30 years of the Constitution and the Brazilian Presidential Election: The Challenge of Preserving Democracy

Manuelita Hermes Rosa Oliveira Filha

Federal State Attorney

After celebrating the thirtieth anniversary of the Constitution, approved in 1988, there was a very big task for the Brazilians: elect a new President. This was the challenge the country faced a few days ago. This is no ordinary election: the president-elect, Jair Bolsonaro, has raised concerns of a collapse of democracy. 

Brazil, in the course of its history and of the evolution and involution of its political-juridical order, has possessed numerous constitutions, of monarchical, authoritarian and democratic characters. Following the imperial Constitution of 1824 and the first federal republican Constitution of 1891, the Constitution of the Republic of the United States of Brazil 1934 established the Electoral Justice as an organ of the Judicial Branch, listed political rights, among them the rights for women to vote, besides presenting, influenced by the German Constitution of Weimar, a title about the economic and social order. 

The twentieth century witnessed a revolving door of democratic and dictatorial rule. The dictatorial Constitution of the United States of Brazil, adopted in 1937, extended the powers of the Executive Branch; the Constitution of the United States of Brazil, promulgated in 1946, reestablished democracy; the Constitution of Brazil of 1967, adopted three years after the military coup d’état of 1964, was inspired by the political charter of 1937. Constitutional Amendment No. 1 – which was, in effect, a true constitution – granted the Constitution of the Federative Republic of Brazil on October 30, 1969, which put many of the military government’s repressive policies into effect.   Finally, following 21 years of military rule, the Constitution of the Federative Republic of Brazil was promulgated on October 5, 1988, drafted by a free and sovereign National Constituent Assembly.

As shown, the country had two formal constitutional charters of dictatorial nature, those of 1937 and 1967. The latter emerged from configurations of great political instability took shape as of 1963, which led to a military coup in 1964, once again establishing a dictatorship in Brazil.  Through the so-called Atos Institucionais (AI) [Institutional Acts], Army, Navy and Air Force commanders emptied the contents of the 1946 Constitution, which was only formally maintained until January 24, 1967, when another dictatorial Constitution was adopted.

After a gradual political, and, as a result, juridical opening that started at the end of the 1970s, the first meeting of the National Constituent Assembly took place on February 1st, 1987. Its fruit was the promulgation, on October 5, 1988, of a new Constitution. Therefore, the 1988 Constitution – CF/88 – is the current political charter in the Brazilian State. Democracy was, finally, (re)constituted. Consequently, the period called “New Republic” was established and a broad range of fundamental rights was envisaged. Given the Constitution’s clear (re)democratic character and contribution of norms that seek to promote citizenship, Ulysses Guimarães, the President of the National Constituent Assembly, called it “the citizen constitution.”   

There was a clear direction of the Constituent Assembly towards promoting citizenship, human dignity, and the social values of work into the foundations of the Brazilian Democratic State of Law. This reveals the nature of the constitution and establishes an interpretative focus indispensable to its application.

The Brazilian Federal Constitution established a new regime that have allowed, for instance, democratic elections and two presidential impeachments (former Presidents Fernando Collor de Mello in 1992 and Dilma Roussef in 2016). Moreover, there has been a strengthening of fundamental rights (including in some cases by constitutional mutation through the judicial reasoning of the Federal Supreme Court)– issues including the possibility of abortion in cases of anencephaly (ADPF 54 case; the grant of equal rights to same-sex unions and stable unions between a man and a woman (ADI 4277 and ADPF 132 cases); the allowance of research on embryonic stem cells (ADI 3510 case); and, finally, the Operation Car Wash, that investigates structural corruption involving private, political and economic systems and authorities, including the former Presidents Luis Inácio da Silva (Lula) and Dilma Roussef.    

This is the background to the presidential election of October 2018. The candidates that emerged from the first round on 7 October were Jair Bolsonaro, from the Social Liberal Party (46.03% - 49.276.990 votes), and Fernando Haddad, from the Workers Party (29.28% - 31.342.005 votes). The candidates’ government proposals are still online to consult: Jair Bolsonaro; and Fernando Haddad. The second round of the elections took place on October 28th. Jair Bolsonaro won with 55.13% of votes followed by Fernando Hadad with 44.87%.

During this pressing time, in sum, Brazilians had to make a choice between on one hand, a right party with a former army captain candidate who has proposed conservative reforms and shown an aggressive speech and behavior during the election campaign, mainly against minorities. On the other hand, to keep faith in a populist left party that once represented the hope of social growth and economic prosperity but disappointed the electorate due to involvement in corruption scandals and, consequently, imprisonment of its great symbol of leftist leadership – Lula.

In addition, in the twenty-first century, the country is facing the emergence of the negative effects of social media, in a time where information can be spread so easily by not only computers and laptops, but also by smartphones, with tools, apps and groups, which are in many occasions controlled by political parties or dominated by private interests. The spread of fake news has served to maximize the divergences in a society that is already utterly polarized. This kind of (mis)information has played a role in transforming what was supposed to be a positive beginning of a kind of participative social forum (in order to promote the so-called e-democracy as an instrument to enhance democracy as a substantive value) into an arena of hate speech, intolerance, and extremism. 

Furthermore, there is the creation of satirical characters of electors and candidates in a society that can be defined by Mario Vargas Llosa as la civilización del espectáculo (civilization of spectacle), mainly considering its histrionic talent: “una comedia de fantoches capaces de valerse de las peores artimañas para ganarse el favor de un público ávido de diversión” (a comedy of puppets capable of using the worst tricks to win the favour of an audience hungry for diversion).

Besides this general context, what is most worrying is the lack of certainty concerning the consequences of the victory. Indeed, there is the risk of the collapse of the democracy. In fact, the possibility of being part of a process of flourishing of illiberal democracies is not remote. Brazil is able to be part of a phenomenon that includes the arising of the manipulation (or even erosion) of democratic institutions, populist leaders, incendiary language, authoritarianism and lack of a reasonable debate.

Presently, some Brazilians fear a step backward: dictatorship. Others, due to or despite of the lack of clear information about that time, desire it. For some, economic growth is worth any price. 

Absolutely not. The absence of democracy in Brazil is worth remembering: from March 31, 1964 to the beginning of the eighties (beginning of transition to the democratic regime), the Military Junta established by AI-12 on August 31, 1969, and Constitutional Amendment No. 1 of October 20, 1969, stand out. There was a general disregard for fundamental rights, characterised, in short, among other acts that delineated the conflict, by: strengthening of the Executive Branch; weakening of the Legislative Branch, including suspension of parliamentary immunities and closing of the National Congress; transfer of competencies from the Judicial Branch to Military Justice; establishment of incommunicado detention of prisoners and failure to comply with the principle of adversary proceedings in police investigations; suspension of political rights; persecution and repression of opponents to the authoritarian regime; extinction of the multiparty system, reducing former parties to just two; suspension of habeas corpus for those accused of crimes against national security; armed struggle, including with summary executions, bombing of the US consulate in Sao Paulo, assaults and torture (often carried out to the death); censorship of the media and art; kidnapping of diplomats for exchange for political prisoners; provision of penalty of banishment of the Brazilian territory for inconvenient, harmful or dangerous Brazilians (AI - 13) and application of death penalty for cases of “external, psychological, adverse, or revolutionary or subversive warfare” (AI – 14).

All of that should have made people effectively reflect about the future of the country. In Brazil, democracy is still a recent reality provided by the Constitution. Its thirtieth anniversary must not be the last one.

Doubtlessly, Brazilians took a clear decision. While waiting for the President’s first acts, the only statement one can surely make is that this was an election based on fear. 

Manuelita Hermes Rosa Oliveira Filha is a Federal State Attorney, with a Master in Law in Contemporary Legal Systems (Università degli studi di Roma Tor Vergata); Specialization in Constitutional Justice (Università di Pisa); and Specialization in State Law (Universidade Federal da Bahia). 

Suggested Citation: Manuelita Hermes Rosa Oliveira Filha, ‘30 years of the Constitution and Brazilian Presidential Election: The Challenge of Preserving Democracy’ IACL-AIDC Blog (2 November 2018) https://blog-iacl-aidc.org/blog/2018/11/2/30-years-of-the-constitution-and-the-brazilian-presidential-election-the-challenge-of-preserving-democracy