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Because of its troubled political history Brazil has had a number of constitutions. The most recent was ratified on October 5, 1988.
Contents |
Imperial Constitution (1824-1889)
The elaboration of the first Constitution of Brazil, in 1824, was quite difficult and the power struggle involved resulted in a long-lasting unrest that plagued the country for nearly two decades. Two major facts increased the troubles:
- Large numbers of recent immigrants from Portugal (the so-called "Portuguese Party"), who would wish to keep their privileges or were still loyal to the metropolitan government. These were found both among the wealthier parts of the population, as businessmen controlling Brazil's international trade, and the lower ones, as tradesmen and free urban workers (the Brazilian élite was mostly rural).
- The majority of the population was composed by slaves, prompting the whites to fear being massacred in the event of a rebellion caused by a failing state.
The first circumstance meant that despite strong support of the crown prince Pedro I by the Brazilian landowners (the so-called "Brazilian Party"), the opinions of the reinóis (name then given to people fresh from Portugal) should be considered. As each side had very distinct and different objectives none could prevail and a compromise was needed.
There were extra problems involved: the Constitutional Assembly had been elected to appreciate the applicability of Portuguese laws in Brazil, not to draft a new constitution. As a result, some of the Portuguese deputies refused to take part in it. On the other hand, some of the Brazilian deputies, the "liberal" ones, had been persecuted, some exiled others imprisoned. The Constitutional Assembly was, then, emptied of an appreciable number of opinions and would end reflecting the objectives of the "Brazilian Party", in detriment of the "Portuguese Party" and the liberals.
As the works progressed it became clear that the deputies were trying to establish a constitution that would:
- curtail the powers of the monarch,
- restrict most political rights to landowners and deny them to the Portuguese
- establish an authoritarian, but constitutional, monarchy, whose head of government would be an empowered prime minister.
The emperor wanted to remain an absolute monarch, wanted to protect the interests of the Portuguese businessmen (while possibly mending the relationship with Portugal in the meantime) and prevent any form of power transfer from himself to the Parliament.
In a quite predictable move, and in the light of the wave of conservatism led by the Holy Alliance, the prince used its influence over the Brazilian army to dissolve the Constitutional Assembly and imposed on the country a constitution that concentrated all powers on the prince himself (eventually crowned "Perpetual Emperor and Protector of Brazil").
The new constitution, published on March 25, 1824 outlined the existence of four powers:
- Executive — The State Council
- Legislative — The General Assembly, formed by the Senate and the Chamber of Deputies
- Judiciary — The Courts
- Moderator — Resolve any incompatibilities between the other three
The Emperor was the Moderator Power and controlled the Executive by indicating the members of the State Council, influenced the Legislative by being allowed to propose motions and having the power to dissolve it and also influenced the Judiciary, by appointing (for life) the members of the Highest Court.
This constitution established the Brazilian Empire as a Unitary state (the provinces had little autonomy, if any).
Old Republic Constitution (1891-1930)
After the fall of the empire, no provisional constitution was used while a definitive one was being written. The new constitution was written by the a group of jurists and politicians and later amended by a Constitutional Congress on February 24, 1891.
Meant to incorporate the basic principles of the Constitution of the United States, with the convenient exception of most liberal principles and the adoption of a slightly different (and somewhat lesser) form of federalism, this constitution was the first to provide modern institutions, capable of backing the country's economical evolution.
The main traits of the constitution were:
- Strong centralism (but not as strong as in the Imperial Constitution).
- Adoption of basic individual rights for the citizens, among them the habeas corpus.
- Adoption of the standard tripartion of power
- Creation of institutions (like National Guard) to accommodate the rural élite (more or less like the ranks of nobility issued by the Empire) and provide it with legal paramilitary powers to enforce their interests.
Third Constitution (1934-1937)
- See also: Estado Novo (Brazil)
The shortest-lived Brazilian constitution was promulgated on July 16, 1934, four years after a coup d'état had overthrown the Old Republic. President Getúlio Vargas had planned to become a dictator, but the élites (the same who had controlled the state ever since independence) had struggled to prevent this. Vargas managed to overcome this opposition by accepting this constitution and succeeded in being indirectly elected president for another four-year term ending in 1938. Later this would prove to be a mere distraction, while Vargas gathered forces to pull down the institutions and make of himself a dictator with fascist characteristics.
Despite its short life, this constitution was important because it was the first time a Brazilian constitution was written from scratch by directly-elected deputies in almost fair multi-party elections. As a consequence of this, it incorporated a number of improvements to Brazilian political, social and economical life:
- Perfected the independence of the Supreme Court and put all Judiciary branches under its control
- Extended political rights to all adults, regardless of sex.
- Created a Judiciary branch to supervise elections (Justiça Eleitoral), under the control of the Supreme Court
- Created a Judiciary branch to supervise working conditions and codified rights and duties for both the employers and the employees (Justiça do Trabalho)
- Was the first Brazilian constitution to list all four basic freedoms (speech, religion, movement and assembly) alongside the basic rights (life, freedom and property).
"Estado Novo" Constitution (1937-1945)
- See also: Estado Novo (Brazil)
The so-called Polaca ("Polish") Constitution was created by Vargas the same day he overthrew the institutions and established himself as a dictator (the short interval suggesting that he had had plenty of time to prepare the conspiracy). It was written by the minister of Justice, Francisco Campos, and proofread by Vargas and his minister of War (joint-commander of the Army and Air Force), Eurico Gaspar Dutra.
Inspired by the Polish April Constitution, of 1935 it was intended to consolidate the powers of the president, in detriment of the Legislature, and to diminish the attributes and autonomy of the judiciary. It was not, however, intended to be completely totalitarian and repressive. It kept most social improvements of the previous constitution, and added more: The right to education, the right to culture preservation and guidelines for family rights, building on the Civil Code of 1917.
On the other side, however, it was heavy in concentration of executive power:
- Political parties were dissolved
- State "presidents" (elected) would be replaced by "interventors" (appointed by the president of the republic)
- Mayors would in their turn be appointed by the interventors
- Capital punishment was to be enforced on traitors to the state (a fairly broad category)
- All requirements for an outright dictatorship (censorship, purges, militarism, state propaganda, cult of personality and others) were either required, allowed or not forbidden by the constitution
Under this constitution Brazil shifted towards fascism and if not for American threats could have entered the World War II siding with the Axis.
Fifth Constitution (1946-1967)
When Vargas was forced to resign in 1945, a new constitution was written, once again by a directly-elected Constitutional Congress. This was the first Brazilian constitution to provide full political freedom (even the Brazilian Communist Party was made legal, though briefly) and the last to officially name the country Estados Unidos do Brazil (and the spelling of the country's name would change later that year). It was also the first with an additional "Act of Transitory Measures" (a set of laws that should come into effect before the constitution itself and could not be changed).
The key points of this constitution were:
- Restore all rights and freedoms as expressed by the 1934 Constitution which had been suppressed in 1937
- Establish full equality before the law
- Created mechanisms to prevent and fight religious prejudice and censorship (the latter with some exceptions regarding moral censorship of spectacles and public shows)
- Mentioned the right to postal privacy and the inviolability of homes (until then police could break into anyone's house without a permit)
- Improved federalism by extending the powers of the member states (for instance, it was the first time states were allowed to have flags and anthems)
- Although it was not the first time all adults were granted full political rights, it was under this constitutional that the first free (and quite fair) elections were held at all levels and for all offices
- Elections for executive offices would be held in a single turn
- Voters could freely choose candidates of whatever party, including for vice president and vice governor
The last two would become the major problems of this constitution, as they were prone to produce and fuel both legitimate crises (as the presidents were usually elected by less than the majority of the votes) and conspiracies (as the vice-president was usually from another party).
Sixth Constitution (1967-1988)
After the coup d'état of April 1st 1964 the controllers of the new régime kept the 1946 constitution and promised to restore democracy as soon as possible. However, they eventually did not and were faced with a dilemma, as every measure they took was strictly against the current constitution, including the coup itself.
The so-called Institutional Acts issued by the president were, in practice, placed higher than the Constitution and could amend it -- but they were not foreseen in the constitution, which made them illegal.citation needed
In 1967 the situation had come to a point that was unbearable: the military could not keep the farce of democracy any more and was eager to enable itself with "proper" laws to fight subversivos (anyone that opposed the régime). The constitution was denounced as "obsolete" as the "new institutions" were not foreseen in it.
A new constitution was written by a team of lawyers commissioned by Marshall Humberto de Alencar Castelo Branco, then president, amended (under the instructions of Castelo Branco himself) by the minister of Justice, Carlos Medeiros Silva and voted as whole by the Brazilian Parliament (already purged of most opponents of the status quo).
The main features of the new Constitution were:
- Restriction of political rights: free elections would only be held at state and county level, but not in federal territories or cities considered as of interest of national security for whatever reason (such cities were specified as those lying by the international border, state capitals, "important" industrial centres, university towns, jungle towns, towns close to power plants, mining sites, etc). About 500 cities/towns were listed, the largest and most important ones.
- Restriction of civil rights: any meeting, assembly or gathering of people should be formal, must be previously authorised and conducted under supervision. Unauthorised meetings would be disbanded by the police and participants sued (if lucky; they were more likely imprisoned or worse).
- Creation of a military police to patrol the cities and "provide public security", reducing the autonomy of the existing civilian police. Although Brazil was re-democratized, the situation continues to this day (currently even Brazilian firefighter services are subordinated to the military).
- Removal of all privileges of judges, allowing the president to force them to retire or to remove them (the latter never used).
- Disbanding of all political parties (which had existed for only twenty years) and creation of a bipartisan system comprising the official party, Aliança Renovadora Nacional -- Arena (National Renovating Alliance), and the controlled opposition of the Movimento Democrático Brasileiro -- MDB (Brazilian Democratic Movement).
- Creation of an indirect election system ("Colégio Eleitoral") to choose the president.
- Limitation of federated states' autonomy.
- Establishment of a series of controls, commissions and institutions to regulate and report a number of aspects of civil, social and economic life, thus intensifying an already existing trend towards bureaucracycitation needed that would greatly hamper the Brazilian economy in the future.
- Granting the president the right to issue decrees (Decretos-Lei) that would be binding after 30 days if the Congress "did not have the time" to vote them.
In 1969 this already very restrictive Constitution was widely amended by a Junta and made even more dictatorial. The 1969 Amendment is sometimes regarded as another Constitution. It brought some extra tools for the régime:
- State of emergency
- Capital punishment
- Exile as punishment
- Suspension of habeas corpus
- Special military courts to try members of the military accused of crimes
- Transfer of command of the military police from each federal state to the Ministry of the Army
- Restrictions on travel
This constitution slowly faded out, altered by a series of amendments as the régime liberalised, until it was finally replaced by the current one.
Citizen Constitution (1988 - Present)
The seventh and current Brazilian Constitution was promulgated on October 5, 1988 after a two-year process in which it was written from scratch by a Constitutional Congress elected in 1986. It appears as a reaction to the period of military dictatorship, seeking to guarantee all manner of rights and restricting the state's ability to limit freedom, to punish offences and to regulate individual life. On the other hand, it did not provide clear rules for state reform and kept the economic regulation of the country intact. In the following years, especially from 1995 onwards, this constitution had to be amended many times to get rid of obsolete, contradictory or unclear provisions (but also to accommodate the economic reforms conducted by the government, for which such amendments have been sometimes criticised). As of July 2007 this Constitution has been amended 53 times.
Among the new constitutional guarantees are the errand of injunction and the habeas data (one's right to have access to any data about him kept by the Government). It also preconised the existence of a Consummers' Defence Code (which was brought out in 1990), of Children's and Youth Code (1995) and of a new Civil Code (2002).
It was the first constitution to demand that the breaching of civil liberties and rights is to be punished severely. As a result of this, Brazil would later approve a law making propagation of prejudice against any minority or ethnic group an unbailable crime. This law provided legal means to act against those who spread hate speech (like Neo-Nazis) or those who do not treat all citizens equally. This second aspect helped disabled people to have a reserved percentage of jobs in the public service (and soon in all large companies), and black people to seek reparation for prejudice in the courts.
Breaking with the authoritarian logic of the Constitution of 1967, it made unbailable crimes those of torture and of actions directed against the democratic state and the constitutional order, thus creating constitutional devices to block coups d'etat of any kind.
Willing to create a truly democratic State, the Constitution has established many forms of direct popular participation besides regular voting, such as plebiscite, referendum and the possibility of ordinary citizens proposing new laws. Examples of these democratic mechanisms were the 1993 plebiscite concerning the form of government, where the Presidential system was confirmed, and the 2005 Referendum concerning the prohibition of the sale of firearms and ammunition.
The mention of God in the preamble of the Constitution (and later on the Brazilian currency) was opposed by most leftists as incompatible with freedom of religion because it does not recognise the rights of polytheists (like the Amerindians) or atheists, but it has not been removed so far. The only State Constitution that does not refer to God is the one of Acre. The Supreme Federal Court decided that this was not unconstitutional.
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