
(1.5) (l) (1.3) (3) (3.4) (7) (7.1) (9.6)
PTB l3 10 12 17 28 37 26 31
(2.5) (2) (2.5) (3.5) (5.6) (7.3) (5.2) (6)
PRN 31 41 17
(6.3) (8.1) (3.4)
PL 6 13 16 13 4
(1.5) (2.6) (3.2) (2.6) (0.8)
PSB 3 I 8 11 9 17
(0.6) (0.2) (1.6) (2.2) (1.8) (3.3)
PCdoB 2 2 3 6 5 7 10
(0.5) (0.4) (0.5) (1.2) (I) (1.4) (2)
PSD I 6 3
(0.2) (1.2) (0.6)
PCB/ 3 3 3 3 3 3 2
PPS (0.5) (0.6) (0.5) (0.6) (0.6) (0.6) (0.4)
PSC 4 1 5 3 3
(0.8) (0.2) (l) (0.6) (0.6)
PRS 4 3
(0.8) (0.6)
Others 9 5 38 27 2 14
(1.9) (l.l) (7.7) (5.4) (0.4) (2.7)
Total 479 479 479 487 495 503 503 513
(100) (100) (100) (100) (100) (100) (100) (100)

Notes: * is the composition following the elections in 1982, 1986, 1990 and 1994.
Sources: Compiled from Fleischer (1990:223); Lamounier (l991a:96); Correio
Brasiliense 28 June 1993; Veja 19 October 1994.
 The New Democratic Order at Work 177

Table 7.3 Distribution of Partisan Forces in the Senate, 1983-94

Party Jan.* Jun. Jul. Feb.* Nov. Feb.* Oct.*

1983 1985 1986 1987 1990 1991 1994

PMDB 21 25 24 45 22 27 21
(30.5) (36.2) (34.8) (62.5) (29.3) (33.5) (25.9)
PFL 17 22 15 l3 15 19
(24.6) (31.9) (20.8) (17.3) (18.5) (23.5)
PDS/PPR 46 25 13 5 3 3 6
(66.5) (36.2) (18.9) (6.9) (4) (3.7) (7.4)
PSDB 12 10 11
(16) (12.4) (13.6)
pp 5
(6.2)
PDT 1 1 3 2 5 5 6
(1.5) (1.5) (4.3) (2.8) (6.7) (6.2) (7.4)
PT l 5
(1.2) (6.2)
PTB 1 1 l 1 4 8 5
(1.5) (1.5) (1.4) (1.4) (5.3) (9.9) (6.2)
PRN 3 3
(4) (3.7)
PL 4 1 1
(5.8) (1.4) (1.2)
PSB 2 1 2 1 1
(2.9) (1.4) (2.7) (1.2) (1.2)
Others 2 11 8 l
(2.8) (14.7) (9.9) (1.2)
Total 69 69 69 72 75 81 81
(100) (100) (100) (100) (100) (100) (100)

Note: * is the composition following the elections in 1982, 1986, 1990 and 1994.
Sources: Compiled from various sources: Fleischer ( 1990:223); Lamounier (199la:96);
Veja,19 October 1994.

To make things worse, the re-alignment of political forces had not been
translated into a stronger internal cohesion within the parties. High levels
of ideological dispersion within the same party continued to exist as well as
the lack of internal discipline. During the first half of th~ 1991-941egislature,
125 deputies, this was one quarter of the Chamber's deputies, had changed
party affiliation one or two times. IS
If the symptoms are easy to identify, the causes and the corrective measure
are more problematic. Some factors, such as the history of discontinuity and
the irrational intervention of the military (amounting, according to some, to
an ecological disaster), have been elaborated by some authors to account for
178 The Making of the Constitution

the weaknesses of the party system. Several institutional factors have also
been advanced to account for the growing fragmentation and persistent lack
of cohesion. 19 For some, the fragmentation and lack of cohesion is attributed
to the combined effects of the open-list proportional representation electoral
system for the Chamber of Deputies and the permissive party law.
According to some authors, the open-list PR electoral system allows fierce
competition among hundreds of candidates of the same parties. This weakens
the cohesion of the party and the party leadership because of the inter-party
individualism. Associated with this is the problem that parties as organizations
have hardly any responsibility for financing candidates, who raise money
by themselves. 20
Party law is considered too permissive to allow the consolidation of the
existing parties. A party is allowed to operate under a provisional status for
a period of one year provided that its founders (a provisional national
committee of seven to 11 members) apply for registration at the electoral
justice by issuing a party manifesto, programme, statute, followed by 101
signatures of its founders. To acquire a permanent registration, the party has
to organize state and local directories within a year in nine states and one-
fifth of the respective municipalities. For a year, the new parties can compete
for elections and have free access to the electronic mass media (in proportion
to their representation in the chamber, but guaranteed to all of them at least
a minimum). This of course provides incentives for new party formation and
consequently fosters fragmentation and the weakening of party discipline.
In connection with this, the threshold for representation in Congress is low,
which also helps to foster fragmentation.
There has developed a substantial conviction that the electoral and party
legislation should be redesigned to correct the built-in incentives to
fragmentation and weak cohesion. There has been frequent reference to the
German electoral system combining district voting with some form of PR.
A threshold of 5 per cent of electoral support has also been discussed to allow
party representation. Other changes include the need to produce a better
representative balance in the Chamber of Deputies, where, under the current
system, the most populous states are under-represented in comparison with
the states of smaller populations and economic weight.

The Economic and Financial Constraints

Using Elster's distinction between procedural and substantive limits to

majority rule of democratic constitutions, elaborated in the introduction of
this thesis, there are two sets of provisions of the 1988 Constitution which
have imposed limits to decision-making. Unlike the two sections above, these
 The New Democratic Order at Work 179

provisions do not belong to the procedural aspects of the constitution, without

which majority rule could not exist. They are rather provisions which impose
limits to the decision-making and which can be in altered principle through
the normal amending procedure.
One set of those clauses is concerned with limits on the economic policy
decisions. The other is concerned more specifically with the financial
constraints upon the central government decisions, particularly the distribution
of revenues among three levels of federation. During the elaboration of the
constitution in 1988, the members of the constituent body were still largely
committed to the state-led economic tradition and the high-growth-cum-high-
inflation policy orientation. The constraints on economic decision-making
did not allow room for a serious economic adjustment. The conviction that
enduring stabilization depends on public sector reform and fiscal balance
was not yet prevalent. 21 It was the collapse of the Berlin Wall and the
deteriorating financial situation of the state that brought attention to these
questions. More in tune with the contemporary neo-liberal thinking, Collor
came to office praising liberal economic policies, privatization and an
opening of Brazil's highly protected markets as the cure to inflation.
As indicated in Chapter 4, the new constitution adopted a major fiscal reform
in order to increase the financial power of the states and municipalities.
According to the constitutional stipulations, an increase in transference of
financial resources from the central government to the Fundo de Participac:iio
was to be made gradually until1993. 22 By the new scheme, the share ofiPI
(tax on industrialized products) and theIR (income tax) to be allocated to
the Fundo de Participac:ao, the two most important fiscal revenue sources
from which the distribution to state and municipalities was to be made,
would be increased from 14 to 21.5 per cent to states, and from 17 to 22.5
to municipalities. The Fundo Especial to help the three poorest regions were
also increased from 2 to 3 per cent of IPI and IR. At the end, the share of
national tax revenues available to the central government would decrease
by 1993 from 44.8 per cent in the previous constitution to 36 per cent. This
would in effect eliminate the centralizing effects of the former military
legislation. Together with other kinds of provisions, such as the allocation
of 18 per cent of public spending to education and others, severe financial
constraints were imposed on the government capacity to balance the
federal budget.
Between 1988 and 1993, the extra revenue given to state and local
governments rose from 8 to 12 per cent of GDP, without increasing their
responsibilities for tax collection or the provision of services. 23 The effects
of these provisions not only had a negative impact upon the finances of the
central government, but also they dispersed power and left the federal
180 The Making of the Constitution

government with little leverage mechanism to impose coherence on the

decision-making process. Financial losses were accompanied thus by an
enormous loss of political control as the central government used these
resources to obtain the support of Congress via distribution of resources to
state governors. Governors increase their capacity to oppose central
decision making. 24
This and other issues of economic and financial character were first
discussed after the collapse of Collor' s first economic package at the beginning
of 1991. In fact, Collor contemplated the possibility of bringing forward the
constitutional revision as it became clear that 'the constitution was inflationary
and needed to be corrected' .25 The constitution had reduced enormously the
room to balance the federal budget and thus to control inflation. Almost 80
per cent of the fiscal revenues were automatically tied to three types of spending
items: personnel, internal debt service and constitutional transference. Fiscal
adjustments required cutting spending in some crucial areas such as
infrastructure and social programmes.
In August 1991, Collor prepared a package of constitutional reforms
known as the Emendlio. The proposed amendment was composed originally
of a set of measures seeking to curb the decentralization of fiscal resources
and the financing of the public sector, and anqt.ber set of measures directly
related to the modernization of the economy. The former included measures
such as the reduction of transference from the central government to state
and municipalities, the end of jobs for life in the public sector, the reform
of the social security system, and a change in the retirement pension scheme.
The latter included items such as the abolition of state monopoly in the oil
and telecommunications sectors, and an end to the discrimination between
national and foreign businesses. These basically are some of the constitutional
reforms which would be on the table of discussion in 1933 and beyond.

MONARCHY OR REPUBLIC, PRESIDENTIAL OR PARLIAMENTARY

GOVERNMENT: THE PLEBISCITE OF 21 APRIL 1993

The preparations for the plebiscite started in Congress in early 1993 where,
as it had happened five years earlier, coalitions cutting across parties arranged
the mechanics of the public consultation. The first point of discussion
concentrated on the date of the plebiscite. Originally scheduled in the
constitution for 7 September 1993, the plebiscite was brought forward to 21
April through a constitutional amendment, proposed by parliamentary
advocates. Contested by presidentialism advocates in the constitutional
 The New Democratic Order at Work 181

court, the change of date was, nevertheless, confirmed one week before the
polling day.
As analysed in Chapter 5, the plebiscite was proposed as a result of the
defeat of the parliamentary proposal during the final phase of the constituent
process. Under the conditions in which the constitutional decision was taken,
advocates of parliamentary government were not prepared to let the issue
die, but found out that the only possible way to do so was to support an
amendment by Deputy Cunha Bueno. On the grounds that the provisional
government's first decree during the proclamation of the Republic in 1889,
which had promised a plebiscite to decide whether the country should be a
republic or a monarchy, had not yet been fulfilled, he proposed a plebiscite
in five years' time to decide between those choices. Since the implicit
parliamentary monarchical option of the Cunha Bueno amendment did not
appeal to most parliamentary advocates, a sub-amendment was then negotiated
in order to incorporate a separate set of choices. Monarchists and parlia-
mentarists united then to pass the proposal. This would be the second time
in 30 years that the Brazilian electors were called upon to decide the country's
system of government. 26

The Organization of the Process

The constitution did not provide for concrete institutional choices to be put
forward before the electorate. 27 The plebiscite was, therefore, intended for
the voters to indicate only the general principle regarding the form and the
system of government. The concrete form of the successful principle was to
be determined at a later date by congressmen, presumably during the
constitutional revision scheduled for October 1993.
In order to represent the three possible institutional combinations - par-
liamentarism with republicanism, presidentialism with republicanism, and
parliamentarism with monarchism- Congress resolved in January 1993 to
form three fronts involving all congressmen and civic organizations. Each
of them had to present a programme enumerating the basic characteristics
of its proposed institutional model. 28
The ballot paper was originally designed to make the voter choose in a
single ballot one of the three possible institutional options. But complaints
over parliamentarism bias made the country's top electoral court redesign
it and adopt a two-ballot procedure- form and system separately. In the first
ballot the voter would choose between a monarchy and a republic, and in
the second, between a parliamentary or presidential system. By this new voting
procedure, an institutionally illogical combination became theoretically
possible: presidential monarchy.
182 The Making of the Constitution

The formation of the fronts cut across party lines. It split traditional allies
and brought together old political adversaries. With the exception of the PT,
that decided through an internal plebiscite to support presidential republicanism,
and the PSDB, that was committed to parliamentarism since its foundation,
no major political party officially took any position.
The Parliamentary Republican Front presented the most concrete institutional
model, though it was in several aspects a diminished form of parliamentary
government. In essence, the proposal consisted of an institutional arrangement
similar to the current French model. It provided for a head of state to be elected
by direct suffrage for a six-year tenure endowed with some executive powers.
At the same time, it permitted cabinet appointments, including the prime
minister, from outside the parliament. The proposal contemplated the
extension of the model to all states' governments by 1999, but made no
provisions for the municipal government. Neither did it contemplate the role
of the upper house of Congress under the new institutional design.
The programme had many areas undefined. Moreover, it failed to address
fundamental questions which were vital for many potential voters. Because
of profound internal disagreements, impending reforms to improve the
legitimacy and efficiency of Congress were dropped from the programme.
In order to induce sceptical voters, a referendum in four years' time to ratify
the arrangement was later offered.
The Presidential Republican Front chose to present a minimal programme
of twelve general points which united the diverse leadership interests. The
model included a reduction of the presidential mandate to four years to
coincide with the congressional electoral timetable. Without making concrete
stipulations, the general principle was to further strengthen Congress, vis-
a-vis the executive.
The Monarchical Parliamentary Front presented the most radical programme.
It proposed the introduction of a parliamentary monarchy in which the head
of state, one of the heirs of the Bragan~a dynasty to be designated by
Congress, would be just a figurehead similar to the Queen of England, with
no executive or governmental powers. Unlike the parliamentary republican
programme, the prime minister was given full executive and governmental
powers, the parliamentary system was to be extended to all states and
municipalities, and extensive provisions were presented to restore the
legitimacy of Congress.

The Campaign

From the beginning, the plebiscite was received with very little enthusiasm
and much scepticism by the public. Many journalists and academics questioned
 The New Democratic Order at Work 183

the relevance and character of the public consultation. Politicians were

accused of neglecting the more crucial questions of electoral and party
reform and deviating from the more fundamental social and economic
problems. Suspicions were raised regarding the political fate of the electorate's
decision. Congressmen would not be compelled legally to abide by the
outcome of the consultation during the constitutional revision of October
1993. Moreover, the details of the victorious institutional choice were left
to be determined at their discretion.
The campaign was predominantly carried out on television. Each of the
three fronts enjoyed a ten-minute broadcast during prime viewing time twice
a day. The television programmes were far from satisfactory. Short films,
with vivid images, were prepared to make effective attacks on the rival
camps and to present, in an extremely manipulative way, the alleged merits
of the proposed models. Little attempt was made to explain to the electorate
the differences between the choices at stake.
The Presidential Republican Front ran its campaign, stressing that the right
of the Brazilians to choose directly the person who shapes the country's destiny
was an important achievement of the recent struggle for democracy. Under
the military regime, presidents were not elected directly. Its campaign slogan,
diretas siempre (direct elections always), was an intelligent attempt to link
presidentialism with the diretas-ja campaign (direct elections now) movement
that had been organized a few years earlier against the military regime. This
made the rival options sound like a reversal of the democratic clock.
This message had an immediate and decisive impact upon the voters. Polls
registered an impressive rise of up to 52 per cent within two weeks of the
broadcast, giving the presidential option a comfortable and almost unbeatable
lead of 26 points ahead of its parliamentary rival. In addition, the presiden-
tialist campaign exploited the traditional lack of prestige of the Chamber of
Deputies, the chairman of which was then involved in scandalous corruption
charges. They also highlighted the risks and uncertainties implicated in any
kind of institutional experiment, thus pressing the Parliamentary Republican
Front to propose a testing period of four years. The presidentialist front also
exploited the traditional importance of political figures in shaping
voting behaviour.
The Parliamentary Republican Front's campaign ~tarted with didactic
attempts to explain how the model would secure political stability and
encourage further reform. It attributed to presidentialism the persistent
political instability of the country. However, the programmes failed to deliver
a clear message to the voters. Presidentialism's broadcasts were better
received by the electors. 29 Moreover, the lead of presidentialism at the polls
moved the parliamentarist campaign in a defensive and negative direction.
184 The Making of the Constitution

Although the Monarchist Front advocated a parliamentary monarchy, the

main campaign focus was on the monarchical component. In an extremely
manipulative way, it emphasized the economic prosperity of many Western
European parliamentary monarchies. Faced with attacks from the Presidential
Republican Front, associating the Brazilian monarchy with prolonged slavery,
monarchism began to drop back from its peak of 17 per cent at the polls.

The Outcome: The Status quo Confirmed

In November 1992, parliamentarism led with 41.7 per cent, against presi-
dentia1ism with 36.3 per cent. The figures suggested that the parliamentary
option was capitalizing on the impeachment process against President Collor.
This trend was gradually reversed. By 19 February 1993, when the radio
and television campaign began, presidentialism was already three points ahead
of parliamentarism. Two weeks later, the former reached 52 per cent, and
the latter dropped to 26 per cent. In order to win, parliamentarism needed
to convince the 19 per cent of indecisive voters as well as to pull votes from
the presidential camp. The PT definition for the presidential system on 14
March, further strengthened the lead. The victory of presidentialism was almost
certain one month before the polling day. On 21 April, the results were of
no surprise: presidentialism received 55.5 per cent of the votes cast; parlia-
mentarism 24.7 per cent; 5.2 per cent were blank votes, and 14.7 per cent
were spoiled. 30
Regarding the second set of choices, in February 1993, polls registered
an overwhelming support of 69 per cent for republicanism against 13 per
cent for monarchism. The campaign changed these figures slightly, but the
final results showed a solid victory for republicanism. Republicanism obtained
66.1 per cent of the votes cast, monarchism l 0.2 per cent, and blank and null
votes were 10.5 and 13.2 per cent respectively.
The proportion of blank and null votes was extraordinarily high. It was
only 5 per cent in the 1989 presidential election. Abstentions, at 25.7 per
cent were also very high for a country in which voting is compulsory.
Abstentionism in 1989 was only 14 per cent. This might be caused by two
factors: the lack of understanding of the abstract choices at stake, given that
three-quarters of the 90 million electorate only had, at best, elementary
education; and the perception or conviction that nothing substantial was really
at stake.
The outcome of the plebiscite can be explained by three main factors: the
timing and the nature of the plebiscite and the effective use of television by
the presidentialist front. Had the public consultation between republic and
monarchy been carried out a century ago, the republican form of government
 The New Democratic Order at Work 185

would probably have been defeated. The monarchist tradition of the nineteenth
century became alien to the current Brazilians. No republican front was given
propaganda time of its own, nor was it necessary. Equally, if the decision
between presidentialism and parliamentarism had been taken in 1992, in the
midst of the Collor crisis, parliamentarism would have had a better chance.
The successful conclusion of the impeachment crisis and the popularity of
the new government weakened the prospects for the parliamentary option.
As had been the case before, television played a critical role in shaping
the vote. 31 The effective use of television propaganda by the Presidential
Republican Front, reminding the electors of the struggle for direct presidential
election, was particularly important in shaping the vote. At the same time,
the difficulties of the reforming alternatives in presenting abstract ideas to
an electorate with low educational levels diminished their chances. The
results of the plebiscite settled, at least for some years, the discussion on the
presidential vs. parliamentary government. But the institutional debate was
far from closed. As it will be shown, other aspects of the institutional
structure, which could alter the way the presidential system works, would
be on the agenda of discussion during the constitutional revision and
afterwards.

THE FAILURE OF THE CONSTITUTIONAL REVISION

After the outcome of the plebiscite, the forthcoming constitutional revision

placed a wide range of new issues on to the table of discussion. The first
point of the agenda consisted of the various questions involving the revision
process itself. By June 1993, an increasing number of press articles by
politicians, academics and opinion-makers were discussing whether there
should be any constitutional revision at all and, if so, what would then be
subject to reform, how it would be carried out, when and for how long.
To no one's surprise, it was the leaders of the civic associations that took
the lead in the discussion. Led by the CNBB, the OAB, the ABI, the CUT
and the CGT, a current of opinion started to emerge in opposition to the
constitutional reform. Their opinion was that the existing legislature lacked
the electoral mandate to alter the constitution by a simple absolute majority,
instead of the normal three-fifths majority of the Senate and the Chamber
separately, and was thus short of legitimacy. Legal arguments were also
elaborated claiming that the revision had been intended exclusively to adapt
the charter to the outcome of the plebiscite. As the shift towards parliamentarism
had not been approved, the revision should not take place or be limited to
institutional adjustments of the presidential system. 32
186 The Making of the Constitution

Within Congress, all the parties on the left, with the exception of the
PCB/PPS (Popular Socialist Party), joined the anti-revision movement. Led
by the PT and the PDT, the left expressed its concern about the dangers of
the revision removing the 'social conquests', such as the life tenure of public
employees and the social security benefits that had been guaranteed under
the constitution. Another of its concerns was the dismantling of state
enterprises and the lifting of curbs on foreign capital.33 Five years earlier,
these parties had reluctantly agreed to endorse the document that they were
now strongly defending. In fact, during the final ratification of the new
constitution in 1988, the PT had opted to vote against the document because
of its 'essentially conservative, anti-democratic and anti-popular' character. 34
Now, the more unfavourable relation of ideological forces in Congress and
the pressures from the trade union movement, that viewed itself as the prime
victim of the revision, placed the left on the defending side. 35
Among the rest of the parties in Congress, there existed a broad consensus
of opinion on the urgent need to reform the constitution as it had been
scheduled and mandated in 1988. To overcome the resistance of the left, the
leaders of the PMDB and the PSDB (Party of the Brazilian Social Democracy)
made several attempts to arrange a compromise which would exclude the
section of the constitution on 'social rights' from the revision, and established
a minimum agenda of discussion. However, the parties on the right, led by
the PFL and the PDS/PPR (Popular Reformist Party) refused to compromise
on the question of the social rights as they considered that a number of
modifications were essential there, particularly on things like jobs for life
for the public employees, and the welfare and social security system, in order
to eliminate the inflationary elements of the constitution. 36
Almost everyone recognized the need to agree on a minimum agenda of
discussion if the revision was to succeed at all. But the idea, which would
allow attention to concentrate on the minimum necessary modifications, was
strong on intention but problematic on implementation. Instead, the leaders
of the largest parties concentrated on the easier task of negotiating matters
of procedural character. Here, two broad issues were considered: the timing
and the mechanism through which the reform would be processed. As to the
timing, a majority of the legislators agreed that the revision of the constitution
had to start on 6 October (exactly five years after its promulgation) and that
it should not be extended beyond 2 April, the established legal deadline to
leave government for those in executive posts who wanted to participate in
the forthoming elections. This would presumably prevent Congress from
making the reform under electoral influences.
The method through which the reform would be processed was a bit more
controversial. There existed the conviction among many congressmen that
 The New Democratic Order at Work 187

the experiences of 1987-88 had to be avoided. Instead of initiating in the

multiparty standing committees, this time the discussion should be initiated
within parties themselves in order to speed up the process and avoid delays.
But, following Brazil's legislative tradition, these questions, including the
dispute over who was to preside over the reform, were left to be sorted out
once the revision process had been put into motion.
A survey elaborated by Veja concluded that there were seven fundamental
issues of great relevance among academic and political circles. These included
the following: (i) The relationship between the Union, the states and the
municipal governments, which would look at the distribution of fiscal
revenues and responsibilities among the three levels of the federation. This,
together with the fiscal reform, would aim at easing the spending burden of
the federal government so that the budget could be controlled and balanced;
(ii) a broad reform of the tax system aiming at simplifying and improving
its capacity for collection and avoidance of evasion; (iii) a reform to the social
security system aiming at separating financially and administratively health,
pensions and social assistance. This included also the question of changing
the criteria for retirement eligibility, perhaps, to a formula combining age
and duration of work instead of the current age or duration criteria; (iv) the
end of the discrimination against foreign capital, particularly from the mining
sector; (v) the abolition of state monopolies in the oil and telecommunica-
tions sectors; (vi) the political-institutional reform which included the
discussion on the electoral system (perhaps a shift towards the German
model), the threshold for congressional representation of parties (perhaps
an increase to five per cent), the question of party fidelity, the redistribution
of seats within Congress among the states, the role of the senate, and the
length of the presidential mandate to make it coincide with the Congress,
among other issues; (vii) the life tenure of employees of the public sector.37

The Paralysis of the Process

On 29 September 1993, in the midst of a stormy session which led to the

police entering the chamber to restore order, the president of Congress read
the legislative initiative calling for the start of the revision on 6 October,
after an agreement of the leadership of the four largest parties- the PMDB,
PFL, PSDB and PPR.38 However, the revision was stopped in its tracks one
day before it was due to begin by an order of the Supreme Court. Without
consulting the rest of his Supreme Court colleagues, Judge Marco Aurelio
de Mello issued a preliminary order (liminar) on request of the PT, PDT,
PSB and the PCdoB to suspend the process on the grounds that the session
of Congress on the day of the reading had been opened without the necessary
188 The Making of the Constitution

quorum. After a moment of political confusion about the pertinence of the

judge's decision, the full Supreme Court convened and overturned the
decision by eight votes to one. The revision then began a few days later under
unpromising prospects. 39
Procedural negotiations were under way when Congress was shaken by
the revelations of corruption involving many of its members. Attention was
taken away from the revision as Congress moved to set up a parliamentary
commission of inquiry to investigate the case. 40 It was only unti118 November
that the resolution, which established the specific reform legislative procedure,
was finally passed. The resolution did not leave much room for optimism.
Instead of adopting provisions that would simplify the process and block
the obstructionist tactics of the minority anti-revision group, as envisioned
originally by the Nelson Jobim proposal, the opposite course of action was
adopted. 41
Some 17000 amendments were handed in to the reform's rapporteur,
Deputy Nelson Jobim, by mid-December. These included all sorts of basic
and secondary issues dealing with virtually all the articles of the constitution.
One month later, the floor deliberations started. Put into voting, Congress
decided to give priority to a group of government-sponsored amendments,
necessary for the implementation of the new economic stabilization plan.
These involved the retention of 15 per cent from the transfers made from
the federal government to states and municipalities to be put aside for an
'emergency social fund' .42
After endless negotiations, the amendments involving the creation of the
Fundo Social de Emergencia were finally passed in early February when
Finance Minister Fernando Henrique Cardoso appealed directly to the
electorate via television and threatened to leave office.
After the approval of the 'emergency social fund', the revision process
came to a standstill. The continuous lack of quorum and the obstructionist
tactics of the anti-revision bloc made it extremely unlikely that Congress
would be able to discuss and decide on the numerous issues of the agenda.
The deadline for the end of the revision was extended until the end of May
in the hope that a broad inter-party agreement would save the revision. But
despite desperate attempts on the part of rapporteur Jobim to arrange a
minimum agenda of discussion, neither side was seriously willing to
compromise, much less when the election was so close.
The anti-revision bloc agreed to participate only if some economic
questions, such as the abolition of states' monopolies and the restrictions on
foreign capital, were excluded from the agenda. The PFL and PPR leadership
replied that the constitutional revision without those issues was of no interest
to them: 'the minimum agenda without the area of the economic order is so
 The New Democratic Order at Work 189

minimal that the revision would be worthless' .43 An inter-party agreement

to save the revision depended on the PMDB and the PSDB. Both parties
agreed with the position of the PFL and the PPR, but did not want to go into
a confrontation with the left. Without any prospect of discussing the issues
of the economic area, the right virtually abandoned the revision. By mid-
April, the revision was practically dead, having discussed a few minor issues
on the political-institutional agenda.

CONCLUSION: THE UNSETTLED CONSTITUTIONAL DISCUSSION

At the end, the only truly significant decision was the creation of the
'emergency social fund'. But it was part of the transitory articles of the revision
and did not entail a permanent constitutional solution. It would only help
the federal government to plug holes until December 1995, but without a
permanently balanced distribution of revenues and responsibilities among
the three levels of the federation, the central government would be short of cash.
Congress decided also to shorten the length of the presidential mandate
to four years. This was intended to align the electoral calendar of the
presidential election with the congressional and state governors' elections,
presumably in order to encourage the formation of broad coalitions that ensure
governability. Other minor changes included the right for all Brazilian
citizens to have the possibility of holding dual nationality and the strengthening
of overseeing powers of Congress (all officials from the executive branch
and not just ministries could now be recalled). The constitutional discussion
will remain unsettled for some time.
The revision of the constitution was obstructed by the combination of a
number of factors. The impact of the crisis provoked by the corruption
scandal was a serious blow. The involvement of several of its most important
leaders weakened the ability of Congress to keep the process going. It also
affected the legitimacy of the institution as a whole, making it more vulnerable
to the interests of the anti-revision movement. Despite its numerical minority,
the anti-revision bloc in Congress displayed a formidable capacity to obstruct
the process. The forthcoming elections also played their part. Few congressmen
were willing to discuss controversial issues a few months before the election.
Finally, the weak position of the president did not help to advance the revision.
Conclusion

The fundamental concern of this work has been the analysis of the process
through which the new constitution was drafted with a view to assessing the
extent and the way to which it helped, or hindered, the full restoration and
consolidation of democratic politics in Brazil. The focus has been on the
formal workings and interplay of the political forces around the issue of the
constitutional renewal. This approach was chosen not only because of its
crucial importance in understanding the outcome of the Brazilian constitutional
renewal, but also because of what it could reveal about the nature of Brazilian
politics, and of what this, in turn, could reveal about the obstacles for
democratic consolidation.
This conclusion is divided into two parts. In the first part, I will evaluate
the extent and the way in which, on general balance, the constituent process,
specifically the drafting procedure, contributed to strengthen or weaken the
development of democratic politics. In the second part, I will discuss some
specific features of the constituent process in terms of what they reflect of
the dynamic forces and workings of Brazilian politics. These elements do
not constitute by any means all the valuable lessons which can be drawn
from the richness of the constitutional renewal process. They constitute only
basic contributions to the understanding of the complex experience of Brazil's
transition politics.

CONSTITUTION-MAKING AND DEMOCRATIC CONSOLIDATION

On the basis of my arguments in this book, the result of the constitution-

making process was, in large measure, a failure. Moreover, the constitutional
renewal was largely an unnecessary process. To begin with, the military had
chosen to maintain the basic institutional framework of democracy. Strict
controls were frequently imposed in order to distort the normal functioning
of the system, but a substantial movement towards the restoration of democratic
normalcy had already occurred both in legal and actual political terms. The
democratizing forces had already occupied important power positions within
the established institutional framework at the point of the demise of military
rule. Thus, the constitutional adjustment required for the full restoration of
democratic politics was only a matter of time. Sooner or later, it would have
been accomplished almost regardless of the proposal for a formal wholesale
constitutional renewal. Was this initiative inevitable?

190
 Conclusion 191

This work has argued that the initial decision to call upon a constituent
assembly was motivated by a set of factors of political character, rather than
by the objectives of institutional reform demanded by the imperatives of demo-
cratization. Brazil represents a typical case whose constitutional renewal was
proposed by those who had prospered under the previous constitutional
framework. The long-standing commitment of the PMDB and Brazil's own
political tradition first brought the issue into discussion. This proposal was
reinforced by another set of factors, which originated from the political
context in which the presidential election was processed. These included the
need to secure the unity of the opposition bloc for the indirect election as
well as the need to perform a symbolic political act to signify a break with
the past in the absence of an institutional rupture. This was, in turn, precipitated
by the denial of a direct presidential contest, on the part of the military regime,
in spite of the massive nationwide support for it.
There is no doubt that the process of constitutional renewal itself and the
text of the constitution contributed to advance, in some way, the growth of
democratic politics in Brazil. The extremely decentralized and participatory
character of the drafting mechanism encouraged the emergence of new
forms of organization and participation of society. The high level of political
mobilization of all sectors of society to participate directly in the legislative
process had no precedent in contemporary Brazilian history. Thus, in as much
as the political exercise helped to erode the traditional way of making politics
in the country, it helped the cause of democracy.
Also, the new document itself increased the formal mechanisms and scope
for participation and contestation, even by international standards. The
extension of the electoral suffrage to 16-year-olds, the unrestrained
constitutional guarantees on the freedom of the press and to form parties,
and the adoption of some mechanisms of direct democracy, are only a few
examples of this. The removal of legal and attitude constraints, which the
constitution-making helped to bring about, reinforced the democratizing
spirit. The free and highly competitive presidential election of 1989 confirmed
decisively the full restoration of democratic politics in Brazil. By the same
token, the independence and competence of the media triggered the impeaching
of Collor by constitutional means in 1992.
However, the constitutional renewal revealed more difficulties than it
helped to resolve, hence obstructing the way towards consolidation. The
manifestation of this has been the persistent state of uncertainty and instability.
The sources of this situation have been generated by two, albeit overlapping,
sets of factors. On the one hand, the inability or unwillingness, on the part
of the political leadership, to recognize the need to adopt procedural
mechanisms to discuss and decide constitutional matters which could
192 Conclusion

guarantee an outcome which is both coherent and consensual on a more

permanent basis. And, on the other hand, the growing lack of institutional
rationality which has seriously affected the govemability capacity of the system.
As this book has suggested, the method of constitutional elaboration
encouraged the expansion of the agenda of discussion to nearly unmanageable
proportions, and helped to disperse the debate and to boost public expectations.
At the same time, it proved oflittle efficacy in generating coherent proposals
and in fostering consensus. As we know, the immediate consequence was a
lengthier process and the eventual decision to admit a revision of the
constitutional text. This meant that the consensus was then temporary and
that the legitimacy gains, resulting from the method, were only short-lived.
The most surprising thing was that no better approach was chosen during
the failed constitutional revision, missing another opportunity to stabilize
the volatile political expectations.
Moreover, the institutional framework established by the new constitution
has proved incapable of delivering effective results, which might have helped
to solve the problems of legitimacy and stability. As this book has argued,
two of the main causes of this situation are the difficulties in forming stable
majorities, stemming from the lack of decisiveness in addressing key issues
such as those concerning the party system, and the excess of substantive
constitutional constraints on decision-making, which the new constitution
introduced.
In fact, the initial legitimacy considerations that led Tancredo Neves to
propose the constitutional renewal were not only linked to the popular desire
for the demise of the authoritarian regime and the adoption of procedural
democracy in itself. The restoration of democracy, particularly in the case
of Brazil, involved high demands for socioeconomic change. These demands
were clearly reflected in the overloaded agenda of reform embraced by
Neves. In this respect, the legitimacy of the newly emerging regime was going
to be strengthened in as much as the system managed to accomplish the desired
socioeconomic reforms. The constitutional renewal could be instrumental
only in helping to establish the conditions for the accomplishment of that
goal in the long term. Actual social reform could not be substituted with short-
lived legal promises.
However, the failure to differentiate substantive and procedural issues during
the constitutional renewal has blocked the capacity of the system to address
the pressing problems of social reform. In the longer-term, legitimacy and
stability depends on the performance of the democratic institutions and not
merely on the maintenance of democratic procedures. The idea that social
reform could be accomplished through constitutional renewal by introducing
concrete and specific provisions has proved self-defeating. Imposing detailed
 Conclusion 193

substantive constitutional limits on decision-making, particularly in the

context of a high level of fragmentation of political power, as in Brazil, hinders
the production of output of the system, which in tum affects the legitimacy
of the newly democratic regime. Clearly, a detailed and rigid constitution
in a rapidly changing world can obstruct rather than consolidate democracy.
The aftermath of the constituent process showed the necessity to separate
as far as possible procedural and substantive issues in framing a constitution.
The gains from the constitutional renewal appeared to be then largely
overshadowed by the problems it generated. Thus, for instance, the expansion
of the formal means of political expression had to be assessed in relation
with the widening gap between these and the constraints placed on the
citizen's ability to participate by socioeconomic factors. And in this respect,
the new constitution contributed little in helping to close the gap in general.
The economic difficulties of the country existed before the elaboration of
the new constitution, but it rendered additional obstacles to economic
stabilization and growth resumption. The question of whether the population
as a whole would benefit from the expansion of the formal means of political
expression remains more uncertain. At least in the short term, even in the
absence of those improvements, Brazilian democracy would not have been
worse than it was after the constitutional renewal. The effective integration
of the population to the democratic process under the current conditions of
Brazil seems largely to depend less on the expansion of the formal mechanism
for participation than on the real empowering of the citizens. If, on general
balance, the constitutional renewal did not bring about significant
improvements, what was the benefit of it? This book has suggested that certain
social and political interests might have benefited from the constitutional
renewal. However, it would be hard to argue that it contributed substantially
to the improvement of the living standards of the population as a whole. Much
less did it contribute to altering the overall structure of power of Brazilian
society, as argued by the left. True, the left claimed that only a popular and
independent assembly rather than a congressional assembly would be
successful. But there are no grounds for believing that an independent
assembly would be much more successful in curbing the influence of those
with economic power.
In sum, over the five-year period since the promulgation of the new
constitution, the performance of the new institutional framework made the
prospects for consolidation increasingly less promising. Instead of having
established the basis for consolidation, by the end of 1993, the new constitution
appeared to have multiplied the obstacles to consolidation.
Moreover, the system has not only proved incapable of delivering the desired
results to address the questions of the socioeconomic democratization, but
194 Conclusion

also proved incapable of reforming itself. The incapacity to generate output

and the fragmentation of political power have tended to reinforce each other
in a vicious circle that appears extremely difficult to break. The more the
system fails to deliver the desired outcome, the more the fragmented forces
lose confidence needed to repair the system. This in tum helps only to
reproduce the inefficacy of the system, which then perpetuates the constitutional
discussion.

CONSTITUTION-MAKING AND mE POLITICAL SYSTEM

Democratically drafted constitutions can be viewed as an expression of the

dominant political views and priorities of a society at a particular moment
of its historical development. From this perspective, the 1988 Constitution
clearly reflected a pervasive reaction against the previous authoritarian
regime and the glaring socioeconomic inequalities of Brazilian society. The
signs of rejection of the authoritarian past were manifested even in the
character of the drafting mechanism itself, which showed a sharp contrast
with the form in which the constitution was handed down from the military
twenty years earlier. Suspicious of any kind of 'elite' manipulation, the
Constituent Assembly refused any type of preliminary blueprint and set off
deliberating from scratch in a unprecedented decentralized and
participatory manner.
A symbolic sign of the anti-authoritarian hallmark of the process was the
inclusion of the chapter on the individual and collective rights and guarantees
in the first part of the constitutional document, instead of putting it at the
end as in all the previous constitutional texts. But the most obvious evidence
of this anti-authoritarian response was the effort to dismantle the powers of
the 'imperial' presidency, which, in the view of the Constituent Congress,
was the very source of the authoritarian character of the system. Other
elements, such as the reluctance to accept minimal controls on the party and
electoral system and the adoption of some mechanisms of direct democracy,
for the first time in the political history of the country, were also part of the
anti-authoritarian moving spirit.
The revulsion against socioeconomic inequalities was strongly imprinted
in the numerous provisions dealing with social and economic rights. The
ideal of a more equal society is a central concern in the constitution. In fact,
the conception of democracy in the view of most of its framers had to be
substantive as well as procedural. However, the declaratory character of most
of those provisions reflects the difficulties in translating them into reality.
Our case study on the issue of land reform has shown how serious and
 Conclusion 195

problematic this question is. The concern for social equity is bound to
continue to play a crucial role in Brazilian politics for many decades to come.
The unrestrained aspirations for political freedom and democracy have
generated a new set of problems which became apparent two years after the
promulgation of the constitution. The formidable dispersion of political
power gave rise to an extremely weak political structure incapable of
governance. Thus, within a very short time-span, the quest for political
freedom was replaced by a cry for institutional rationality and stability. The
difficulty in balancing democracy and govemability represents the new
constitutional challenge, which the constitutional revision attempted to address.
The mechanism through which the new constitution was drafted differed
from the normal legislative process, but it was illustrative of the workings
of Congress and its capacity to organize itself for action. The most striking
feature was the inability of its political parties to formulate proposals and
organize themselves for efficient decision-making. As mentioned before, no
major political party was able to formulate proposals. With the exception of
all the small leftist parties, such as the PT, PC, PSB and PDT, party unity
and discipline in voting behaviour was weak. Our two case studies have shown
that this was especially true for the PMDB and to a lesser degree for the PFL
and the small rightist parties. Seldom, if at all, did the PMDB or the PFL
make one single constitutional decision based on 100 per cent party support
in the whole process.
The role of the party leadership was largely confined to the arrangement
of procedural agreements: for example, the control over committee and
subcommittee assignments and the organization of the order of voting. On
substantive matters, they could hardly exercise any influence, if at all. Party
leaders had virtually no power of discipline. Apart from the small leftist parties
with strong party loyalty, voting behaviour was the result of a web of external
pressures acting upon congressmen. Our two case studies suggested that the
most important factors in influencing congressmen's voting behaviour were
the presidency of the Republic, the state governors, and the pressures from
public opinion, the electorate, and interest groups. Congressmen were
especially sensitive to the electorate's perception of their individual
performances.
The lack of unity and discipline among the major parties made the formation
of inter-party coalitions unworkable. However, loose ideological coalitions
across party lines were informally created. Our case study on the land reform
issue has shown how the assembly was clearly divided into two ideological
camps cutting across political parties. But these coalitions were not by any
means consistent and stable. They had to be shaped, and reshaped, according
to the issue at hand, involving re-alignments article by article and sometimes
196 Conclusion

word by word. The victorious coalition in the case of the system of government
included elements from the right and the left, while the coalition, which decided
the issue of land reform, showed a clear alignment along the right-left
division, with the PMDB showing obviously the most severely split vote.
The efforts of the presidency of the Republic in shaping the process were
not very successful either. The precarious political position of Sarney himself
did not help in this effort. But, relative to the rest of the political actors, the
president proved to be the only actor with sufficient power to influence the
Constituent Congress. On the two decisions of most interest to President Sarney,
the system of government and the length of his mandate, he managed to
mobilize enough resources to swing the vote of congressmen in his favour.
The means he resorted to in persuading Congress were hardly the most
democratic, but they revealed most clearly the nature of the relationship between
the presidency and Congress. He made direct appeals to the electorate over
the heads of congressmen, used subtle threats of military intervention and
made a scandalous show of clientelism by distributing spoils and ministerial
portfolios to crucial governors and congressmen.
The new constitution strengthened the powers of Congress, while
simultaneously reducing those of the executive. But, the post-constitution-
making period showed that it required more than simple legal provisions to
exercise such powers in a responsible manner. Its ability to articulate initiatives
and structure decision-making had been used mostly to oppose. The balance
of power between the two branches of government has remained unsettled.
Congress managed to oust President Collor from the presidency. But, at the
same time, it was only the executive that managed to force Congress to approve
the amendments of its interest during the constitutional revision. Without
the necessary changes to facilitate the formation of a more stable and
responsible party system, it is difficult to imagine a more efficient performance
of Congress.
The weakness of political parties had its counterpart in the aggressive role
played by organized interest groups in shaping the decisions of Congress.
The process of constitutional renewal displayed the enormous strength and
complexity of Brazil's civil society. A wide range of organized interest
groups and professional lobbies of all imaginable variations mobilized to
press the Constituent Congress. Among these, the movement for popular
participation which managed to persuade Congress to provide direct access
to the constitutional deliberations, through the popular amendments, as well
as the incorporation of some direct forms of participation in the constitutional
text itself. In their attempts to influence the decision-making, these groups
showed a high level of organizational sophistication, using all types of
available methods: direct influence in the selection of candidates responsive
 Conclusion 197

to their demands, the use of all forms of media communication, as well as

more direct methods, such as rallies and demonstrations.
In part, the difficulties of the process of constitutional renewal stemmed
from the apparent gap in organizational capabilities between civil society
and political society. The presence of a wide variety of organized groups
expressed the high level of differentiation and complexity of Brazilian
society, which has not been matched at the political level.
This situation reflects a paradox. The strength and complexity of Brazil's
civil society, including the competent role played by the media, offers the
chance to establish a more vigorous democratic system than ever before. At
the same time, the political and economic challenges seem now to be greater
than at any other moment. The task of introducing balance and coherence
to the system will require continuous skilful and effective political effort.
In this sense, there are many lessons to be learned about the process of
constitution-making in Brazil, and if some of them are positive lessons,
most, unfortunately, are negative ones.

A POSTSCRIPT ON THE CONSTITUTIONAL REFORM

PROCESS OF 1995

With the assumption of Fernando Henrique Cardoso to the presidency of

the Republic on 1 January 1995, the debate over the constitutional reform
gained new impetus. During his electoral campaign as a presidential candidate
he promised to promote the necessary constitutional reforms to ensure the
long-term success of the anti-inflation plan and the modernization of the
economy and the state apparatus. His electoral manifesto opened by questioning
the validity of the state-led development tradition and praising many of the
free-market-style reforms which fashioned the set of constitutional changes
first proposed by Collor back in 1991. But in fact, the question of the
constitutional reform was embraced in one way or another by virtually all
presidential contenders, including Cardoso's main electoral rival.
By the time the Chamber of Deputies went into its July recess, the
government of President Cardoso had managed to persuade its members to
pass a set of constitutional amendments which integrated the first package
of constitutional changes submitted by his government during the second
half of February. At the time of writing, the reform proposals were being
examined by the senate where the voting process was expected to be completed
without much difficulty over the following weeks. Unlike the amending rules
of the failed 1993 constitutional revision, the changes to the constitution had
198 Conclusion

now to be processed through the normal amending procedure which requires

a three-fifths (60 per cent) majority vote of each house separately.
In general terms, the constitutional alterations of this package were directed
at removing a series of constitutional barriers to the participation of private
and foreign capital in specific sectors of the economy. In other words, they
sought to eliminate the most salient nationalistic and statist elements of the
constitution to support the free-market-style policies which are being pursued
by the new government. The priority given to these issues of economic
character resulted from the government's strategic decision to initiate the
reform process with those questions which were perceived to be less
controversial and to enjoy a broader basis of consensus.
The specific content of the reform package involved five distinctive issues
which implied in some cases the modification of more than one article of
the constitution. The first one altered a specific provision of article 25 which
granted exclusivity in the distribution of piped gas to state companies at state
level. The introduction of the amendment will help to open the way for the
participation of private firms in the sector. The second one modified article
178 in order to eliminate the legal constraints to the participation of foreign
companies in coastal shipping, restricted until then to national firms.
The third amendment abolished article 171 and modified a few more in
order to extinguish the conceptual distinction between Brazilian-owned
companies and foreign-owned ones, and to eliminate the privileges granted
constitutionally to the former in certain areas of the economy. By the 1988
Constitution, foreign companies, considered as such to be those whose
majority stakes were controlled by non-residents, even if they were registered
in the country, were barred from the mining and hydro-power sector while
national firms were granted priority in government contracts. The amendment
scrapped the preferential treatment and opened the way to foreign investment
in the mining sector.
The forth amendment introduced some changes to article 21 in order to
eliminate the provisions which granted state firms the monopoly in the
telecommunications sector. This was considered the most important
amendment of the package because of the potential of the sector to attract
massive foreign investment. The last amendment promoted modifications
to article 177 which will help to eliminate the monopoly in the oil sector of
the state-owned Petrobras which dates back to 1953. With this reform,
private capital, national or foreign, could now participate in all kinds of activities
in the sector from exploration, extracting, refining and transport, to the
import and export of oil. The retailing area was not originally under the control
of the state monopoly.
 Conclusion 199

In principle, the government could now resort to the existing law on

public concessions to end in practice the public sector monopolies. But some
time might still be needed until new laws to be approved by Congress
establish the regulations under which private and public capital will operate
in each sector. Provisions were taken to make sure that the executive could
not use the powers of the provisional measure to decree such regulations
and there remains some legal ambiguity as to the sequence of the process.
At the time of writing, a second package of constitutional reforms was
already under consideration in the Chamber of Deputies. The reform proposals
of this package involve the modification of a number of different articles
related also to a series of long-debated issues concerning the modernization
of the state. These include the reform of the tax system, the related question
regarding the distribution of tax revenues and responsibilities among the three
levels of government, the reform of the social security system, and that of
public administration. There are many non-constitutional changes implied
in this set of modernization objectives. But the few of a constitutional nature,
upon which a large part of the success of the modernization programme will
depend, are not expected to find easy acceptance. Unlike the previous set of
amendments, this new set seems to affect more directly even more powerful
vested interests.
The most critical question concerning the administrative reform is the
removal of the provision which guarantees the job-for-life security for public
employees. The number of public employees is considered too excessive to
allow any considerable improvement in the efficiency of the public service
and the long-term balance of the public purse. 1 The Public Employees Union,
linked to the CUT, has already made clear its intention to oppose such a
proposal. However, several factors seem to be playing in favour of the
reform. First, the defeat of the oil strikers in June which has weakened the
public reputation of unions and, particularly, of the CUT. Second, the virtual
bankruptcy of many states and municipalities in urgent need of trimming
their payrolls. And third, the content of the amendment that the government
is proposing. To avoid fuelling resistance, the government is proposing to
maintain the job-for-life security provision while adding new text to make
it subject to the employee's good performance. This naturally will open a
window for future dismissals.
The reform of the social security system involves two principal constitutional
alterations. The first one affects the provision which allows retirement
according to length of service instead of at a minimum age. By article 202
of the 1988 Constitution, men need only 35 years' service and women 30,
to retire on full pay. Other professional categories, such as teachers, qualify
with even shorter service. This has meant full pensions for many able-bodied
200 Conclusion

people in their early fifties and, in consequence, the growing structural

imbalance between the active contributing insured and the passive benefit-
receiving insured.
The reform is intended to introduce some kind of rationality in the relation
between active and passive insured that can allow a long-term balanced budget
of the system, currently heading into the red. The main pressure against this
alteration will come from those privileged groups that profit most from this
scheme and who are typically the better informed and the most influential
in shaping public opinion. The other important modification in this regard
is related to the provision which ensures that any increase in the minimum
wage is automatically extended to pension benefits across the board. Without
the introduction of some kind of flexibility that alters the link, this provision
will continue to have a direct and significant impact upon the finances of
the sector. The major pressure for this alteration will come from the nearly
three-quarters' majority of those 16 million insured that draw out an amount
no bigger than one minimum wage.
The reform of the tax system also involves several changes to the
constitution. The general objective is to simplify the confusing existing
system in such a way as to distribute the tax burden in a fairer way as well
as to improve the collection and payment control capacity of the state.lt also
aims at establishing clear boundaries regarding the levying powers of each
of the three layers of the federation. In close connection to this question stands
the issue of the distribution of federal tax revenues and responsibilities
among the Union, the states and the municipal governments. The perception
is that the 1988 Constitution introduced a severe distribution of federal tax
money without establishing a proportional transference of public responsi-
bilities to states and municipalities. This, it is believed, has undermined the
efficiency of the public services and imposed rigid constraints for the
equilibrium of public finances.
These last two issues seem to be the most difficult of all. The unavoidable
trade-offs implied in the reform involve two sets of powerful interests: the
taxpayers, on the one hand, and the state governors and local authorities, on
the other, who will find it difficult to give up any portion of their scant resources.
The tax system will probably be simplified and a new share-out of revenues
and responsibilities among the three layers of government will be fashioned,
but a radical overhaul will be difficult to achieve.
The reform of the political-institutional arrangement, such as to the
electoral and the party system, might also be finally addressed, but it will
most probably involve moderate rather than radical reform.
Finally, why is it only now that the reform of the constitution is taking
shape after all the failed attempts at its reform since its promulgation? There
 Conclusion 201

are a number of features in the current political situation of Brazil which

have combined now in a positive way to favour reform.
The first concerns the legitimacy level of the executive. Fernando Henrique
Cardoso was elected president with 54 per cent of the vote in the first round,
representing double the share of his closest rival and much more than the
28 per cent of the vote won by Collor in the first round of the 1989 election.
Collor won over 50 per cent in the second round due only to the logic
imposed by the round-off system. At the same time, I tamar Franco from the
very beginning lacked the kind of legitimacy which only the ballot-box can
provide. The unusual support given to President Cardoso was interpreted as
a clear mandate to carry out the reform promises of his campaign.
Another important feature is the unusual combination of skilful and
experienced leadership in both the executive and the legislative branches of
government. Before becoming president, Fernando Henrique Cardoso had
already spent ten years of his life in the Senate and had occupied the Foreign
Affairs and Finance portfolios, not to mention his worldwide reputation as
an academic. In sharp contrast to previous administrations, his team is also
rated as one of the most qualified in recent contemporary history.
In the Chamber of Deputies, the leadership of Luis Eduardo Magalhiies,
son of the three-times governor of Bahia, Antonio Carlos Magalhaes, but
owner of a political talent of his own, combines skill and experience with a
clear commitment to constitutional change. In the Senate, the presence of
former president Jose Sarney represents also a competent element in the
complicated task of scrabbling around to construct majorities and promote
the reforms. He is now given the opportunity to correct the defects of the
constitution that he fiercely denounced while president.
There also appears to be a clear ideological shift which seems more
evident now at various levels of the system. At the level of the party system,
the coalition PSDB-PFL-PTB to elect Fernando Henrique Cardoso showed
how much the centre-left parties, such as the PSDB and the PMDB, had become
closer to the PFL. Despite rhetoric to the contrary, the two parties which led
the opposition to the constitutional revision in 1993, the PT and the PDT,
appear also to have undergone a significant ideological shift. At the cabinet
level, the language of the orthodoxy is now far more solid than it was two
or three years ago.
Another important feature is the virtual bankruptcy of most of the state
governments and the fragile financial situation of the federal government.
The state of Sao Paulo alone has accumulated a debt of some 36 million dollars
which will require for its resolution the implementation of many of the
constitutional reforms which are now under discussion.
202 Conclusion

Not without importance has been the success of the anti-inflation plan.
On 1 July, when the real, the currency which accompanied the anti-inflation
plan, turned one year old, the plan seemed to be a huge success. In the twelve
months since its implementation, the real and accompanying measures have
brought fierce growth, a flood of new investment, new jobs and a considerable
fall in unemployment. Most significant, the rate of inflation has dropped from
nearly 1000 per cent a year to less than 30 per cent.
Perhaps another crucial element in the reformist impetus has been the
apparent defeat of the labour movement which had represented, until the failure
of the CUT-led strike of the oil workers, the most powerful organized group
against the reforms.
Finally, one last question concerns the absence of any kind of electoral
pressure. With the exception oflocal authorities, all the levels of government
had been renewed at the beginning of the year, and no election appeared on
the near horizon. This kind of pressure, together with the corruption scandals,
was one of the major obstacles to the revision in 1993-94. Local elections
are scheduled for October 1996. This might represent the most important
obstacle to the conclusion of the current reform process, particularly when
the remaining issues seem of crucial significance to large sectors of the
electorate. Congressmen may be hesitant to approve any new reform if the
process extends beyond the beginning of the first ordinary session of Congress
in February 1996.
Notes

INTRODUCTION

I. Some interesting discussions about the conceptual implications of the notion of

constitution can be found in Bodganor (1988: 1-12); Sartori (1962) and McWhinney
(1981).
2. See Elster and Slagstad, (eds) (1988).
3. See, for instance, O'Donnell and Schmitter (1986) and O'Donnell et al. (1986);
Diamond et al. ( 1989); Huntington ( 1989) and Burton et al. ( 1992).
4. Przeworski (1988:64). His work on democratic transition represents one of the
first major contributions to the theoretical analysis of democratization. See also
Przeworski ( 1986).
5. Bogdanor (1988:2-3).
6. Of course, the role that the historical-structural constraints play in allowing the
materialization of such agreements has been also raised. On this issue, see
Cammack (1990).
7. See O'Donnell and Schmitter (1986:39).
8. See Burton et al. (1992:3,17-18).
9. On the question of consolidation, see, for instance, Whitehead (1989).
I 0. The tension between politics and economics in relation to the process of
consolidation is examined in Lamounier (1989b).
11. See Banting and Simeon, (eds) (1985).
12. Ibid.

I. THE CONSTITUTION UNDER MILITARY RULE: GOVERNMENT

AND OPPOSITION

I. Focusing particularly on the 1964-84 period, a historical review of the 'institutional

engineering' of independent Brazil is made in Fleischer ( 1986b).
2. An examination of military rule in Brazil from the perspective of the legal and
institutional evolution is made by Alves (1985).
3. See Kinzo (1988a:121).
4. On the Brazilian doctrine of national security refer to chapter one in Alves ( 1985)
and chapter 8 in Stepan (1971).
5. See Skidmore (1973:44).
6. During the post-1945 period, the military had played an important role in
securing the maintenance of the general rules of the political game which was
referred to as the moderator role of the military. An analysis of the role of the
military in politics up to 1968 is made in Stepan (1971).
7. A general historical account of the period of military rule is found in Skidmore
(1988).
8. Included among the main measures were the suspension of the legal guarantees
ofjob security for six months for all public employees without the right of appeal,
the establishment of special inquiries to individual or collective actors who were

203
204 Notes

considered to have committed a crime 'against the state, its property and the
political and social order' not precluding juridical consideration, and the
cancellation of electoral mandates as well as political rights for ten years at all
levels of government. The complete Institutional Acts are reproduced in Paes
and Bonavides (1990:770-91 ).
9. For instance, the constitutional amendment of July 1964, which postponed
presidential elections, included also a provision requiring an absolute majority
of the popular vote to elect the president (the amendment extended Castelo Branco's
term of office for 14 months until March 1967). In early 1965 Congress also
passed a bill introducing a new code for party organization which was supposed
to strengthen the existing political parties.
10. This act also granted the executive the power to decree congressional recesses
during which the president would be authorized to legislate in all matters.
11. This mechanism is the opposite of the so-called 'pocket veto' in the American
system.
12. In addition to the previous act, this one also abolished habeas corpus for all cases
of political crimes against national security.
13. This presumably would give some advantage to the pro-government party in
the most backward states of the North and Northeast where illiteracy was high.
14. Purges conducted between 1964 and 1979 in all the three levels of the federation
is provided by Alves (1985:98).
15. The head of the SNI was given ministerial status and enjoyed considerable powers.
Presidents Medici and Figueiredo held this post before being nominated for the
presidency.
16. The role of Congress under the military is discussed in Baaklini ( 1992); Pereira
(1991) and Packenham (1990).
17. See Santos (1986).
18. A more detailed analysis of the performance of the National Congress and its
component parts is found in Baaklini ( 1992).
19. In the data presented by Baaklini (1992) the breakdown of initiatives by house
of origin shows that the Senate, with fewer members, introduced fewer bills than
its largest counterpart, the Chamber. However, he does not present a breakdown
of initiatives by party of origin.
20. This committee was integrated by 45 deputies and 15 senators selected annually
by each house. The committee met as a whole for 90 days to review the budget
but each house voted separately.
21. See Baaklini (1992:139-44).
22. The most complete analysis of political parties under the compulsory two-party
system, from the perspective of the opposition MDB, was made by Kinzo
(1988a). A broader historical perspective on the evolution of the party system
in Brazil is found in Lamounier and Meneguello (1986).
23. The calculation of this distortion is reported in Veja, Sao Paulo, 5 September
1990.
24. There is a discussion on the electoral trends by party, region and urban areas
during the two-party system in Kinzo (1988a:55-75).
25. Stepan (1988:36-7). The author also provides an interesting account of Geisel
and Golbery's perceptions and motivations for liberalization, ibid., chapter 3.
26. In fact, some other authors such as Maria Helena Moreira Alves considered both
Geisel's and Figueiredo's liberalizing measures not as a steps of transition to
 Notes 205

democracy but rather as further moves towards the institutionalization of the

national security state. Alves (1985:139-251).
27. Attempts to establish a distinction between these two concepts have been made
in the literature on democratization. However, in the empirical world such
distinctions are not always very clear. Basically, the distinction lies in the
extension of the objective. Liberalization entails a process by which the
authoritarian incumbents introduce some basic individual and group guarantees
(habeas corpus; freedom of movement, speech, association, and so on) without
allowing any effective access to office or public decisions. Democratization
involves a wider process which requires an effective right and possibility for
all to win control of the government and influence the collective choices. Stepan
seems to suggest more explicitly that the latter necessarily requires an active
and open contestation to come about. The basic sources on this point are Stepan
(1988), Przeworski (1988), and O'Donnell and Schmitter (1986).
28. His analysis of this question is found in three main works: Lamounier ( 1984),
(1985) and (l989a). For a longer perspective on the development of Brazilian
democracy, see also Lamounier (1989b).
29. In fact, looking at the Brazilian political context in 1973, influential scholars
such as Stepan, Skidmore, Schmitter and Cardoso, saw no significant opposition
which could become a real factor for liberalization in the short term. See Stepan
(ed.) (1973).
30. See Stepan (1986).
31. Particularly important is the fact that the liberalization process was initiated right
after the end of the Brazilian 'economic miracle'. Sustaining high rates of
economic growth became clearly impossible, particularly after 1981, when
Brazil plunged into recession with high inflation, aggravating the persistent problem
of income inequality and, therefore, the social tensions. The literature on the
process of democratization from a variety of perspectives is already vast. Some
references are included in the bibliographical section of this book.
32. Packenham ( 1986) has examined the revalorization of the formal institutions of
liberal democracy among the intellectual left.
33. During the Geisel administration, there had already been an election for state
governors in October 1974. But the previous administration had managed to make
them indirect once more. Not surprisingly, the official party, ARENA, swept
that election.
34. An analysis of the impact of elections upon Congress for the whole liberalization
period is found in Fleischer ( l986a).
35. After 1974, the electoral calendar included direct elections for the three legislative
bodies in 1978 and 1982. In 1976, municipal elections for local councils and
mayors; in 1978 indirect presidential election; in 1980, municipal elections
(actually postponed untill982); in 1982, direct election for state governors plus
the suspended municipal elections; in 1985, indirect presidential election.
36. These senators were nicknamed 'bionic' and were regarded as illegitimate by
public opinion.
37. The debate about the party reform is introduced by Kinzo (1980).
38. The formation of the PT is examined in Meneguello (1989). A more complete
study is elaborated by Keck (1992).
39. The bill was in fact passed by the decurso de prazo mechanism secured by the
lack of quorum of the pro-government majority.
206 Notes

40. In September 1980, the municipal elections (mayors and councillors) due at the
end of that year had been postponed until 1982. Elections for state governors
were to be held directly for the first time since 1965. As to the rest of the levels,
one-third of the Senate was to be renewed, the entire Chamber of Deputies and
all states' legislatures.
41. In fact, some scholars argue that the democratization process in the strict sense
began only after 1982, when the effects of the massive 1978-79 strike movement,
the acceleration of the economic crisis and the withdrawal of support of the business
community, initiated with the 1974 campaign against state intervention, finally
started to break up the socioeconomic basis of the ruling coalition. See, for instance,
Bresser Pereira (1985).
42. A journalistic description of the events leading to the formation of the Democratic
Alliance is found in Dimenstein, et al. ( 1985).
43. See Kinzo (1988a:132).
44. See Kinzo (1988a:l93).
45. See Monclaire and de Barros (1988:10-11).
46. Partido do Movimento Democnitico Brasileiro (PMDB) Revista do PMDB no.
4, October-November 1982.
47. Speech in support of the diretas-ja delivered in the Chamber of Deputies on 24
Aprill984. Revista do PMDB no. 7, p. 7.
48. Interview with Deputy Ulysses Guimaraes on 9 June 1992, Brasilia, D.F.
49. Excerpts of Tancredo Neves campaign declarations are found in Digesto
Econ6mico, July/August 1985 no. 313.
50. Interview with Senator Mario Covas on 10 December 1992, Brasilia, D.F.
51. See Bicudo (1986: 187).
52. Interview with Senator Marco Maciel on 8 June 1992, Brasilia, D.F.
53. See Monclaire and de Barros (1988: 11-12).
54. In Gonzalez et al. ( 1991 :7).
55. The case for a full constitutional renewal for symbolic purposes was not
uncommon at the beginning of 1985. For instance, OAB President in Sao Paulo,
Marcio Thomaz Bastos, argued that 'the most serious problem with the 1967~9
constitution lies in its sin of origin'. 0 Estado deS. Paulo, 30 January 1985.

2 THE DEMOCRATIC ALLIANCE COALITION AND THE PROCESS

OF REFORM

1. The manifesto of the Democratic Alliance is reproduced in Dimenstein et al.

(1985: 2~).
2. See Arruda Sampaio Junior and Affonso (1986:61-2).
3. See Jaguaribe (1985:40-1).
4. See Keck (1992:34-5).
5. A series of interviews with some of Brazil's most prominent intellectuals and
political figures in the first half of 1985 reflected the degree of difficulty in
establishing a consensus regarding the order of priorities for the New Republic.
Four of them favoured economic questions, particularly inflation, as the national
priority. Another four saw the institutional reorganization as the basic national
 Notes 207

priority. The series of interviews were published by 0 Estado deS. Paulo and
reproduced in book-form in Dantas Mota (1985).
6. A specific description and analysis of the Brazilian economy on the eve of the
New Republic's inauguration and its first year is found in Arruda Sampaio Junior
and Affonso ( 1986).For a broader perspective see Fish1ow and Cardoso ( 1990).
7. See Arruda Sampaio Junior and Affonso (1986:62-3).
8. This was, for instance, the interpretation of Jaguaribe (1985:42) among others.
9. See Lamounier (l989b:l34).
lO. See Michiles et al. (1989:23).
11. Professor Bolfvar Lamounier had already been informed that he would be
nominated for such a commission. Interview with Bolfvar Lamounier, Sao
Paulo, 14 September 1993.
12. Weffort, a member of the national executive committee of the Workers' Party
(PT) and one of the left's major social theorists, argued for an abandonment of
the view of political democracy as a bourgeois system. See Weffort (1984).
13. See Fleischer (1990:223).
14. For details on the electoral performance of the PMDB refer to Chapter 1.
15. See Fleischer (1990:222-4).
16. This kind of view is held by a number of different authors such as Schneider
( 1986:228) and Lamounier ( 1989c:46-7). A critical view is held by Sallum Junior
(1988: 127).
17. One of the elements of the agreement with the military involved presumably an
assurance that Neves would not allow an independent and autonomous constituent
assembly to draw up the new constitution. See Fleischer (1990:221). In July
1984,/sto Epublished the terms of another unofficial deal with Vice-president
Aureliano Chaves. By the terms of the so-called Acordo Mineiro, Neves agreed
not to make criticisms to the 'revolution' or the Figueiredo administration, to
accept a member of the dissident group as his running mate and make an
equitable distribution of administrative posts in the coming administration. See
/sto E 18 July 1984.
18. Because of the considerations following in the next section, perhaps to a lesser
degree it is presupposed by Bruneau. See Bruneau (1992).
19. Folha deS. Paulo, 22 Aprill985.
20. Interview with Ulysses Guimaraes, Brasilia, 9 June 1992.
21. See Skidmore ( 1988:257--60).
22. Folha deS. Paulo, 22 April1985.
23. For an interpretation of the process by which the presidency tried to recapture
its power capacity, see Sallum Junior (1988). His main argument is that the
weakening of the presidency had less to do with the incumbent than with the
erosion of financial capacity of the Brazilian state, which started in the 1970s.
This condition of the state, according to him, imposed restrictions on its ability
to continue its role in economic development and limited the material rewards
needed to 'purchase' the loyalty of potential supporters.
24. See Fleischer (l986a: Ill).
25. According to a number of accounts, Samey, as Tancredo himself, had the
intention to postpone any elections for mayors in order to avoid an early electoral
confrontation between the PMDB and the PFL which would damage the
Democratic Alliance. See, for instance, Noblat (1990:18).
26. Folha deS. Paulo, 14 January 1986.
208 Notes

27. See Noblat (1990:44).

28. Ibid. (48-9).
29. Veja, 5 March 1986.
30. There are many studies of the Cruzado Plan both from the political and the
economic perspectives. See, for instance, Flynn (1986); Sola (1988); Baer and
Beckerman (1989).
31. See Noblat (1990:52).
32. Folha deS. Paulo, 21 April 1986.
33. See Fleischer (1990:223).
34. Veja, 15 May 1985.
35. Ibid.
36. 'No more subservience' and 'the legislative power has to learn to be independent'
were two phrases which captured the prevalent attitude towards the executive
and the past of many congressmen. See Veja, 15 May 1985, p. 25. For an
analysis of the mayoral election in Sao Paulo, see Lamounier (ed.) (1986b).
37. Lamounier (1989c) and ( 1986a). Like him, many other analysts believe that this
law would make the establishment of a new structure more difficult in the future
as newly generated interests would have to be overcome.
38. See Cardoso (1986b:99).
39. See Fleischer (1990:221).
40. Refer to Lamounier (1987b).
41. For more details on the characteristics of this movement, see Chapter 3.
42. See Bruneau (1992:268-9).
43. Refer to Faoro (1986b).
44. See Riedel (1987:74).
45. Congresso Nacional, Diario do Congresso Nacional, Brasilia, November 1985.
46. For a self-defence of his proposal see Bierrenbach ( 1986).
47. Ex-Minister of Finance Mario Henrique Simonsen referred to the project as a
'treatise of anti-economics'. Veja, 24 September 1986.
48. The argument was that sending the project would be 'an undue intervention of
the executive in the legislative'. Veja, 24 September 1986, p. 55.
49. According to Lamounier, at some point the list consisted of nearly one thousand
elements. Interview with Bolfvar Lamounier, Sao Paulo, 14 September 1993.
50. Veja, 24 September 1986.

3 POLITICAL PARTIES, INTEREST GROUPS AND CONSTI-

TUTIONAL ISSUES

I. In fact, electoral practices seemed to have been more institutionalized than

political parties. Useful material on this matter is found in Lamounier and
Meneguello (1986), Kinzo (1988b).
2. Doubts existed about the ability of the pre-New Republic arrangement for
survival once the structure imposed by the authoritarian rulers was lifted. The
speed with which politicians started to move from one party to another and the
creation of new party labels added more doubts about the disintegration of the
party structure. This point is illustrated in /sto E, 8 April 1986 and 6 May 1986.
 Notes 209

3. The federal district and the two newly created states of Amapa and Roraima
were not to elect a governor.
4. The PMDB won 19 out of 25 mayorships of city capitals, which were up for
election in 1985, but it lost in the most critical ones, such as Sao Paulo, Rio,
Recife, and so on.
5. Anglade ( 1987) reports on the results and the political climate of these elections.
6. The recommendations of the PMDB National Convention of 1986 repeated the
traditional promises of the party on a magnified scale. See Partido do Movimento
Democratico Brasileiro, Revista do PMDB, April, 1987. The project of the PT
prepared by the prestigious jurist Fabio Konder Comparato, did not proscribe
private initiative, but placed the state at the centre of economic activities. See,
for details, Comparato ( 1987).
7. The analysis of the campaign in Sao Paulo is found in Bucalem Ferrari and Da
Costa ( 1989). A flavour of the political climate surrounding the election can be
obtained from Saab (1987), arranged by topics with the short headlines of
newspapers. See also Veja, 13 August 1986.
8. The analysis of the parliamentary partisan alignment in relation to the pre-
existing one is made by Fleischer (1990).
9. Many other studies, produced by private lobby agencies and newspapers using
different methodologies and with different purposes, were circulating by the
instalment of the assembly. On this specific study, see Folha deS. Paulo, 19
January 1987, supplement.
I0. He also calculated the turnover rate of congressmen, concluding that there were
274, or 49 per cent, of 'freshmen' members. See Fleischer (1988).
11. See Martins Rodrigues (1987).
12. See Folha deS. Paulo, 19 January 1987, supplement.
13. See Martins Rodrigues (1987).
14. The complete analysis is found in Fleischer (1988, 1990).
15. The complete survey was published in Veja, 4 February 1987.
16. Ibid., p. 20.
17. See Martins Rodrigues (1987:106-21).
18. The story of the unionism in the 1980s is told by Martins Rodrigues (1990).
Payne (1991) examines the strategy of Brazilian labour in the process of transition,
which is classified as 'democratic recalcitrant' strategy.
19. At the end of 1985, another central sindical was also created: the USI, or
Independent Union Confederation. However, this business-sponsored organization
advocated an apolitical line for unions. In its Constitution, the organization criticized
the involvement of unions in party politics and defended the peaceful resolution
of conflicts between capital and labour in order to preserve peace and order. For
further details see Martins Rodrigues ( 1990: 14-16). The record of the centrais
in the formulation wage policies during Sarney' s government is found in Tavares
(1989, 1993).
20. Martins Rodrigues (1993) makes a brief but clear characterization of the old
corporatist structure and an evaluation of the modifications introduced during
the constitutional renewal.
21. According to this legislation, all the workers of a given firm who wanted to be
unionized had to register in the same union, regardless of their own trade or
activity, as the company had been classified.
210 Notes

22. It should be also noted that state or municipal entities could not be organized
to unite workers of areas that, at the national level, belonged to the same
confederation. By the same token, no national entities were allowed to be formed
following the classification of trade unions at the local level. For instance,
labour unions of textile company employees in a given state could form a
federation within the state, but the legislation did not allow a national confederation
of textile workers (or paper, rubber, and so on).
23. This obviously provided some financial advantages to the official unions. The
compulsory union due or impasto sindical is equivalent to one day's pay per
year. It is collected by the employer and, until the 1988 Constitution, it was
distributed according to the following shares: 60 per cent for the local union,
15 per cent for the federation to which the union belonged, 5 per cent for the
confederation, and 20 per cent for a special account at the Ministry of Labour.
See Martins Rodrigues (1993:30).
24. Interview with Ulisses Riedel on 11 December 1992, Brasilia, D.F.
25. One important instrument of pressure used by DIAP in the final phases of the
constitutional deliberations was the evaluation of the voting behaviour of each
assembly member to produce posters and bulletins listing the 'enemies of the
people' who opposed labour demands (they were also carefully displayed in each
member's electoral constituency). Many of the congressmen I interviewed
mentioned that this kind of pressure helped to shape to a large extent the voting
behaviour of many of their peers. The final outcome of DIAP' s evaluation was
published in book-form with the title Who was who in the Constituent Assembly.
See DIAP (1988).
26. An amendment to the Labour Code in 1967 instituted the FGTS (Fundo de
Garantia por Tempo de Servi~o) which allowed employers to fire employees
as long as they compensated them for the number of years they had worked in
the firm. This indemnity provision was still part of the Labour Code in 1987.
Labour leaders argued that this was an extremely weak deterrent to discharges
without cause and in some cases encouraged high turnovers.
27. An account of the failed attempts by Labour Minister, Pazzianoto, to introduce
a new strike law is told by Diniz (1986).
28. The point is elaborated by DIAP's director in Riedel (1987).
29. Using other methodologies, other studies offered different but not substantially
divergent results. For instance, Martins Rodrigues estimated that workers
accounted for 3 per cent against 32 per cent of businessmen of the Constituent
Congress as a whole. See Martins Rodrigues ( 1987:79-80).
30. See Payne (1991:231).
31. One account of the business sector's participation in the liberalization process
is found in Cardoso ( 1986a). A comparison of the industrial business sector's
attitudes and behaviour during the regime change of 1964 and the most recent
democratic transition is undertaken by Payne ( 1994). The role of the industrial
business in the constitutional debate is made genemlly in Diniz and Boschi (1989).
32. In addition to the important administrative positions they started to occupy such
as in the case of Dilson Funaro in the Ministry of Finance, others, like Tasso
Jeressati -a successful businessman from the Northeastern state of Ceara- won
governorship, and Antonio Ermirio de Morais - the owner of the influential
industrial group, Votoratim- seriously challenged the candidacy of the PMDB
in Sao Paulo in 1986. See Diniz and Boschi (1989: 122).
33. Folha deS. Paulo, 19 September 1986. See also Diniz and Boschi (1989).
 Notes 211

34. Diniz and Boschi (1989:128-32).

35. Further details on the UDR and its role in the constituent process is presented
in Chapter 6. An analysis of the rural business sector during the Samey government
is found in Baltar (1990).
36. Dreifuss (1989:50--6) provides a list of organizations which were organized
presumably to provide electoral support to 'friendly' candidates.
37. These are the estimates of Fleischer's analysis mentioned above. Martins
Rodrigues calculated that 9 per cent of the business class belonged to the rural
sector. Martins Rodrigues (1987:79-80).
38. Afif Domingos, president of the FNLI and the Association of Commerce of Sao
Paulo, and member of the Constituent Assembly, claimed then that a $35 million
fund was developed to run the campaign of the FNLI. Veja, 11 November 1987.
39. See Silva (1989:31-3).
40. See Stepan (1988:93-127).
41. The National Intelligence Service (SNI) was abolished by President Collor de
Mello only in 1990. He created in its stead the Secretariat for Strategic Affairs
or Secretaria de Asuntos Estrategicos (SAE), to be headed by a civilian.
42. In 1979, Congress had voted an amnesty for crimes committed between 1964
and 1979 and it was widely accepted by both the military and civilian camps.
During the discussion for the convocation of the assembly, several PMDB
congressmen proposed an extension of the amnesty, which was strongly opposed
by the military.
43. The influence of the military during the New Republic is discussed in G6es (1988)
and Diniz (1986:82-5). A useful comparative approach among Spain, Argentina
and Brazil is made by Zaverucha (1993).
44. The threat of a military intervention was used constantly during the whole
process to harass the assembly. For details, see, for instance, Veja, 30 March 1988.
45. For details on the extreme-right organizations, including the military, see Dreifuss
( 1989:85-99).
46. The story of the movement is written by Michiles et al.( 1989). The authors were
themselves leaders of the movement.
47. In 1986, the CNBB published a document entitled 'Por uma Nova Ordem
Constitucional' in which it advocates not only the reform of the institutions of
political democracy but a socioeconomic democratization. The document
discusses the methods of popular participation and lists a wide range of concrete
demands including human rights, minority rights, labour rights, and radical land
reform. It did not directly advocate the establishment of an anti-capitalist model,
but recommended economic planning, the encouragement of social and communal
forms of property and stressed the supremacy of labour over capital. For more
details, see Conferencia Nacional dos Bispos do Brasil (1986).
48. The point was extensively argued by Hermann Assis Baeta, president of the OAB,
during the second National Congress of Lawyers pro-Constituent Assembly on
15 October 1985.

4 THE CONSTITUTION'S DRAFfiNG PROCESS, 1987-88

I. This was the longest process in the history of Brazil's constitution-making

experiences. In 1891, the constitutional discussion lasted for three months, eight
months in 1934, seven months in 1946 and 45 days in 1967.
212 Notes

2. On his analysis of Congress, Baaklini dedicates a couple of chapters to the

constitution-making process. On the organization of the works, see particularly
chapter 7, Baaklini (1992).
3. Because of the renewal of the Senate in two parts - one and two-thirds in
alternate sequence - there were 23 senators elected in 1982 under the military
regime.
4. Veja, 11 February 1987.
5. In Fleischer's opinion, these were the democratic equivalent to the military regime's
'institutional acts'. See Fleischer (1990:244).
6. During the deliberations of draft in plenary, the PT Deputy, Plinio de Arruda
Sampaio, argued that 'the gradual and slow transition would not be so for ever.
It would end today'. Veja, 4 March 1987.
7. Arguments in this fashion were articulated by many jurists and political figures:
Gofredo da Silva Telles Jr, Marco Maciel and Paulo Brossard, among others.
Veja 4 March 1987. Editorials of some of the most influential newspapers such
as Jornal do Brasil and 0 Estado de S. Paulo criticized the proposal as well.
See, for instance, Jomal do Brasil, 4 February 1987.
8. Veja, 4 March 1987.
9. 0 Estado deS. Paulo, 10 March 1987.
10. lorna[ de Brasilia, 3 February 1987.
11. Folha deS. Paulo, 11 February 1987.
12. Interview with Joiio Gilberto Lucas Coelho on 30 June 1992, Porto Alegre, Rio
Grande do Sui.
13. See Assembleia Nacional Constitutinte, Regimento lnterno da Assembleia
Nacional Constituinte, Resoluriio No. 2 de 24 de marro de 1987.
14. Veja, 25 April1987.
15. Folha deS. Paulo, 21 March 1987.
16. Jornal do Brasil, 23 March 1987.
17. Correia Brasiliense, 20 March 1987.
18. Veja, 8 Aprill987.
19. A sociological analysis of the total number of 72719 popular suggestions received
and organized by Prodasen between 1986 and 1987 is found in Monclaire
(1991).
20. The data on the number of amendments were collected from Prodasen database,
Brasilia.
21. See Veja, 3 June 1987.
22. See for instance Veja, 3 June 1987.
23. Veja, 27 May 1987.
24. Other informal parliamentary groups also had been operating since the beginning
of the deliberations. On the right, there was the Centro Democratico, formed
by the members of the PMDB, part of the PFL, PTB, PDC and PL. On the left,
there was the so-called historicos of the PMDB and the MUP (Movimento de
Unidade Progresista), which included the most radical members ofthe PMDB
as well as other allies from the small leftist parties.
25. Interview with Bernardo Cabral on 12 June 1992, Brasilia, D.F.
26. In fact, the total number of popular amendments received by the Constituent
Assembly was 122, but only 83 met the requirements specified by the internal
statute.
 Notes 213

27. Jomal do Brasil, 18 October 1987.

28. Interview with Senator Mario Covas on 10 December 1992, Brasilia, D.F.
29. This was indeed recognized by most of my interviewees along the various
ideological spectra.
30. Jomal do Brasil, 4 November 1987.
31. Several studies had indicated that the impact of the labour rights provisions on
wage costs would bring an increase of an average of 33 to 42 per cent, and in
some sectors as much as 60 per cent. In 1988, Pastore and Zylberstajn calculated
that the transference of income from capital to labour factor would be up to 40
billion US dollars. This meant, according to them, the most spectacular income
distribution achieved by constitutional means, never seen before in any society.
See article by Jose Pastore and Helio Zylberstajn in Folha deS. Paulo, 9 July
1988.
32. 0 Estado deS. Paulo, 16 October 1987.
33. Folha deS. Paulo, 16 November 1987.
34. 0 Estado deS. Paulo, 4 November 1987.
35. See Resolup'io No. 3 da Assembleia Nacional Constituinte, 5 January 1988,
Brasilia.
36. Pressures from outside were crucial to define the vote of many congressmen.
Many of my interviewees on the right recalled how many of them became
intimidated by the strong campaign against the Centrlio. Particularly, one of the
PFL leaders, Jose Lins, recalled that the campaign against the 'enemies of the
people', launched by the unions and other civic organizations in early 1988,
intimidated the conservative majority, dropping the number to a bottom 230
members. Interview with Jose Linson 30 September 1993, Brasilia.
37. See Coelho (1988:54).
38. See Fleischer (1990:252).
39. Analysis on the voting behaviour of parties, in general and with reference to
specific issues, have been elaborated. The most significant of them was elaborated
by Professor Maria D' Alva K.inzo based on 33 crucial votes. Her conclusion
was that 'in spite the high index of dispersion in many cases, the distances between
parties reflected meaningful divisions among them ... therefore, it cannot be
denied that partisan cleavages do exist.' See Kinzo (1988b:22). Also, see Baaklini
(1992), chapter 8, and Lamounier (1989c), chapter 2.
40. Veja, 7 September 1988 and 5 October 1988.
41. An analysis of the text, from the juridical point of view, can be found in Paes
and Bonavides ( 1990) and D' Avila ( 1993). Weffort has elaborated an interpretation
of the constitution in terms of what it means politically. See Weffort (1990).
42. A political-institutional analysis of the constitutional decisions in historical
perspective has been elaborated by Amaury de Souza and Bolfvar Lamounier.
See Souza (1990).
43. Some excellent analyses on this issue can be found in Moises (1990b) and
Benavides (1991), particularly chapters 6 and 7.
44. A clear examination of this issue is found in Selcher ( 1990).
45. This question is analysed in Martins Rodrigues (1990) and (1993).
214 Notes

5 PRESIDENTIAL VERSUS PARLIAMENTARY GOVERNMENT IN

THE CONSTITUENT PROCESS

1. This was clearly the underlying view in the document 'Esperanya e Mudanya'
of 1982. See, Partido do Movimento Democratico Brasileiro, Revista do PMDB,
4, 1982.
2. Veja, 4 February 1987.
3. See Veja, 4 February 1987.
4. The academic and political debate around this question will be enriched over
the next five years. See Chapter 7 for references.
5. The most influential texts on the issue during the Populist Republic were Arinos
and Pilla ( 1958) and Reale (1962). On the parliamentary experience of the
1960s, see Skidmore (1967).
6. See Cardoso Silva et al. (1985:41-3).
7. One of the first press articles on the issue was written by Lamounier,
'Presidencialismo ou Parlamentarismo?' in Folha deS. Paulo, 19 January 1986.
Later, he also advanced his arguments in PMDB, Revista do PMDB, 8, 1986.
Helio Jaguaribe also discussed the matter on several occasions. See, for instance,
'As Opy6es da Comissao Constitucional' in Jomal do Brasil, 9 September
1986.
8. Assembleia Nacional Constituinte, Diario daAssembleia Nacional Constituinte,
Supplement 62:92-107.
9. Diario da Assembleia Nacional Constituinte, Supplements 62, 63, 66.
10. Public hearing by Senator Marco Maciel on 21 April1987, Diario daAssembleia
Nacional Constituinte, Supplement 79:88-102. On the eve of the floor session
to vote the system of government, he repeated similar arguments in defence of
the presidential option. See Senator Marco Maciel, speech to the Senate 16 March
1988.
11. Public hearing by Joiio Amazonas on 30 April 1987. Diario da Assembleia
Nacional Constituinte, Supplement 81:54-62.
12. Diario da Assembleia Nacional Constituinte, Supplement 81:52-8.
13. Interview with Senator Jose Fogaya, 10 September, 1992. Brasilia.
14. FolhadeS. Paulo,16June 1987.
15. Folha deS. Paulo, 18 and 20 July 1987.
16. Out of office, Samey would change his mind by the 1993 plebiscite. Despite
the lack of any institutional change, parliamentarism does not appear to him a:>
a dangerous adventure any more. He cast his vote for the parliamentary system
during the plebiscite of 21 April 1993. Folha de S. Paulo, 22 April 1993.
17. Diario da Assembleia Nacional Constituinte, several supplements.
18. Veja, 4 November 1987.
19. JomaldoBrasil,11March 1988.
20. A short account of business involvement in the question of the system of
government and the mandate is found in Dreifuss (1989: 198-207).
21. The Carta de Montes Claros, rejecting the parliamentary proposal, was subscribed
on 15 September 1987 by Newton Cardoso, Alberto Silva, Tasso Jeressati,
Geraldo Melo, Femardo Collor, Waldir Pires, Epitacio Cafeteira and Antonio
Carlos Valadares. Jomal de Brasilia, 26 September 1987.
22. Veja, 30 March 1988.
 Notes 215

23. Folha deS. Paulo's headline 'Prisco multiplies spending to guarantee the five
years of Samey' estimated that the ministry of Housing and Urban Development
had increased spending six times in only two months. Folha deS. Paulo, 18
March 1988.
24. 0 Estado de S. Paulo, 25 March 1988.
25. Jornal da Tarde, 25 March 1988; 0 Estado de S. Paulo, 25 March 1988.
26. Interview with Senator Jose Foga~a. Brasilia, I 0 September 1992, Brasilia.
27. 'The military accepts parliamentarianism', Gazeta Mercantil, 22 March 1988.
28. For instance, the influential Folha deS. Paulo newspaper made clear its
presidential inclination as early as June 1987. See editorial section, Folha deS.
Paulo, 21 June 1987. On the voting day, 0 Globo newspaper made an alarming
argument against parliamentarianism.
29. Some of them were actually quite grotesque and reflected a lack of information
on the issue, on the part of opinion makers. An opinion poll carried out by 0
Estado deS. Paulo at the end of August 1987 put the following question to the
people: In the case of an implementation of the parliamentary system, how should
the prime minister be selected?: (a) by direct popular suffrage, (b) by the
president of the Republic, (c) by the Congress. Eighty-two per cent chose the
first option. 0 Estado deS. Paulo, 30 August 1987.
30. The total assembly membership was 559 while the sum of signatures of the two
rival amendments totalled 693. Over one hundred members were subscribing
those two exclusive options.
31. Interview with Senator Mario Co vas on I0 December 1992, Brasilia. Referring
to Cabral's negotiated solution of a six-year mandate for the parliamentary
option, the senator had made clear that, against his convictions, he would be
forced in such a case to vote for the presidential option. 0 Globo, 23 August
1987.
32. Gazeta Mercantil, 22 March 1987.
33. An analysis of the calculations of strategic political actors on this crucial vote
is elaborated in Baaklini and Pojo ( 1989).
34. Interview with Deputy Cunha Bueno on 3 June 1992, Brasilia.
35. Constituifiio da Republica Federativa do Brasi/1988:163.

6. THE DEBATE OVER THE LAND REFORM ISSUE IN THE

CONSTITUENT PROCESS

1. As in the case of the form of government, the discussion over the issue of land
reform was not at all new in Brazilian politics. The question was part of the
political dispute-which precipitated the military coup in 1964. Two weeks before
the coup, President Goulart had decided to use decree powers to initiate a land
reform programme which had until then been denied by Congress. On this point
see Skidmore (1988) chapter 1.
2. See Santos (1990:32,34).
3. Ibid, p. 36.
4. See Sorj (1988: 144).
5. Ibid., pp. 140-1. Ivan de Otero Ribeiro, a prominent Marxist scholar who
formulated numerous economic arguments for land reform in the 1970s, also
216 Notes

suggested this kind of conclusion. But his argument for land distribution and
the elimination of large land-holdings also contained political reasons: to alter
the structure of power. The development of his arguments for land reform over
the previous decade can be traced in his collection of essays, in Otero Ribeiro
(1988).
6. See Sorj (1988:142-3). He himself questions three arguments which were
normally put forward to justify a land reform programme: (a) it would stop the
exodus to the cities and improvethe living conditions in the countryside; (b) it
would, consequently, make the urban demographic pressure and poverty diminish;
(c) it would increase the supply of the internal market with cheap products.
7. A brief analysis of the (re)emergence of the peasant and agricultural worker
movement as a political actor in the 1970s is found in Sigaud (1989:163-80).
8. The political process of the land reform from 1979 to 1988 is described in
Tavares (1989).
9. Tavares (1989:6-8).
10. Jose Gomes da Silva was director of ABRA and participated in the Samey
Government as director of INCRA. He resigned in late 1985 in protest at the
presidential cuts in the original land reform plan. See Silva (1989:14).
II. See Tavares (1989:2-5).
12. See Baltar (1990: 156).
13. According to Otero Ribeiro, who participated in the elaboration and execution
of the plan, one of the major problems in speeding up the progmmme was that
the strongest pressures for land distribution were coming from the Southeast
and South regions, precisely where the process of modernization had been more
intense and successful. Most properties were highly productive and, therefore,
were, according to the law, excluded from expropriation. Other problems were
related to the lack of technical expertise. See Otero Ribeiro ( 1988: 115-20).
14. Several studies on the issue of land reform had been produced. For an overall
historical view, see Tavares ( 1989). On the role of the rural business sector, see
Baltar ( 1990). An excellent critiquefrom the economic point of view to the land
reform plan is found in Cintra (1985).
15. By the internal rules, each committee was to be formed by 63 members which
would then be divided into three subcommittees of 20 to 21 members (the
president and rapporteur of a committee were prohibited from participating in
any subcommittee). However, there was some flexibility in the application of
this rule in order to be able to accommodate the preferences of the assembly
members and party proportionality. The Commission of Economic Order was
particularly in great demand. Instead of 63, it was integrated with 64 elements,
distributed unevenly among the three subcommittees.
16. Lima Filho served as a minister for agriculture during the Goulart government
and was a well-known proponent for a mdicalland reform, with ties to the Catholic
Church.
17. Unless stated otherwise, the general description of the subcommittee proceedings
is based mostly on the various issues of the Assembleia Nacional Constituinte,
Diario da Assembleia Nacional Constituinte.
18. Telles de Menezes made his presentation on 30 April1987. The other exponents
from the business sector elaborated around the same line of argument. On the
Telles de Menezes presentation see Diario da Assembleia Nacional Constituinte,
Supplement 96:115-35.
 Notes 217

19. For an account of the constituent process from the point view of the CONTAG,
refer to Silva ( 1989).
20. This proposal was the result of a unified effort by all the different organizations
involved in the land reform campaign, such as CONTAG, CJYI', MTST, ABRA,
CUT, CGT and CNBB, among others.
21. ABRA' s exponent, Luiz Fachin, contended that many of the 1100 articles and
paragraphs of the existing estatuto da terra and its related laws were deliberately
written to obstruct and complicate the process of land reform. Diario da
Assembleia Nacional Constituinte, Supplement 56:50.
22. The m6dulo was a measure of area used in the estatuto da terra to classify the
size of properties that varied according to the region. For instance, the m6dulo
in the region of Sao Paulo was equal to five hectares. In the most remote areas
of the Amazon it was equal to over 100 hectares.
23. This provision, according to ABRA, would allow the confiscation of nearly 200
million hectares. It was argued in the presentation that this would allow the settling
down of nearly one half of the landless workers without the need to transfer
them to other parts of the country or the need to expropriate land holdings with
less than 60 m6dulos which did not fulfil its social obligation. Diario da
Assembleia Nacional Constituinte, Supplement 56:48.
24. The existing legislation determined that, once the executive had issued an
expropriating decree, the judiciary should be given time to consider the case
and, if justified, it should then issue an appropriation order. The inclusion of
the imissiio automatica meant that the intervention of the judiciary in judging
the executive's expropriation decrees would be eliminated.
25. Perhaps his best argument can be illustrated by the following statement: '[keeping]
a property of four million hectares as it is the case of a timber company that
belongs to MANASA, in the Amazon, even if it is totally productive, which it
is not, is a social injustice, when we have millions of people without a piece of
land to plant'. Diario da Assembleia Nacional Constituinte, Supplement 56:53.
26. Diario da Assembleia Nacional Constituinte, Supplement 97:80-98.
27. Relatorio e Anteprojeto, Subcomissiio da Politica Agricola e Fundiaria e Da
Reforma Agraria.
28. The discussion on the Oswaldo Lima Filhos report was held for around ten days.
See Diario da Assembleia Nacional Constituinte, Supplements 99, 101, 102.
29. On this point, the reformist camp claimed that setting a top limit at 100 m6dulos
would mean expropriating only 10 per cent of owners while 90 per cent would
be left untouched.
30. Diario da Assembleia Nacional Constituinte, Supplement 101: 101-2.
31. The incidents of the voting session of the subcommittee received wide publicity
in the press and were notoriously pinpointed by some analysts as an example
of the resistance of the 'reactionary' forces against land reform in Brazil. For
instance, see Ferreira and Teixeira ( 1988).
32. The act of the long voting session is found in Diario da Assembleia Nacional
Constituinte, Supplement 104.
33. Of course, the internal regulation stipulated that substitution of absent members
could be made only by members of the same party in order to maintain the party
proportionality in each subcommittee and committee. But the interpretation
given by the subcommittee's president to the Guimariies resolution was in the
sense of allowing a PL member to substitute a PMDB member. Guimariies's
218 Notes

resolution was certainly unclear: 'by virtue of party understandings, one seat
which belonged to the PL had been handed over to the PMDB, remaining,
consequently, with its respective substitute [suplente]'. Diario da Assembleia
Nacional Constituinte, Supplement 99:146.
34. Some members of the reformist camp claimed that Oswaldo Almeida's signature
had been written down the night before.
35. The internal regulation explicitly prohibited the presentation of alternative
projects to the constitutional project as a whole, but was unclear regarding the
partial reports of subcommittees and committees. The resolution by Ulysses
Guimaraes was not entirely unambiguous either.
36. Substitutivo (Nova Reda~ao), Comissao da Ordem Economica, Assembleia
Nacional Constituinte.
37. Diario da Assembleia Nacional Constituinte, Supplement 91.
38. Since the beginning of June, the leaders of the Frente Parlamentar da Agricultura
and several leaders of the business sector had been discussing and negotiating
a counter-proposal as well as the actions to be taken on the voting day. See Baltar
(1990:223-4).
39. Projeto da Comissao, Comissao da Ordem Economica, Assembleia Nacional
Constituinte.
40. Diario da Assembleia Nacional Constituinte, Comissao de Sistematiza~/io,
Supplement 171.
41. The president of CONTAG, Jose Francisco da Silva, defended the popular
amendment with 638469 electors' signatures (the third largest) supported by
CONTAG, ABRA and CPT. State deputy Vladir Ganzer (PT) defended a similar
amendment with 550000 signatures sponsored by CUT, MTST and CPT. Flavio
Telles de Menezes presented also a popular amendment with 43275 signatures
sponsored by SRB, OCB and CNA. The official requirements for the submission
of popular amendment were 30000 electors and three civic associations. See
Michiles eta!. (1989:267-9).
42. The three groupings consisted of the following members. On the right, the
members of the PMDB Centro Democratico, part of the PFL, PTB, PDC, and
PL. On the left, the so-called historicos of the PMDB, the MUP (Movimento de
Unidade Progresista, which included the most radical members of the PMDB),
PT, PCB, PCdoB, PDT, and PSB. In the centre, there was the so-called Grupo
dos 321ed by Senator Jose Richa (PMDB) and Deputy Sandra Cavalcanti (PFL)
who tipped the balance.
43. In the nominal roll-calling the votes in favour of the amendment increased to
85 against eight votes against.
44. For many members on the right, such a criterion was too vague and subjective,
leaving 'productive' land without constitutional protection.
45. For reference on the voting session, see Diario da Assembleia Nacional
Constituinte, Comissao da Sistematiza~ao, Supplement 171 C:2064-83.
46. As part of its own plan of action, the UDR published a leaflet in defence of the
protection ofthe 'productive' land to be distributed to assembly members. For
more details on the political actions undertaken by the rural business organizations
see Baltar (1990:233-50).
47. During the floor deliberations, on the question of the agrarian issue, the assembly
was more clearly polarized into two distinct inter-partisan camps. the Centr/io
and the reformist group. The latter was composed roughly of the historicos of
 Notes 219

the PMDB led by Senator Mario Covas.

PMDB the members oftheMovimento de Unidade
PMDB
Progresista (MUP), which included the most radical members of the PMDB,
and the rest of the small leftist parties: PDT, PT, PCB, PCdoB and PSB.
48. From the CONTAG, the objection to the proposal was the word 'minimum' in
specifying the conditions under which productive property would be guaranteed.
This, according to them, was too ambiguous and subjective. See Silva (1989: 182).
49. 0 Estado deS. Paulo, 6-11 May 1988.
50. Diario da Assembleia Nacional Constituinte, p. 10299. (My emphasis.)
51. The DVS (Destaque para Votafilo em Separado) was introduced during the
modification of the internal statute in order to help to accelerate floor voting.
52. Jobim was then vice-leader of the PMDB. Interview with Nelson Jobim, Brasilia,
7 October 1993.
53. Jobim, a respected centre-left figure, was extremely critical of the behaviour of
the left in the assembly. 'The left made this brutal procedural mistake due to
the monitoring [patrulhamento] that the CPT, MTST and others, who were totally
irrational, were imposing on the leftist assembly members.[ ... ) After the vote,
the left tried to hide this fact, but it is all documented. [ ... ] In truth, some sectors
on the left were not committed to land reform. They were committed in not
recognizing private property.' Interview with Deputy Nelson Jobim, Brasilia,
7 October 1993.
54. To contrast this result with Martins Rodrigues predictions, see Chapter 3 of this
book.

7 THE NEW DEMOCRATIC ORDER AT WORK AND THE REFORM

PROCESS OF 1993
1. See Lamounier (1993: 117).
2. For instance, this line of argument is followed in Kinzo (1994).
3. Lamounier has used the concept of consociational democracy to argue that in
its functioning and aggregate effect (though clearly not in its structure), the Brazilian
democratic system has become excessively consociational. As he also notes,
the term consociational democracy in contemporary political science is normally
employed to refer to that sub-group of democracies such as they exist in Belgium
and Holland, for example, which integrate into the global institutional structure
of representation and decision-making, detailed counterweights and rights
designed to protect minorities against the majority's will. But the similarities
he intends to draw refer to the effects rather than to the material institutional
mechanisms. Lamounier (1993: 118-20).
4. As it was explained in the Chapter 4 of this book, the provisional measure was
the device designed by the Constituent Congress to substitute the old legal
figure of the decree-law. It can be issued by the president in cases of 'extreme
relevance and urgency'. It becomes immediately effective unless rejected by a
congressional majority within 30 days.
5. Estimated by Banco de Dados do SICON (Sistema de lnforrnafCio do Congresso
Nacional), Brasilia.
6. For a detailed analysis of the presidential election, see Shidlo (1990) and
Lamounier ( 1989c: 127-45).
220 Notes

7. Five of those provisional measures were actually contested in the Supreme

Court (STF) for unconstitutionality, but the Supreme Court chose initially to
maintain them. For instance, provisional measure 173 which cancelled the right
of defence (liminares) against the freezing of financial assets was accepted by
the Supreme Court. See /sto E, 16 May 1990.
8. Lamounier has characterized the experience of the first months of the Co !lor
administration as the situation of a 'Roman Dictatorship' in which, by virtue of
the serious economic emergency, democratic controls were virtually suspended.
His analysis of the executive-legislative relations in the first months of the
Collor administration is found in Lamounier (199la:83-98).
9. In fact, the 'honeymoon' of President Col!or with the other branches of government
was broken by the Supreme Court (STF) in the early days of June. By nine to
zero, the judges of the STF declared the provisional measure 190 unconstitu-
tional (which was are-edition of provisional measure 185). This measure granted
power to the federal labour courts to suspend increases in wages approved by
the regional labour courts. See lsto E, 13 June 1990.
10. An account of the relationship between the president and Congress during
1990-91 of the Collor government on the issue of the wage policy is found in
Castro Santos (1991).
11. An account of the impeachment process is found in Kinzo ( 1993c ). For an
overview of the Collor' s government, see Flynn ( 1993).
12. Exactly 434 such measures had been issued until March 1994. See Lamounier
(1994:30).
13. See the opinion survey made by Souza and Lamounier (1992).
14. For a pro-parliamentary interpretation of the Collor crisis, see Kinzo (1993c).
Lamounier also elaborated on his argument that the plebiscitarian character of
the Brazilian presidential system had showed once more that the fixed presidential
mandate was likely to be exhausted earlier in practice than its due. This argument
was developed in several articles. See Lamounier (1989b, 1993, 1994).
15. For instance, Helio Jaguaribe, an advocate of the parliamentary government,
rightly argued that changes in the electoral and party system should precede the
introduction of parliamentarism as there was no guarantee that parties and
congressmen would improve as a result of it. Instability and lack of discipline
would tend to remain even under the parliamentary system. See Jomal do
Brasil, 4 April 1993.
16. This was, for instance, the argument of Renato Lessa. He suggested that the
combination of presidentialism with the proportional representation electoral
system offered the opportunity of maximizing both governability and repre-
sentativeness. To co-ordinate the two branches of government, two crucial
variables should be taken into consideration: the disposition of elites to form
coalitions and the coinciding presidential and congressional elections. See Lessa
(1993).
17. As can be observed, the distribution of partisan forces in the Chamber of Deputies
after the election of October 1994 has not suffered any significant alteration.
The PMDB continues to be the largest party with 21.5 per cent of the seats. The
PFL maintains second place with the same 17.5 per cent. Altogether, the
PSDB/PFUPTB coalition of the president-elect, Fernando Henrique Cardoso,
represents only 35.5 per cent of the seats, far short of a majority.
 Notes 221

18. Within those two years, seven deputies changed party affiliation as many as five
times. See Correio Brasiliense, 28 June 1993.
19. According to Kinzo, it has been the combined effect of those three elements
which had produced the existing situation. See Kinzo (1988b, 1993b).
20. This is the argument of Kinzo (1993b) and Hudson de Abranches (1993).
21. See Lamounier (1994:21).
22. The analysis of the issue in the aftermath of the promulgation of the new
constitution is made by Selcher (1990).
23. See Flynn (1993:369).
24. By 1993 this became a highly explosive issue. Governors were reluctant to accept
any fiscal reform which might reduce their resources, especially when most of
them were deeply in debt. Moreover, the payroll of local governments grew by
77 per cent between 1985 and 1990. Only three states were solvent and local
governments now owed 49 billion dollars, more than Brazil's debt to foreign
commercial banks. See Flynn (1993: 269).
25. /sto E, 16 January 1991.
26. In the January 1963 plebiscite, the people chose to restore the presidential
system which had been dismantled by Congress a few months earlier. On that
episode refer to Skidmore ( 1967:205-20). For a comparison between 1963 and
1993, see Benavides (1993).
27. This section draws on Martinez-Lara (1993).
28. The plebiscite generated a rich academic discussion on the various aspects of
the issue, with specific reference to Brazil, among Brazilian as well as foreign
scholars. Some of the most important references are Lamounier ( 1991 b); Andrade
(1993); Serra (1993); Nunes (1993); Mainwaring (1993); Sartori (1993); and
Whitehead ( 1993a).
29. Datafolha Survey in Folha deS. Paulo, 12 March 1993.
30. Official results published in Folha deS. Paulo, 18 May 1993.
31. See Angell et a!. (1992).
32. Another common opinion among the anti-revision forces was that alterations
to the constitution should be carried out only under the normal amending
procedure, which required a three-fifths majority in two rounds and separately
in the senate and the chamber, in order to make sure that the modifications enjoyed
a high level of national consensus. This type of argument was expressed by the
president of the CNBB, D. Luciano Mendes de Almeida, in Folha deS. Paulo,
30 June 1993. A similar view was also made by Senator Josephat Marinho.
Interview with Senator Josephat Marinho, 6 October 1993, Brasilia.
33. The formal arguments of the PT to justify its opposition to the revision followed
the lines of the OAB and CNBB' s opinion. Folha de S. Paulo, 13 June 1993.
34. After a discussion in August 1988, the National Directory of the PT decided to
vote against the document but agreed to sign it as an indication that it rejected
the general character of the text but acknowledged the minimum social conquests.
The document of the National Directory is reproduced in Gadotti and Pereira
(1989:311-12).
35. The distribution of ideological forces after the 1990 congressional elections had
been altered in favour of the right. At the beginning of the 1991-94legislature,
the Chamber of Deputies had 20 per cent on the left, 29 per cent in the centre
and 51 per cent of deputies on the right. On this question see Lamounier
( 1991 a:96). On the second point, Martins Rodrigues argued that, in addition to
222 Notes

the deep-rooted statism and bureaucratic tradition of the left, the main reason
behind the anti-revision stance was the defence of the corporatist structure that,
though it does not serve the general interest of the working class, provides
enormous benefits to the union bureaucracy. See Folha deS. Paulo, 4 October
1993.
36. Gazeta Mercantil, 21 October 1993.
37. Veja, 6 October 1993. A more elaborated survey on the issues of reform among
the business community and congressmen was elaborated by Lamounier and
Souza and published by Gazeta Mercantil. In broad terms, the level of consensus
on the agenda of reform is remarkably high. Gazeta Mercantil, 21 October 1993.
38. Veja, 29 September 1993.
39. Veja, 13 October 1993.
40. Veja, 20 October 1993.
41. Among other things, Deputy Jobim had proposed to set a threshold of 195
signatures for amendments to take precedence in floor voting. This provision
alone would eliminate the obstructionist procedural manoeuvre of the anti-
reform group (which altogether had over 90 votes), allow Congress to work on
a less disaggregated basis and speed up the process. Instead, the adopted
procedure allowed for the multiplication of the number of issues to be discussed
and decided as it provided no incentives for worldng on a more aggregating manner.
Folha deS. Paulo, I October 1993.
42. This measure and an increase of income tax would enable the government to
balance its books in 1994 by bringing down the expected fiscal deficit of US
$22 billion to zero (five per cent ofGDP). The measures involving constitutional
amending over the retention of transference of resources to state and municipalities
were made only on a provisional basis. This meant that it all belonged to the
transitory part of the revision and not to the permanent provisions of the revised
chart. Isto E, 16 February 1994.
43. Jomal do Brasil, 20 February 1994.

CONCLUSION

1. At the beginning of 1995, Veja stated that there were nearly seven million public
employees all over the country, of which 700000 were being employed by the
federal government and the rest by the 27 states and the 5000 municipalities.
This meant that one out of ten Brazilian workers makes his living out of the tax
payers' pocket. See Veja, 22 February 1995.
Bibliography

SCHOLARLY SOURCES
Alves, Maria Helena Moreira ( 1985) State and Opposition in Military Brazil. Austin:
University of Texas Press.
Andrade, Regis de C. (1993) 'A Reforma lnstitucional no Brasil'. Lua Nova,
28/29:5-20.
Angell, Allan, Maria D' Alva G. Kinzo and Diego Urbaneja (1992) 'Electioneering
in Latin America', in Butler and Ranney ( 1992).
Anglade, Christian ( 1987) 'The Brazilian Elections of November 1986'. Electoral
Studies, 2:164-9.
ANPOCS (1988) Ciencias Sociais Hoje, 1988. Sao Paulo: Vertice e ANPOCS.
Arinos, Afonso and Raul Pilla (1958) Presidencialismo ou Parlamentarismo. Rio
de Janeiro: Jose Olympo Editores.
Arruda Sampaio Junior, Plinio and Rui Affonso (1986) 'A Transiyao Inconclusa',
in Koutzii (ed.) (1986).
Baaklini, Abdo I. ( 1992) The Brazilian Legislature and Political System. Westport,
Connecticut and London: Greenwood Press
- - and Antonio Carlos Pojo do Rego (1989) '0 Presidencialismo na Polftica
Brasileira'. Revista Brasileira de Ciencia Politica, 1( 1): 165-91.
Baer, Werner and Paul Beckerman ( 1989) 'The Decline and Fall of Brazil's Cruzado'.
Latin American Research Review, I :35-64.
Banting, Keith and Richard Simeon (eds) (1985) Redesigning the State: The Politics
of Constitutional Change. Toronto: University of Toronto Press.
Benavides, Maria Vi tori a de Mesquita ( 1991) A CidadaniaAtiva. Sao Paulo: Editora
Atica.
- - (1993) '0 Plebiscito de 1993 a Luz do Precedente de 1963'. Lua Nova,
28/29:75-83.
Bicudo, Helio (1986) '0 Verdadeiro Caminho da Democracia', in Sader (1986).
Bierrenbach, Flavio Flores de Cunha ( 1986) Quem Tem Me do da Constituinte? Rio
de Janeiro: Paz e Terra.
Bogdanor, Vernon (ed.) (1988) Constitutions in Democratic Politics. Aldershot,
Hants: Gower.
Brasil de Lima Junior, Olavo (ed.) (1990) 0 Balanfo do Poder. Rio de Janeiro:
IUPERJ/Rio Fundo.
Bresser Pereira, Luiz Carlos ( 1985) Pactos Politicos: do Populismo a
Redemocratizafiio. Sao Paulo: Brasiliense.
- - (1987) Desenvolvimento e Crise no Brasil. Sao Paulo: Brasiliense.
Bruneau, Thomas (1992) 'Brazil's Political Transition', in Higley and Gunther
(1992).
Bucalem Ferrari, Levi and Vicente da Costa (1989) 'Uma Analise da Campanha',
in Sadek (ed.) (1989).
Burton, M., R. Gunther and J. Higley ( 1992) 'Introduction: elite transformations and
democratic regimes', in Higley and Gunther (1992).
Butler, D. and A. Ranney (eds) (1992) Electioneering. Oxford: Oxford University
Press.

223
224 Bibliography

Camargo, Aspasia and Eli Diniz (eds) (1989) Continuidade e Mundanra no Brasil
da Nova Republica. Sao Paulo: IUPERJN ertice.
Cardoso Silva, Vera Alice and Lucila de Almeida Neves (1985) Tancredo Neves: A
Trajetoria de um Liberal. Petropolis, RJ: Vozes.
Cardoso, F.H. (1986a) 'Entrepreneurs and the Transition Process: The Brazilian Case',
in O'Donnell et al., (1986).
- - (1986b) 'Urn Modelo Polftico-Institucional'. Dados, 2:175-89.
Castro Santos, Maria Helena, Maria das Gra~as Rua and Carlos Roberto Dio da Costa
( 1991) A Polttica Salarial no Govemo Collor: Padroes de Negociarfio Executivo-
Legislativo. Brasilia: Uni versidade de Brasilia, Cardemos de Ciencia Polftica, No. 4.
Chace!, J.M., Pamela Falk and David Fleischer (eds) (1988) Brazil's Economic and
Political Future. Boulder, CO.: Westview Press.
Chacon, Vamireh ( 1987) Vida e Morte das Constituiroes Brasileiras. Rio de Janeiro:
Forense.
Chagas, Carlos (1985) A Guerra das Estrelas, 1964-1984: Os Bastidores das
Sucessoes Presidencias. Porto Alegre: L & PM.
Chalmers, Douglas A., Maria de Carmo Campello de Souza and Atilio A. Boron
(eds) (1992) The Right and Democracy in Latin America. New York: Praeger.
Cintra Cavalcanti de Albuquerque, Marcos ( 1985) Algumas Consideraroes sobre a
Reforma Agraria. Brasilia: Instituto Tancredo Neves, Cardemos Liberais.
Coelho, Joao Gilberto L. (1988) '0 Processo Constituinte', in Guran (1988).
--and Antonio C. Nantes de Oliveira (1989)A nova Constituirfio: Avaliarao do
Texto e Perfil dos Constituintes. Rio de Janeiro: Editora Revan.
Comparato, Fabio Konder (1987) Muda Brasil: uma Constituifiio para o desen-
volvimento democratico. Sao Paulo: Brasiliense.
Dahl, Robert (1971) Polyarchy: Participation and Opposition. New Haven and
London: Yale University Press.
D' Avila, Luiz Felipe (ed.) (1993) As Constituiroes Brasileiras. Sao Paulo: Editora
Brasiliense.
Dantas Mota, L. ( 1985) A Nova Republica: 0 Nome e a Coisa. Sao Paulo: Brasiliense.
Diamond, Larry, Juan J. Linz and Seymour Martin Lipset (eds) (1989) Democracy
in Developing Countries: Latin America. Boulder, CO.: Lynne Rienner Publishers.
DIAP (1988) Quemfoi Quem na Constituinte. Sao Paulo: Cortez/Obore.
Dimenstein, Gilberto et al. ( 1985) 0 ComplO que Elegeu Tancredo. Rio de Janeiro:
JB.
Diniz, Eli ( 1985) 'A Transi~ao Polftica no Brasil: Uma Reavalia~ao da Dinamica da
Abertura'. Dados, 3:329-46.
- - (1986) 'A Transi~ao Polftica no Brasil: Perspectivas para a Democracia'.
Sociedade e Estado, 2:65-88.
- - (1989) 'Crise Polftica, Eleiyoos e Dinamica Partidaria no Brasil: Urn Balanyo
Hist6rico'. Revista de Ciencias Socias, 3: 323-40.
- - and Renato Boschi (1989) 'Empresarios e Constituinte: Continuidades e
Rupturas no Modelo de Desenvolvimento Capitalista no Brasil', in Camargo and
Diniz (eds) (1989).
Dreifuss, Rene Armand (1989) 0 Jogo da Direita. Petr6polis, RJ: Vozes.
Duchacek, Ivo D. (1973) Power Maps: Comparative Politics ofConstitutions. Santa
Barbara, CA.: ABC-Clio, Inc.
Duverger, Maurice (1980) 'A New Political System Model: Semi-Presidential
Government'. European Journal of Political Research, 8(2): 165-87.
 Bibliography 225

Elster, Jon and Rune Slagstad (eds) ( 1988) Constitutionalism and Democracy.
Cambridge: Cambridge University Press.
Faoro, Raymundo (1986a) Assembleia Constituinte. Sao Paulo: Brasiliense.
- - (1986b) 'Constituinte: a Verdade eo Sotisma', in Sader (1986).
Faria, Jose Eduardo (1989) 0 Brasil P6s-Constituinte. Rio de Janeiro: Graal.
Ferreira, Brancolina and Joao G.L.C. Teixeira (1988) 'Constituinte e Reforma
Agniria: embates de classe', in ANPOCS ( 1988).
Finn, Johri E. (1991) Constitutions in Crisis. New York: Oxford University Press.
Fiori, Jose Luis (1990) 'Transil;ao Terminada: Crise Superada?' Novos Estudos,
28:137-51.
Fishlow, Albert and Eliana Cardoso (1990) 'The Macroeconomics of the Brazilian
External Debt', in Sachs (ed.) (1990).
Fleischer, D. (1986a) 'The Brazilian Congress: From Abertura to New Republic',
in Selcher (ed.) (1986).
- - (1986b) 'Governabilidade e Abertura Polftica: As Desventuras da Engenharia
Polftica no Brasil, 1964-84'. Revista de Ciencia Polftica, 29( 1): 12-39.
- - (1988) 'Perfil Socio-econ6mico e Polftico da Constituinte', in Guran (ed.)
(1988).
- - (1990) 'The Constituent Assembly and the Transformation Strategy: Attempts
to Shift Political Power from the Presidency to Congress', in Graham and Wilson
(1990).
Flynn, Peter (1986) 'Brazil: the Politics of the Cruzado Plan'. Third World Quarterly,
4:659-86.
- - (1993) 'Co !lor, Corruption and Crisis: Time for Reflection'. Journal of Latin
American Studies, 25:351-71.
Friederich, Car!J. (1950) Constitutional Government and Democracy. Boston: Ginn
and Co.
Gadotti, Moacir and Otaviano Pereira (1989) Pra Que PT: Origem, Projeto e
Consolidariio do Partido dos Trabalhadores. Sao Paulo: Cortez Editora.
Gama de Andrade, Luis Aureliano ( 1989) 'Pretorianismo e Democracia: Notas sobre
a Transi\=ao Polftica no Brasil'. Ciencias Socias Hoje, Vertice, ANPOCS.
Garcia, Marilia (1985) 0 que e Constituinte. Sao Paulo: Brasiliense.
G6es, Walter de (1978)A Brasil do General Geisel. Rio de Janeiro: Nova Fronteira.
--and Aspasia Camargo (1984) 0 Drama da Sucessiio e a Crisedo Regime. Rio
de Janeiro: Nova Fronteira.
- - ( 1988) 'Militares e Polftica, uma Estrategia para a Democracia', in Reis and
O'Donnell (eds) (1988).
Gonzalez, J.J. and Boli'var Lamounier et al. (1991) El Proceso Constituyente.
Enseiianzas a partir de cuatro casos recientes: Espana, Portugal, Brasil y Chile.
Sao Paulo: IDESP.
Graham, Lawrence and R.H. Wilson ( 1990) The Political Economy ofBrazil: Public
Policies in an Era of Transition. Austin: University of T.exas Press.
Guimaraes, Ulysses ( 1984) 'S6 a Polftica eo Voto Fecharao a Brecha entre o Governo
e a Na\=ao'. Brasil em Exame, June: 49.
Guran, Milton (ed.) (1988) 0 Processo Constituinte 1987-1988. Brasilia: AGIL-UnB.
Hagopian, Frances (1990) 'Democracy by Undemocratic Means? Elites, Political Parties
and Regime Transition in Brazil'. Comparative Political Studies, 23(2): 147-70.
Higley, John and Richard Gunther (eds) ( 1992) Elites and Democratic Consolidation
in Latin America and Southern Europe. Cambridge: Cambridge University Press.
226 Bibliography

Hudson de Abranches, Sergio Henrique (1990) '0 Dilema PoHtico-Institucional

Brasileiro', in Velloso (1990).
- - (1993) 'Strangers in a Common Land: Executive/Legislative Relations in
Brazil', in Marks (1993).
Huntington, Samuel P. (1984) 'Will More Countries become Democratic?' Political
Science Quarterly, 2:193-218.
- - (1989) 'The Modest Meaning of Democracy', in Pastor (ed.) (1989).
Institute of Latin American Studies ( 1993) Brazil: The Struggle for Modernization.
London: Institute of Latin American Studies, University of London.
Jaguaribe, Helio ( 1985) Sociedade e Polttica: Um Estudo sobre a Atualidade
Brasileira. Rio de Janeiro: Jorge Zahar Editor.
Keck, Margaret E. (1992) The Workers' Party and Democratization in Brazil. New
Haven and London: Yale University Press.
Kinzo, Maria D' Alva 0.(1980) 'Novos Partidos: 0 Inicio do Debate', in Lamounier
(1980).
- - (1988a) Legal Opposition Politics under Authoritarian Rule in Brazil: the
Case of the MDB, 1966-79. London: Macmillan Press in association with St.
Antony's College.
- - (1988b) 0 Quadro Partiddrio e a Constituinte. Sao Paulo: IDESP.
- - (ed.) (1993a) Brazil: The Challenges of the 1990s. London: University of
London and British Academic Press.
- - (1993b) 'Consolidation of Democracy: Governability and Political Parties in
Brazil', in Kinzo (1993a)
· - - (l993c) 'The Political Process ofCollor's Impeachment', in Institute of Latin
American Studies (1993).
Koutzii, Flavio (ed.) (1986) Nova Republica: Um Balan~o. Porto Alegre: L & PM.
Lafer, Celso (1984) 'The Brazilian Political System: Trends and Perspectives'.
Government and Opposition, 2:178-87.
Lamounier, Bolfvar (ed.) (1980) Voto de Desconfum~a. Petropolis: Vozes/CEBRAP.
- - (1982) 'A Representa~ao Proporcional no Brasil: Mapeamento de urn Debate'.
Revista de Cultura Politica, 7:5-42.
- - (1984) 'Opening through Elections: Will the Brazilian Case become a Paradigm?'
Government and Opposition, 2: 167-77.
- - (1985) 'Apontamentos sobre a Questlio Democnitica Brasileira', in Rouquie
et a!. (1985).
- - (ed.) (1986) 1985: 0 Voto em Siio Paulo. Sao Paulo: IDESP.
- - (1987a) '0 Sistema Eleitoral Hoje', in Peixoto and Walter (1987).
- - (1987b) 'Os Trabalhos da Comissao Afonso Arinos', in Salinas Fortes and
Nascimento ( 1987).
- - (1989a) 'Authoritarian Brazil Revisited: The Impact of Elections on the
Abertura', in Stepan ( 1989).
- - (1989b) 'Brazil: Inequality Against Democracy', in Linz (1989).
- - (1989c) Partidos e Utopias: 0 Brasil no Limiar dos anos 90. Sao Paulo:
Edi~;6es Loyola.
- - (1990a) 'Eixos do Debate Polftico Brasileiro nos Anos 80'. Siio Paulo en
Perspectiva, 1:2-5.
- - (ed.) (l990b) De Geisel a Collor: 0 Balanfo da Transifiio. Sao Paulo: IDESP.
- - ( 1991 a) Depois da Transifiio: Democracia e Eleifoes no Governo Collor. Sao
Paulo: Edi~6es Loyola.
 Bibliography 227

- - (199Ib) 'Brasil: Rumo ao Parlamentarismo', in Lamounier (1991c).

- - (ed.) (1991c)A OpfilO Parlamentarista. Sao Paulo: Sumare.
- - (1993) 'Institutional Structure and Governability in the 1990s', in Kinzo
(1993a).
--and Rachel Meneguello ( 1986) Partidos Politicos e Consolidafiio Democratica:
0 Caso Brasileiro. Sao Paulo: Brasiliense.
Leite da Silva Dias, Guilherme and Basilia Maria Baptista Aguirre (1990) 'Transi~ao
Econ6mica e lngovemabilidade'. Silo Paulo em Perspectiva, 1:51-4.
Lessa, Renato (1993) 'Presidencialismo com Representa~ao Proporcional ou de
Como Evitar a Escolha Tnigica Entre Govemabilidade e Representa~ao'. Agenda
de Poltticas Publicas, IUPERJ, November 1993:25-44.
Levine, Robert M. (1982) 'Brazil: The Dimensions of Democratization'. Cu"ent
History, 472:60-3.
Lima, Luiz Gonzaga de Souza ( 1985) 'A Transi~ao no Brasil: Comentarios e
Reflex<ies'. Contexto lntemacional, I :27-59.
Loewenstein, Karl (1957) Political Power and the Governmental Process. Chicago:
University of Chicago Press.
Lomonaco Bastos, Vania and Tania Moreira de Costa (eds) (1987) Constituinte:
Questoes Potemicas. Brasilia: CEAC/UnB.
Lua Nova (1984) 'A Transi~ao e os Atores'. Lua Nova. 1(2):7-13.
Mainwaring, Scott ( 1986) 'The Transition to Democracy in Brazil'. Journal ofInter-
American Studies and World Affairs, 1:149-79.
- - (1993) 'Democracia Presidencialista Multipartidaria: 0 Caso do Brasil'. Lua
Nova, 28/29:21-74.
Marks, Siegfried (ed.) ( 1993) Political Constraints on Brazil's &onomic Development.
New Brunswick and London: Transaction Publishers.
Marques Moreira, Marcilio (1984) 'Political Liberalization and Economic Crisis'.
Government and Opposition, 2:157-66.
Martfnez-Lara, Javier ( 1993) 'The Brazilian Plebiscite of 21 April 1993'. Electoral
Studies, 12(4):403-7.
Martins Rodrigues, Leoncio ( 1987) Quem e Quem na Constituinte: Uma Analise S6cio-
Politica dos Partidos e Deputados. Sao Paulo: Jomal da Tarde.
- - ( 1990) '0 Sindicalismo nos Anos 80: Urn Balan~o·. Silo Paulo em Perspectiva,
1:11-19.
- - ( 1993) 'The Erosion of a Heritage: The Crises of Corporatist Unionism in Brazil',
in Institute of Latin American Studies ( 1993).
Mcilwain, Charles Howard ( 1947) Constitutionalism: Ancient and Modem. Ithaca,
NY: Cornell University Press.
MeWhinney, E. ( 1981) Constitution-making: Principles, Process, Practice. Toronto:
University of Toronto Press.
Meneguello, Rachel (1989) PT: A Fomtafiio de um Partido, 1979-1982. Rio de Janeiro:
Paz eTerra.
Michiles, Carlos, et al. ( 1989) Cidadiio Constituinte. Rio de Janeiro: Paz e Terra.
Moises, Jose Alvaro (l990a) 'Dilemas de Ia Consolidaci6n Democnitica en Brasil'.
S{ntesis II :213-43.
- - (1990b) Cidadania e Participafilo. Sao Paulo: CEDEC/Marco Zero.
- - (1993) 'Democratization and Political Culture in Brazil', in Kinzo (l993a).
Monclaire, Stephane and Cl6vis de Barros ( 1988) A PoUtica da Constituinte. Brasilia:
lnstituto Tancredo Neves.
228 Bibliography

- - (ed.) (1991) A Constitui~iio Desejada. Brasilia: Senado Federal.

Moura, Alkimar R. ( 1993) 'Stabilization Policy as a Game of Mutual Distrust: The
Brazilian Experience in Post-1985', in Kinzo ( 1993a).
Nascimento, Elimar Pinheiro (1989) 'Transi~iio Polftica: Antecedentes, Natureza e
Cenarios'. Sociedade e Estado, 1:7-21.
Noblat, Ricardo (1990) Ceu dos Favoritos: 0 Brasil de Samey a Collor. Rio de Janeiro:
Rio Fundo Editora.
Nohlen, Dieter and Aldo Solari (eds) (1988) Reforma Politica y Consolidaci6n
Democratica. Venezuela: Nueva Sociedad.
Norton, Philip (ed.) (1990) Legislatures. New York: Oxford University Press.
Nunes, Ferreira, Ivan Luis (ed.) (1993) 0 Plebiscita. Rio de Janeiro: Editora Nova
Frontera.
O'Donnell, Guillermo, and Philippe C. Schmitter ( 1986) Transitions from Authoritarian
Rule: Tentative Conclusions about Uncertain Democracies. Baltimore and London:
Johns Hopkins University Press.
--Philippe C. Schmitter and Laurence Whitehead (eds) (1986) Transitions from
Authoritarian Rule: Comparative Perspectives. Baltimore and London: Johns
Hopkins University Press.
Otero Ribeiro, Ivan de (1988) Agricultura, Democracia e Socialismo. Sao Paulo:
Paz eTerra.
Packenham, R. ( 1986) 'The Changing Political Discourse in Brazil, 1964-1985', in
Selcher (ed.) (1986).
- - (1990) 'Legislatures and Political Development', in Norton (1990).
Paes de Andrade, Ant6nio and Paulo Bonavides (1990) Hist6ria Constitucional de
Brasil. Brasilia: Paz e Terra.
Passarinho, Jarbas ( 1989) 'Os militares e a Republica'. Revista de lnforma~iio
Legislativa, 104:5-20.
Pastor, Robert A. (ed.) (1989) Democracy in the Americas: Stopping the Pendulum.
New York and London: Holmes and Meier.
Payne, Leigh A. (1991) 'Working Class Strategies in the Transition to Democracy
in Brazil'. Comparative Politics, I :221-38.
- - ( 1994) Brazilian Industrialists and Democratic Change. Baltimore and London:
The Johns Hopkins University Press.
Peixoto, J.P.M. and C.P. Walter (1987) Sistemas Eleitorais no Brasil. Brasilia:
Instituto Tancredo Neves.
Pennock, J.R. and John W. Chapman (eds) (1979) Constitutionalism, Nomos XX.
New York: New York University Press.
Pereira, Osny Duarte ( 1987) Constituinte: Anteprojeto da Comissiio Afonso Arinos.
Brasilia: Universidade de Brasilia.
Pimenta, Cornelio Octavio P. ( 1985) 'Parlamentarismo, Presidencialismo e Interesse
PUblico'. Revista de Ciencia PoUtica, 1:32-8.
Pinheiro do Nascimento, Eli mar (1988) 'Transi~ao? Qual transi~iio?' Humanidades,
16:22-6.
- - (1992) Renuncia e Impeachment no Presidencialismo Brasileiro L'affaire
Collorde Mello. Cahiers du Centre D'Etudes Politiques Bresiliennes, nos. 15-16,
Paris: C.E.P.B.
Przeworski, Adam (1986) 'Some Problems in the Study of the Transition to Democracy',
in O'Donnell et al. (1986).
- - (1988) 'Democracy as a Contingent Outcome of Conflicts', in Elster (1988).
 Bibliography 229

- - ( 1991) Democracy and the Market. Cambridge: Cambridge University Press.

Reale, Miguel (1962) Parlamentarismo. Sao Paulo: Saravia
- - (1992) De Tancredo A Collor. Sao Paulo: Editora Siciliano.
Reis, Fabio Wanderley and Guillenno O'Donnell (eds) (1988) A Democracia no Brasil:
Dilemas e Perspectivas. Sao Paulo: Vertice.
Riedel de Resende, Ulisses (1987) 'Uma Analise sobre os Dereitos dos Trabalhadores',
in Lomonaco and Moreira (eds) ( 1987).
Rodrigues, Maly (1990) 0 Brasil da Abertura: de 1974 a Constituinte. Sao Paulo:
Atual.
Roett, Riordan (1986) 'The Transition to Democratic Government in Brazil'. World
Politics, 2:371-82.
Rouquie, Alain, Bolfvar Lamounier and Jorge Schvarzer (eds) (1985) Como Renascem
as Democracias. Sao Paulo: Brasiliense.
Rustow, D.A. (1970) 'Transitions to Democracy: Toward a Dynamic Model'.
Comparative Politics, 2:337-63.
Saab, Paulo ( 1987) A Elei~iio do Cruzado. Sao Paulo: Global Editora.
Sachs, Jeffrey (ed.) (1990) Developing Country Debt and Economic Performance.
Chicago and London: University of Chicago Press.
Sadek, Maria Teresa (ed.) (1989) Elei~oes 1986. Sao Paulo: IDESPNertice.
Sader, Emir (ed.) (1986) Constituinte e Democracia no Brasil Hoje. Sao Paulo:
Brasiliense.
Salinas Fortes, Luiz Roberto and Milton M. do Nascimento (eds) ( 1987) A Constituinte
em debate. Sao Paulo: Edi~oes Sofia.
Sallum Junior, Brasilio (1988) 'Por Que Nao Tern Dado Certo: Notas sobre a
Transi~ao Polftica Brasileira', in Sola (ed.) (1988).
Santos, W.G. (1986) Sessenta e Quatro: Anatomia da Crise. Sao Paulo: Vertice.
e
- - (ed.) (1990) Que Brasil Este?: Manual de Jndicadores Polfticos e Sociales.
Sao Paulo: IUPERJNertice.
Samey, Jose (1986) 'Brazil: A President's Story'. Foreign Affairs, 1:105-6.
Sartori, Giovanni ( 1962) 'Constitutionalism: A Preliminary Discussion'. American
Political Science Review, 4:853-64.
--(1993) 'NemPresidencialismo,NemParlamentarismo'.NovosEstudos,35:3-14.
Schneider, Ronald M. (1986) 'Brazil's Political Future', in Selcher (ed.) (1986).
Selcher, Wayne A. (ed.) (1986) Political Liberalization in Brazil. Boulder, CO. and
London: Westview Press.
- - (1990) 'i,El Reinicio de un Federalismo mas Descentralizado en Brasil?'
Sintesis, 11:291-308.
Serra, Jose ( 1993) Reforma Pol£tica no Brasil: Parlamentarismo x Presidencialismo.
Sao Paulo: Siciliano.
Share, Donald and Scott Mainwaring ( 1986) 'Transicao pela Transa~o: Democrati~
no Brasil e na Espanha'. Revista de Ciencias Socias, 2:207-36.
Shidlo, Gil (1990) 'The Brazilian Elections of 1989'. Electoral Studies, 9(3):251-6.
Sigaud, Lygia (1989) 'A Presen~a Polftica dos Camponeses: Uma Questao de
Reconhecimento', in Camargo and Diniz (eds) (1989).
Silva, Jose Gomes da (1989) Buraco Negro: A Reforma Agraria Na Constituinte.
Rio de Janiero: Paz e Terra.
Skidmore, Thomas E. (1967) Politics in Brazil, 1930-1965: An Experiment in
Democracy. New York: Oxford University Press.
230 Bibliography

- - (1973) 'Politics and Economic policy-making in Authoritarian Brazil, 1937-1971',

in Stepan (1973).
- - (1988) The Politics of Military Rule in Brazil, 1964-85. New York: Oxford
University Press.
Sola, Lourdes (ed.) (1988) 0 Estado da Transi~iio: Politica e Economia na Nova
Republica. Sao Paulo: Vertice.
- - (1991) 'Heterodox Shock in Brazil: Tecnicos, Politicians and Democracy'. Latin
American Studies, I :163-95.
Sorj, Bernardo ( 1988) 'Reforma Agraria e Democracia', in Reis and O'Donnell
(eds) (1988).
Souza, Amaury de and Bolivar Lamounier ( 1990) 'A Feitura da Nova Constituh;ao:
Urn Reexame da Cultura Polftica Brasileira', in Lamounier (1990b).
- - (1992) A Opiniiio Publica Frente ao Plebiscita. Sao Paulo: IDESP, texto, no.
40.
Stepan, Alfred (1971) The Military in Politics: Changing Patterns in Brazil. New
Jersey: Princeton University Press.
- - (ed.) (1973) Authoritarian Brazil: Origins, Policies and Future. New Haven:
Yale University Press.
- - (1986) 'Paths toward Redemocratization: Theoretical and Comparative
Considerations', in O'Donnell eta!. (1986).
- - (1988) Rethinking Military Politics. Princeton, NJ: Princeton University Press.
- - (ed.) (1989) Democratizing Brazil. New York: Oxford University Press.
Tavares de Almeida, Maria Herminia ( 1989) 'Dificil Caminho: Sindicatos e PoHtica
na Constru9ao da Democracia', in Reis and O'Donnell (eds) (1988).
- - (1993) 'Unions, Economic Crises and High Inflation', in Kinzo (ed.) (1993a).
Tavares, Ricardo ( 1989) Reforma e Contra-reforma Agraria na Transi~iio Politica-
Brasil (1979-1988). Rio de Janeiro: IUPERJ, Serle Estudo, no. 70.
Velloso, Joao Paulo dos Reis (ed.) ( 1990) ModemizafiiO Politica e Desenvolvimento.
Rio de Janeiro: Jose Olympio.
Weffort, Francisco (1984) Por Que Democracia? Sao Paulo: Editora Brasiliense.
- - (1990) 'Un Sistema Dual de Poder: Notas sobre el Desarrollo Polftico de
Brasil'. Sfntesis, 11:189-212.
Whitehead, Laurence (1989) 'The Consolidation of Fragile Democracies: A Discussion
with Illustrations', in Pastor (ed.) (1989).
Zaverucha, Jorge (1993) 'The Degree of Military Political Autonomy During the
Spanish, Argentine and Brazilian Transitions'. Journal ofLatin American Studies,
25:283-99.

UNPUBLISHED DISSERTATIONS AND PAPERS

Ames, Barry (1992) 'Disparately Seeking Politicians: Strategies and Outcomes in

Brazilian Legislative Elections'. Paper prepared for the Convention of the Latin
American Studies Association.
Baltar, Ronaldo (1990) Os Empresarios Rurais e aReforma Agraria no Governo de
Transifiio ( 1985-1989). Campinas, Sao Paulo: MA diss., Universidade Estadual
de Campinas.
 Bibliography 231

Brasil de Lima Junior, Olavo (1993) '0 Mercado Polftico eo Sistema Partidario no
Brasil: 1945 a 1990'. Paper prepared for the annual conference of ANPOCS,
Caxambu.
Bruneau, Thomas C. ( 1989) 'Constitutions and Democratic Consolidation: Brazil in
Comparative Perspective'. Paper prepared for the Naval Postgraduate School,
Monterey, CA.
Cammack, Paul ( 1990) 'The Transitions to Democracy in Latin America: A Historical-
Structural Analysis'. Paper prepared for the Session on Transition to Democracy
in the Contemporary World, Center for Social Theory and Comparative History,
UCLA.
G6es, Walder de (1993) 'A Persistencia do Pensamento Autoritario nas For~as
Armadas Brasileiras'. Paper prepared for the annual conference of ANPOCS,
Caxambu.
Kinzo, Maria D' Alva G. (l994)'The Current Crisis in Brazil's Congress: Reversal
or Revival of Democracy?' Paper prepared for the conference 'Constraints of Growth
in Brazil: Economy, Society and Institutions', Institute of Latin American Studies,
University of London.
Lamounier, Bolfvar ( 1994) 'Brazilian Democracy from the 1980s to the 1990s: The
Hyper-Active Paralysis Syndrome'. Paper prepared for the Inter-American
Dialogue, Washington, D.C.
Pereira Teixeira, Olinta ( 1991) The Vicissitudes ofthe Brazilian Congress, 1964-1991.
MSc. diss., Oxford: University of Oxford.
Sadek, Maria Tereza ( 1994) 'Institutional Fragility and Judicial Problems in Brazil'.
Paper prepared for the conference 'Constraints of Growth in Brazil: Economy,
Society and Institutions', Institute for Latin American Studies, University of
London.
Whitehead, Laurence ( l993a) 'The April 21st Plebiscite: A Comparative Perspective'.
Paper prepared for the international conference 'Parlamentarismo e Presidencialismo:
Implica~i'>es para a Democracia a Governabilidade' at the University of Sao Paulo.
- - (1993b) 'Las Democratizaciones en una Perspectiva Comparada: Experiencias
y Teorias en el Mundo de Ia Pos-Guerra Fria'. Paper prepared for the International
Seminar of FLACSO-Chile, 'La Democratizaci6n Chilena en una Perspectiva
Comparada' at Santiago, Chile.

GOVERNMENT DOCUMENTS, OFFICIAL REPORTS AND SPEECHES

Assembleia Nacional Constituinte (1987-1988) Diario da Assembleia Nacional

Constituinte. Brasilia D.F.
- - (1987) Resolurao No. 2: Regimento lnterno. Brasilia D.F.
- - (1988) Resoluriio No. 3: Altera o Regimento lnterno. Brasilia D.F.
Baeta, Hermann Assis (1985) 'Razi'>es da Constituinte Exclusiva'. Address to the
Second Congress of National Lawyers in OAB-D.F., on 15 October 1985.
Banco de Dados do SICON, Apem, Prodasen, Senado Federal, Brasilia, D.F.
Brazil ( 1988) Constituifiio: RepUblica Federativa do Brasil. Brasilia: Senado Federal.
Conferencia Nacional dos Bispos do Brasil (1986) 'Por uma Nova Ordem
Constitucional'. Pastoral Declaration at the 24th General Assembly on 9-18 April
1986.
232 Bibliography

Congresso Nacional (1985) Diario do Congresso Nacional, Emenda Constitucional

nos 25,26. Brasilia, D.F.
Genoino Neto, Jose (1988) Uma Trajetoria de Luta na Constituinte. Brasilia: Cimara
dos Deputados.
Maciel, Marco (1988) 'Por un Novo Presidencialismo'. Address to the Federal Senate
on 16 March 1988.
Partido dos Trabalhadores (1987) Projeto de Constituifiio. Brasilia, D.F.
Partido Comunista Brasileiro ( 1988) Os Grandes Debates na Constituinte: Discursos.
Brasilia: Cimara dos Deputados
Partido Comunista do Brasil ( 1986) Constituinte: Propostas do PC do B. Sio Paulo:
Editora Anita Garibaldi.
Partido do Movimento Democnitico Brasileiro, Revista do PMDB, Funda~io Pedroso
Horta, vols 1-9. Rio de Janeiro.

NEWSPAPERS

Assembleia Constituinte, Newspaper Archive, Cimarados Deputados, Brasilia, D.F.

Digesto Economico, Ano XVI, no. 313.
Folha de S. Paulo, 1985-1988.
OEstadodeS. Paulo,1985-1988.
Refonna Agraria, Newspaper Archive, Cimara dos Deputados, Brasilia, D.F.
Revisiio Constitucional, Newspaper Archive, Cimara dos Deputados, Brasilia, D.F.
Sistema de Govemo, Newspaper Archive, Cimara dos Deputados, Brasilia, D.F.
Veja, 1985-1994.

INTERVIEWS

Senator Fernando H. Cardoso, Sio Paulo, 30 August 1990.

Paulo Affonso Martins de Oliveira, Brasilia, 19 May 1992.
Deputy Cunha Bueno, Brasilia, 3 June 1992.
Deputy Carlos Sant' Anna, Brasilia, 3 June 1992.
Senator Marco Maciel, Brasilia, 8 June 1992.
Deputy Ulysses Guimaries, Brasilia, 9 June 1992.
Deputy Haroldo Lima, Brasilia, 10 June 1992.
Deputy Bernardo Cabral, Brasilia, 12 June 1992.
Deputy Jose Genoino, Brasilia, 16 June 1992.
Deputy Jose Lauren~o. Brasilia, 17 June 1992.
Deputy Joio Gilberto Lucas, Porto Alegre, 30 June 1992.
Senator Jose Foga~a. Brasilia, I0 September 1992.
Deputy Roberto Cardoso Alves, Brasilia, 8 December 1992.
Senator Mario Covas, Brasilia, 10 December 1992.
Deputy Fernando Lyra, Brasilia, 10 December 1992.
Dantas Lucena, Brasilia, 11 December 1992.
Ulisses Riedel (DIAP), Brasilia, II December 1992.
Mozart Vianna de Paiva, Brasilia, II December 1992.
Bolfvar Lamounier (IDESP), Sao Paulo, 14 September 1993.
 Bibliography 233

Deputy Plfnio de Arruda Sampaio, Sii.o Paulo, 15 September 1993.

Deputy Jose Lins, Brasilia, 30 September 1993.
Deputy Ronaldo Caiado (UDR), Brasilia, 5 October 1993.
Senator Josephat Marinho, Brasilia, 6 October 1993.
Deputy Luis Roberto Ponte, Brasilia, 6 October 1993.
Deputy Nelson Jobim, Brasilia, 7 October 1993.
Mario Amato (FIESP), Sii.o Paulo, 21 October 1993.
Flavio Telles de Menezes (SRB), Sao Paulo, 21 October 1993.
Index
ABI (AssociQfao Brasileira de
lnzprensa),28,58, 185
ABINEE (AssociQfiio Brasileira da
Industria Eletro-Eletronica), 79
ABRA (Associafiio Brasileira de
ReformaAgraria), 83, 152, 153,
154
agrarian reform, see land reform; see
also peasants
ARENA (Alianfa Renovadora
Nacional)
electoral decline of, 28-30
origins of, 24-5
advantage over MDB, 25-6
representation in Congress, 20-1
armed forces
participation in the Constituent
Assembly, 84-6, 142
prerogatives under the 1988
Constitution, 103
role of, 36, 71
Brizola, Leonel, 31, 63, 64, 135, 140,
142
Cabral, Bernardo, 3, 99, 109, 110, lll,
112, 118, 136, 140, 161, 162, 166
Cardoso, Fernando Henrique, 52, 53,
54,56,57,93, 119,188,197,201
Cardoso Alves, Roberto, 82, 113
Castelo Branco, Humberto de Alencar,
14, 16, 17, 18, 149
Chamber of Deputies
under Military rule, 18, 20-2, 25-6,
28-9,33
under the New Republic, 47-8, 51,
53-4,57,64,66
the 1988 Constitution and, 172-6,
197-202
Centriio
activities of, 116-18
organization of, 113-15
opposition to land reform and, 115,
163-7
234
opposition to parliamentarism and,
ll5, 139-42
CGT (Central Geral dos
Trabalhadores), 15, 76, 77, 185
CLT (Consolidafao das Leis do
Trabalho), 76, 77, 104-5, 122-3,
124, see also labour
CNA (ConfederQfiio Nacional da
Agricultura), 81, 82, 150, 152
CNBB (Conferencia Nacional dos
Bispos do Brasil), 28, 35, 55, 58,
83,86,185
CNI(Confederafiio Nacional das
lndustrias), 79, 80, 82, 113, 140
CNRA (Canzpanha Nacional de
ReformaAgraria), 153, 154, 155
Congress
constitutional revision of 1993 and,
186-9
corruption and, 141, 189
amendment no.25 and, 55-7
amendment no.26 and, 57-9
under Military rule, 19-23
under the New Republic, 48, 51-3
reform proposals for, 36
under the 1988 Constitution, 120,
172-8
Constituent Assembly
Afonso Arinos Commission and,
59-60,91, 95
agenda of discussion, 87-8
composition of, 66-71
convocation of, 41-2,55
demands for, 30,34-8
elections for, 54
interest groups and, 74-87
operation of, 100-20, 129-45,
151-68
opinion profile of, 71-4
organization of, 46, 57-9,93-7
socioeconomic profile of, 69-71
constitution
definition of, 5
ofl946, 13-17,126,149
 Index
ofl967, 18,30
ofl988, 120,121,122,123,124,
170-80: revision of, 185- 9;
legitimacy and, 190-4; reform of
1995, 197-202
of 1988 v. 1967--69, 121-3
constitution-making, see constituent
assembly; see also constitutional
change
constitutional change
conditions for, 7, 9
dimensions of, 4-5
transition to democracy and, 5-7
types of, 7-8
CONTAG (Confedera~iioNacional
dos Trabalhadores da
Agricultura), 83, 149, 150, 152,
153, 154, 155, 157, 164, 165
COPAG (Commissiio do Plano de
A~iio do Govemo ), 44
CPT (Commissiio Pastoral da Terra),
83, 149, 152, 153, 154
Costae Silva, Artur, 18, 22, 23, 24,
149
Covas, Mario, 38, 98, 99, 113, 119,
129, 135, 137, 143, 145
CUT (Central Onica dos
Trabalhadores), 58, 75, 76, 77,
78, 185, 199
democracy
and constitutional change, 4-9
Constituent Assembly's models of,
101, 121, 131
definition of, 5-6
see also transition to democracy
Democratic Alliance, 33-4
and the Constituent Assembly, 36-8,
41-2,45-7
composition of, 47, 64
ideological and institutional basis of,
47-51
manifesto of, 40-2
performance of, 51-5,63
democratic consolidation, 6-7
constitution-making and, 190-4
DIAP (Departamento Intersindical de
Assessoria Parlamentar), 58, 75,
76
235
economic policy
and economic performance, 42-4
Cruzado Plan, 51, 53-5,61, 63-4
Neves' proposal for, 41-5
elections
control of, 23--6
liberalization and, 28-30, 32-4
ofl986,54,62-6
electoral system
under Military rule, 17-19, 23--6
reform proposals for, 38, 41, 56, 60
the 1988 Constitution and, 102, 121,
133, 175-8
exec uti ve-1egislati ve relations
under Military rule, 16, 19-20
reform proposals for, 38, 41, 56
the 1988 constitution and, 101,
131-3, 172-5
see also parliamentarism; presiden-
tialism
federal system
reform proposals for, 36, 38,41,72
the 1988 Constitution and, 103, 120,
121,124,179-80,200
FIESP (Federa~iio das lndl1strias do
Estado de Siio Paulo), 79, 80, 140
Figueiredo, Joao Batista de Oliveira,
22,23,24,31,33,48
Fleischer, David, 67, 70, 119
FNLI (Frente Nacional pela Livre
lniciativa), 79, 81, 114
Folha de Siio Paulo, 66, 67, 68, 109,
141
Franco, Afonso Arinos de Melo,
59--60, 109, 126, 136
Franco, Albano, 82, 113, 140
Funaro, Dilson, 52, 55
Geisel, Emesto, 14, 19, 22, 23, 24, 26,
27,28,29,30,31
Golbery do Couto e Silva, 26, 27, 32
Gomes, Severo, 99, 159, 160
Guimaraes, Ulysses, 34, 37, 48, 51, 52,
93,94,98, 119,135,140,142,
157, 158
IMF (International Monetary Fund), 43
236
INCRA (lnstituto Nacional de
Coloniza(:iio e Reforma Agraria),
150, 153
institutional acts, 13
Institutional Act no.l, 15
Institutional Act no.2, 16, 17
Institutional Act no.3, 17
Institutional Act no.4, 17
Institutional Act no.5, 14, 18, 19, 30,
35
Institutional Act no.9, 149
interest groups, 74-87, 196-7
business, 78-83
labour, 75-8
peasants, 83-4, 150
popular movements, 86-7
job security, 72, 77,104,115, 199,see
also labour
judicial power
under Military rule, 16, 30
reform of, 38,41
the 1988 Constitution and, 102
Kinzo. Maria D' Alva, 14, 35
labour
as interest group, 75-8
organization of, 75-6
participation in the Constituent
Assembly of, 75-8
rightsof,41, 104,105,122-3,124
the 1988 Constitution and, 104, 105,
124
Lamounier, Bolivar, 21, 25, 27, 28, 29,
38,56,57,126
land reform, 147-69
Constituent Assembly's debate on,
152-7
under Military rule, 149-50
movement for, 83-4
the New Republic's programme for,
147-50
proposals for, 41, 45,74
Lauren~o,Jose, 99,113,166
legitimacy
Cardoso's government and, 201
constitution-making and, 8, 37-9
Military rule and, 27-30
Index
the 1988 Constitution and, 170--2,
190-4
liberalization
Constituent Assembly and, 34-8
origins of, 26-8
see also transition to democracy
Lula (Luis lmicio da Silva), 31, 78, 172
Lyra, Fernando, 33, 95
Maciel. Marco, 34, 38, 48, 54, 64, 130
Magalhaes, Antonio Carlos, 34, 141,
201
Martins Rodrigues, Leoncio, 67, 69,
72, 73. 74, 167
MDB (Movimento Democratico
Brasileiro), 20, 28, 29, 31, 32, 34,
35,67
Medici, Emflio Garrastazu, 22, 23, 24
Military rule
Congress under, 19-23
constitutional and institutional
change under, 13-34
elections under, see elections
land reform and, 149-50
political parties and, see political
parties
and transition to democracy, 14,
26-38
Minas Gerais, 32, 33, 140, 141
MTRST (Movimento dos
Trabalhadores Rurais Sem
Terra). 83, 149
Neves, Tancredo
Constituent Assembly and, 37-8,
41-2,45-6,57,59,192
Democratic Alliance and, 33-4,
36-8,40-7,49,51
landreformand,41,45, 147,148,154
see also PMDB
OAB (Ordem dos Advogados do
Brasil), 28, 34, 55, 58, 86, 185
OCB (Organiza(:iio das Cooperativas
do Brasil), 81, 82, 150, 152
parliamentarism
Constituent Assembly's debate on,
37,39,137-9
 Index
floor voting on, 142-4
and the plebiscite of 21 April 1993,
180-5
proposals for, 36, 46, 71, 128-9,
roots of, 126-8
PCB (Partido Comunista Brasileiro),
56,64,65,68,69, 70, 71, 72, 73,
74, 100, 130, 151, 158, 167, 176,
177, 186
PC doB (Partido Comunista do Brasil),
56,64,65,68,69, 70, 71, 72, 73,
74, 100, 130, 151, 158, 167, 176,
177, 186
PDS (Partido Democratico Social), 20,
25,26,29,32,33,34,44,47,49,
50,53,63,64,65,66,67,68,69,
70, 71, 72, 73, 74,114,115,144,
151, 158, 167, 173, 176-7
PDT (Partido Democratico
Trabalhista), 31, 33, 63, 64, 65,
66 68, 69, 70, 71, 73, 74, 93, 144,
151, 158, 167, 173, 176-7, 186,
187,195,201
peasants
under the New Republic, 150
organization for Constituent
Assembly, 83-4
PFL (Partido da Frente Liberal)
Democratic Alliance and, 38, 42,
47-8,51-2
characteristics of, 48, 69-74
electoral performance of, 62-6, 173,
176-7
ideological profile of, 48, 68-9
leadership of, 34
performance in Constituent
Assembly of, 93-100, 142-4,
151, 167, 158
plebiscite
introduction of, 36, 101, 122
of21 April1993, 144--5, 180-5
PMB (Partido Municipalista
Brasileiro), 64, 65, 144
PMDB (Partido do Movimento
Democratico Brasileiro)
Democratic Alliance and, 33-4, 42,
47-8,51-2
electoral performance of, 26, 29,
62-6, 173, 176-7
237
ideological profile of, 66-9
leadership of, 33
origins and characteristics of, 31-2,
47-8,69-74
performance in Constituent
Assembly of, 93-100, 142-4,
151, 158, 167
Sarney and, 53-4
Tancredo Neves and, 49-51, 51-2
political parties
ideological profile of, 66-9, 194
under Military rule, 17, 20-1, 23,
25,31-2
under the New Republic, 47-53, 62,
74
and the plebiscite of 21 April 1993,
182
reform proposals for, 34,55-7, 178
socioeconomic profile of, 69-71
the 1988 Constitution and, 102,
174-8
popular participation
in the Constituent Assembly, 58-9,
86-7
the constitutional revision and, 185
PP (Partido Popular), 31, 32
presidentialism
Constituent Assembly's debate on,
101, 129-44
floor voting on, 142-4
and the plebiscite of 21 April 1993,
180-5
background of, 125-8
private property, 107, 152-4
PT (Partido dos Trabalhadores), 31,
33,38,42,55,58,63,64,65,68,
69, 70, 71, 72, 73, 74, 76, 78,86,
144, 151, 158, 167, 172, 173,
176-7,186,187,195,201
PTB (Partido Trabalhista Brasileiro),
32,33,63,64,65,66,68,69, 70,
71, 73, 74,114,115,144,151,
158, 167, 176-7
redistribution, social and economic, 44,
54
rights, bill of
the 1967 Constitution, 17, 121, 122
238
the 1988 Constitution, 104, 105,
121, 122, 124
Rio de Janeiro, 28, 32, 58, 63, 140
Rio Grande do Sol, 28, 58
Sao Paulo, 26, 28, 32, 58, 63, 140, 153,
201
Santos, Wanderley Guilherme dos, 21
Samey,Jose
Congress and, 55-9, 201
Constituent Aseembly and, 59-60,
94-5, 108, 110, 111, 114, 119
Democratic Alliance and, 33-4,
49-51,62-4
government of, 44,51-5, 150
the Military and, 84-5
presidentialism and, 110, Ill, 126,
128-9,130, 134-7, 139-44
the 1988 constitution and, 119, 172
Sayad,Joiio,44,52,53
senate
under Military rule, 19-23, 25, 29
under the New Republic, 47-8,
53-4,57,65,100,177
the 1988 Constitution and, I 0 I, 121
Index
SNI (Servi~o Nacional de
lnforma~oes), 18, 19, 84, 85
SRB (Sociedade Rural Brasileira), 81,
82, 150, 152
state intervention in economy
Constituent Assembly's debate on,
104-6, 121
constitutional revision and, 198-202
suffrage
Constituent Assembly's debate on,
103
under Military rule, 25
restoration of, 41,56
transition to democracy
and constitutional change, 5-7
and Military rule, 26-38
UBE (Uniiio Brasileira de
Empresarios), 79, 114, 139
UDR ( Uniiio Democratica Ruralista),
79,81,82, 150,157,164,165
unions, see labour
Veja,67, 71, 72,126,176,177,187