Brazil’s Constitutional Dilemma in Comparative Perspective: Do Chile and Spain Cast Light on the Bolsonaro Crisis?
Introductory Note: This is an expanded version of an essay written by Bruce Ackerman, Sterling Professor of Law and Political Science, originally published in Portuguese by the Correio Braziliense on Monday, July 13, 2020. is an English translation.
The present essay provides a comparative perspective on Brazil’s current crisis, and provides a global audience with a more detailed account of its constitutional development over the past forty years.
Brazil needs a new Constitution. Increasing numbers of Brazilians are losing faith in the system established in 1989. The political corruption revealed in the Car Wash scandal, culminating in Bolsonaro’s dictatorial and incompetent response to the Coronavirus crisis, have led ordinary citizens to fear that Brazilian democracy has no future.
The best way to respond to escalating political alienation is to convene a new Constituent Assembly in 2023. Once elected, the delegates should reconsider key decisions by the Assembly of 1988, and see how they have, over the decades, generated the current crisis of public confidence.
So let us turn back the clock to 1988, and consider how the current Constitution emerged as the Constituent Assembly met in the aftermath of President-elect Tancredo Neves’ tragic death. His departure from the scene precipitated a bitter power struggle between the military backers of acting President Jose Sarney and the mobilized center-left opposition to the established regime.
This grass-roots movement for democracy managed to form a broad coalition despite disagreements on other key issues. Leftist movements led by Leonel Brizola’s Democratic Labor Party and Lula’s Worker’s Party advanced a vision of strong social democracy that contrasted sharply with the centrist-liberal program advanced by Fernando Henrique Cardoso and other leaders of the Social Democratic Party. Nevertheless, they did not allow their ideological disagreements prevent them from creating a united front demanding an immediate end to military rule. Given their broad popular support, the center-left was in a powerful position to defend the Constituent Assembly’s political independence against Sarney and the military junta.
For example, the military had originally planned to draw up a Constitution in secret, and then require the Assembly to approve it without giving its members any time for independent deliberation. Since the supporters of the old regime had a strong majority in the Assembly, the Generals’ strategy looked quite realistic.
But they retreated when the minority of center-left delegates threatened to mobilize their followers in mass demonstrations to back up the Assembly’s right to make up its own mind about Brazil’s constitutional future. The center-left coalition then organized a nation-wide series of popular consultations, which culminated in the presentation of the first serious draft to the Assembly: “Leftist Project A,” as it was called, advanced- a series of strong constitutional commitments to social and economic justice. Project A’s central target, however, was the system of presidential government that the military had used to maintain its grip on power over the previous two decades. The draft proposed the immediate replacement of presidential government with a parliamentary system as the framework for Brazilian democracy.
As soon it was publicly announced, Project A predictably generated intense opposition from Sarney and his military backers. But it was also unacceptable to the centrists of the Social Democratic Party for a very different reason. While they backed a parliamentary system, they considered Project A’s strong leftist commitments too extreme for their more moderate views.
Given the split between left and center, the democratic movement had little choice but to reach a “compromise” with Sarney on the presidency. On the one hand, the two sides agreed to preserve the status quo for the next five years. On the other hand, the Compromise Constitution provided for a special plebiscite in 1993 to enable citizens to decide whether the parliamentary system should become the permanent framework for Brazilian democracy.
When the democratic reformers accepted this compromise in 1988, they remained committed parliamentarians, and expected to win the 1993 plebiscite, since Sarney and his Democratic Movement Party was rapidly losing electoral support.
But when 1993 arrived, another accident of history proved decisive. After winning the first free presidential election in 1990, Fernando Collor was engulfed by corruption scandals that led to his impeachment and replacement by Itamar Franco, a man of indisputable personal integrity. When Franco took office in 1992, the general public was celebrating the “success” of the Compromise Constitution in enabling him to restore the integrity of Brazil’s transition to democracy.
It is not surprising, then, that voters overwhelmingly endorsed presidentialism in the 1993 referendum—despite the continuing commitment to a parliamentary system by leading centrists. Moreover, the wisdom of the 1993 plebiscite seemed to be confirmed by the subsequent presidential victories of Cardoso and Lula—two serious statesmen who had played central roles in Brazil’s repudiation of military rule. Dilma Rousseff election as the first female President of the Republic seemed to vindicate the Compromise Constitution once again as another time-tested leader took the helm.
And yet, Dilma’s victory served as the prologue to the last five years of popular disillusionment—as the public witnessed her impeachment and her replacement by the notoriously corrupt Michel Temer. Worse yet, it is perfectly clear that President Bolsonaro he will use his power to guarantee that Temer and his associates to escape all legal responsibility for their abuses of power in office.
The resulting popular demoralization in 2020 would not have surprised Cardoso and Brizola and Lula in 1988. They repeatedly predicted the very scenarios which have played out over the past decade.
The ideological polarization of contemporary Brazilian politics only serves to reinforce their grim predictions of 1988. A simple mathematical example will illustrate the key point. For this purpose, allow me to suppose that the Brazilian electorate is split into five factions of roughly equal size: the Radical Left, the Center-Left, the Centrists, the Center-Right and the Radical Right. Under a parliamentary system, the leader of the Center’s political party will typically join with the Center-Left and the Center-Right to form a governing coalition.
In contrast, as the election of 2018 shows, it is all too easy for a candidate from the Radical Right to win the presidency even though he has the strong support of only 20 to 25 percent of the electorate. It follows that, if the Constituent Assembly of 2023 adopts parliamentarianism, and the voters approve it, the new Constitution will greatly reduce the risk of Extreme Right—or Extreme Left—power-grabs in the future.
My new book in comparative constitutional law, Revolutionary Constitutions, points to real-world case studies that further support my argument for parliamentarianism. Spain’s transition to democracy in the 1970s is particularly relevant. Like Fernando Henrique Cardoso, Adolfo Suarez emerged from Franco’s political party, but repudiated the hard-liners who wanted to continue Franco’s dictatorship after his death. Like Cardoso, he reached out to form a broader coalition that included the Communists as well as the Roman Catholic Church. But unlike Cardoso, Suarez maintained his alliance with the left long enough to gain broad popular support for a parliamentary system—and one which, despite the rise of Right and Left extremism in contemporary Spain, remains under centrist control. Perhaps Brazilians of today should follow the parliamentary path adopted by their Spanish predecessors?
It will be the task of the Constituent Assembly of 2023 to confront this question. If delegates are to take it seriously, however, their relationship to the Brazilian government elected in 2022 should be clearly defined.
To see the problem, consider that the winning presidential candidate in 2022 will be confronting enormous economic and social problems left in the wake of the Coronavirus crisis—even if we assume that an effective vaccine has been distributed throughout the country within the next three years. If members of this government are also allowed to serve in the Assembly, they will predictably oppose serious consideration of parliamentarianism and devote their energies to strengthening the power of the recently elected president—leading to further extremist victories in the future.
From this vantage point, the debate currently taking place in Chile is of great significance. In response to recent popular mobilizations, the government has agreed to convene a new Constituent Assembly over the course of the coming year. Controversy is currently focused on the manner in which Assembly delegates will be chosen.
There are two options under consideration. In one, only half of the constituent assembly will be popularly elected; the other half will be selected by the current regime; n the other, the entire assembly will be directly elected by the voters. If Chileans adopt the second option, the resulting debate cannot help but illuminate the issues confronting Brazil in the aftermath of the Bolsonaro catastrophe. As Chile’s popularly elected Assembly considers replacing their own presidential system, their neighbors should be paying close attention to the debate, and consider whether they too should convene their own Constituent Assembly in 2023 to reassess the Compromise Constitution of 1989.
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University, and the author, most recently, of Revolutionary Constitutions (Harvard:2019). He gratefully acknowledges the exceptional research assistance provided by Ana Beatriz Vanzoff Robalinho Cavalcanti, presently enrolled as a doctoral student at the Yale Law School.