Constitution Writing & Conflict Resolution
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Brazil 1988

The Brazilian Constitution of 1988 replaced a text drafted under the military regime in 1967. The military allowed the election of a civilian president in 1985 (although by an electoral college, ignoring demands for direct elections). Tancredo Neves, who promised a new constitution during his campaign, was elected president. When Neves died before his inauguration, Vice-President-elect Jose Sarney became president. He promoted an amendment to the existing constitution that conferred constituent authority on the regular legislature that would be elected in 1986. This amendment was considered and approved by the 479-member Chamber of Deputies and the 69-member Federal Senate in accordance with the existing constitution.

The main authority over the text of the constitution were the 559 senators and deputies sitting together in one body as the National Constituent Assembly (NCA) in Brasilla, while continuing to meet separately to consider regular legislation. The NCA spent two months debating its rules of procedure. It decided to start from scratch, dividing itself into 8 thematic committees and 24 subcommittees to develop the initial language. Each party received seats on the committees in proportion to their strength in the assembly. The subcommittees were required to solicit public comment and hold hearings; thousands of suggestions were received. The proposed language developed by the thematic committees was then given to the 93-member Systematization Committee, which included all parties in the assembly, to be fashioned into an integrated draft that became the basis for debate by the whole assembly. The initial rules of the assembly made it difficult to change provisions in the Systematization Committee draft. Many members, however, felt that the committee had been politically skewed to the left. They formed a blocking coalition, the Centraõ, which secured a rule change making amendments less difficult. The deliberations of the full assembly were largely open; a small scandal erupted when a photographer caught assembly members voting for absent colleagues.

The only requirement for ratification was approval by an absolute majority of the NCA. The entire process in the assembly took 19 months. Overall, the process had a high degree of legitimacy and public involvement. The large size of the assembly, the use of thematic committees, and the decision to proceed without an initial draft, however, led to a long, unwieldy, and sometimes inconsistent document that required over three hundred implementing laws to give force to its provisions.

Notes: The choice of forum for writing a new constitution was controversial; many wanted a specially elected constituent assembly that would operate in parallel with the regular legislature.

 

 

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