1988 Brazilian constitution and its authoritarian legacy: Formalizing democracy while gutting its essence, The

Journal of Third World Studies, Spring 1998 by Zaverucha, Jorge

By Jorge Zaverucha*

[E]very state [has] a constitution, but only some states [are] constitutional G. Sartori

INTRODUCTION

Between 1964 to 1985 Brazil experienced its longest military regime in history. The authoritarian regime enacted a new Constitution in 1967 and amended it in 1969 in a state-centered approach that enshrined the doctrine of national security. In 1988, as part of Brazil's negotiated transition from authoritarianism to democracy, a Congress Constituent Assembly2 passed a new Constitution that came to be called "Citizen Constitution" (Constituicao Cidad). It quotes the word "rights" much more frequently than the word "duties." This Constitution offers the right to work, the right to a decent wage, the right to education, the right of vacation, the right to social security, the right to maternal and paternal leave, the rights of Indians to have land etc.3

Although many aspects of the Constitution were advanced and progressive, such was not the case when it came to civil-military issues.4 The Constitution maintained many undemocratic military prerogatives which existed in the previous authoritarian constitution, and even added some new ones. In Brazil in 1988, politicians failed to firmly question their country's deep legacies of military rule.5 What's more, civilians formalized the military's prerogatives constitutionally, giving the military's sweeping powers a democratic veneer. Procedurally, the process of writing the Constitution was democratic. However, the essence of the outcome was not.

The present article has two main aims: (i) to discuss the undemocratic nature of many of the Brazilian military's constitutional and extra-constitutional prerogatives, and (ii) show how this situation makes attempts to consolidate democratic civil-military relations quite difficult.6

Given de facto acceptance of the status quo on the part of Brazil's highest-ranking democratic leaders, one can even question whether there has been a serious attempt to consolidate democratic civil-military relations in Brazil.7

BRAZIL'S AUTHORITARIAN REGIME AND THE TRANSITION TO CIVILIAN RULE

On March 31, 1964, the Brazilian Armed Forces (BAn stepped into politics by toppling the democratically-elected regime of President Joao Goulart. Before 1964, the military would intervene in politics at the behest of civilian groups who could use the military to defeat their rivals. Pre-1964 interventions have been described in functionalist terms. Alfred Stepan, for example, argues that the military fulfilled the role of a "moderating power."s The armed forces' function was to reestablish order and later give power back to the politicians. Indeed, in Brazil, each previous "moderating intervention" was used by the military to update information about civilian behavior and to build its own political alternative.

In 1964, the pattern changed. Civilians who thought that the military would make another surgical intervention, restore the old order, and then go back to the barracks, miscalculated. The BAF not only did not return to the barracks, but also ended up seizing and holding power for twenty one years, a record in Brazilian history. In 1964, the BAF intervened because they felt more confident about their collective organization, because they perceived civilian power to be crumbling, and because they thought that they were able to run the country. These three facts together induced the military to play their game rather than strictly defending someone else's interest.

As time passed by, Brazilian politicians learned that the protection offered by the military against the leftist menace was too costly: In the short run they could not regain their power lost during the inauguration of the 1964 regime. Entrepreneurs also learned that the coup served the interests of capitalism but not necessarily the interests of capitalists. The military created many state enterprises, harming those with market-oriented interests.

The loss of allies in the civilian sector and internal military rivalries between the "professionals" and the "intelligence community" led GeneralPresident Ernesto Geisel to decide to open the regime in a slow, gradual and secure way, starting from 1974.9 Brazil began its notoriously protracted transition. Only in 1985 was Jos6 Sarney indirectly elected president. Sarney's interim government lasted a whole mandate.10

In 1985, the Electoral College, an institution controlled by the authoritarian regime, elected Tancredo Neves as president. His running mate was Jose Samey, who six days earlier had been the president of a political party, PDS, that supported the military's regime policy in Congress.il During the presidential inauguration, Tancredo Neves became gravely ill and died. Since Neves never assumed the presidency, the discussion floated around whether the vicepresident should be empowered, or whether the president of the Chamber of Deputies, Ulysses Guimarhes, should assume the presidency. Mr. Guimarges was a strong advocate of the end of the military regime and strove for direct presidential election amendment.lz Mr. Samey, who had backed the 1964 coup, staunchly opposed any direct presidential election amendment.