—Luiz Guilherme Arcaro Conci, Pontifical Catholic University of São Paulo; João Vitor Cardoso, University of Chile; Estefânia Maria de Queiroz Barboza, Federal University of Paraná; Glauco Salomão Leite Correio, Federal University of Paraíba; and João Paulo Allain Teixeira, Federal University of Pernambuco
In his analysis on the backsliding of Brazilian democracy, Professor Bruce Ackerman not only speculates about what sort of outcome is likely to succeed the Bolsonaro government, suggesting what kind of constitution drafting process the country should adopt in order to redeem itself, in reference to Chile, but also goes one step further by suggesting that Brazil should adopt parliamentarianism, in reference to the Spanish model. Yet, given that a fair amount of democracy monitors have been noticing that the number of robust democracies is going down in the last 10 years, Brazil is not peculiar within this context. Maybe Tom Ginsburg is right and “our era is one of democratic backsliding.”[1]
In turn, following Ackerman’s rationale, we should expect a new wave of constitutions worldwide, but this seems not to be the case. Moreover, the defense of parliamentarism, without considering the malaise in representation, the party system and the functioning of institutions in Brazil, seems to be futile. Thus, before tackling the consequences of Bolsonaro’s election, any analysis on the backsliding of the Brazilian democracy should start by questioning what happened. And the answer to this question is that there is a structural problem that Professor Ackerman fails to account for: traditional political parties are falling apart in Brazil to the extent to which it is hard to form stable and enduring coalitions. Besides, constitution-making models are not in themselves decisive, and in any case seem to be path determined.[2] Against this backdrop, we shall demonstrate, in disagreement with Ackerman, why neither Chile nor Spain are useful cases for us to think about Brazilian constitutional deadlock.
Presidentialism or the Brazilian Party System: What is the Cause of the Problem?
Instead of being inspired by the various options made by other presidential systems in Latin America, which adopted parliamentary elements in their operation,[3] the Brazilian Constitution maintained the presidential model previously existing, on the one hand, but increased the demand for a coalition government, on the other. However, this type of coalition required governments to live along with the instability of a more fragmented party system, and in crisis moments, this fragility ended up leading to the impeachment of two elected presidents: Fernando Collor de Mello, in 1992, and Dilma Rousseff, in 2016. Such political instability made presidential impeachment processes a solution to any political or economic crises, distorting the constitutional function of impeachment.[4] Moreover, the Brazilian political regime is known as hyper-presidentialist, insofar as the president’s political figure is strong enough to oppose and win battles against parliament. Although this model marks the Brazilian transition to democracy, it also appeared during the dictatorship, which concentrated more powers in the executive branch. Thus, although the 1988 Constitution modified the previous one concerning the protection of rights, it did not change substantially the organization of powers established by the 1967 Constitution.[5] Amid the presidential formal prerogatives, we can mention the power of exclusive initiative over the budget; the proposal of constitutional amendments to the congress; the imposition of urgency concerning government projects upon congress; the ability to issue a line item veto of particular provisions of bills passed by the legislature; the ability to file actions related to abstract constitutional control by the Supreme Court; the power to issue “provisional measures,” which are urgent law-making decrees, etc.
Such prerogatives brought about an impressive increase in the government intrusion within the legislative branch, leading the congress to reform the Constitution in order to constrain the excessive use of provisional measures by the president (Thirty-second Amendment Act, 2001).[6] With the prohibition of the reissue of expired provisional measures and the decrease in the number of matters that could be regulated through it, the tacit legislative delegation whereby the president used to take congress’ place in vast fields of legislation was brought to an end.
One of the leading political players who conducted this process was the party system. The strengthening of political parties stems from a long process of fragmentation and multiplication of political parties, reaching twenty-four parties currently represented in congress, in addition to another extant eleven without any representative. However, this ended up strengthening party leaderships, given that there is no legal regulation on issues of intra-party democracy in Brazil, and thus there are a myriad of parties dominated by personalistic oligarchies. Since their internal rules are stipulated through undemocratic processes, in order to foster the institutional strength of political parties, the loyalty of party members has been essential in negotiations with the government.[7] To sum up, the strengthening of political parties is more favorable to the congress and thus increases presidential incentives to form coalitions.[8] All in all, this sort of counterbalance to presidential power which stems from excessive party fragmentation has meant that all federal governments since the re-democratization had to have in their support coalition a broad group of parties whose leaders –chosen in undemocratic internal processes[9]– define the direction of the country’s political agenda.
Also, there is an electoral system in which party affiliation is required to run for office, demanding proportional elections through open lists, according to a personalist model, wherein political parties function as an agglomeration of oligarchies. As a result, there is a paradox where very powerful governments in terms of their constitutional prerogatives, which have the power to define in no small extent the congressional agenda,[10] have to face exhaustive negotiations with a wide range of political parties in order to form a majority. Furthermore, in polarized political environments, this coalition formation with no ideological identity weakens “the link between citizens and their government if the resulting coalitions are not representative of electoral outcomes or are distorted by elite priorities in the negotiations.” [11] This context challenges the formation and maintenance of parliamentary alliances during the presidential term, giving way to a bargaining model based on appointments in the administrative structure and in the budget endowment for the president’s supporters.[12] Thus, it is not surprising that nowadays Bolsonaro has no political party behind him, and when he had come to power, all of the mainstream political parties, both on the left and on the right, have exhausted themselves, whilst fewer voters were voting for somebody than voting against them.
For this reason, the Brazilian crisis definitively does not lead us to adopt the Spanish system, which suffers from the difficulty of forming governments in an environment where the number of parties is growing and demands increasingly broad coalitions.[13] Perhaps Italy is the best comparison, as it points out a political environment of excessive party fragmentation, forging governments with ideologically contradictory coalitions, which in turn fosters a situation of constant political instability. Instability and rapidly succeeding governments also marked the two periods in which Brazil experienced parliamentary phases (1847-1889 and 1961-1963).[14] Thus far, little is known about the outcomes of replacing dysfunctional presidentialism with multiparty parliamentarism.[15]
Moreover, the differences between presidentialism and parliamentarism are becoming increasingly blurred,[16] while political reforms must cease to be merely focused on institutional design. Accordingly, there are other ways of limiting power through institutional engineering, such as the definition and distribution of internal competencies within public bureaucracies and the state powers. Although we recognize the importance of this debate, we argue that the switch from presidentialism to parliamentarism would not necessarily transform the Brazilian political system’s “engine room,” given that any reform must address several other elements of our institutional design.
In addition to the factors already indicated, the role of the justice system in delegitimizing politics cannot be disregarded. We are referring, above all, to the developments of the well-known Operation Car Wash. Several cases of abuse of power were revealed involving the then federal judge Sergio Moro, who afterwards would be appointed Minister of Justice in the Bolsonaro administration. Criminal investigations proved to be selective, resulting in a significant politicization of the justice system, which would directly interfere both in the impeachment trial of President Rousseff and in the 2018 presidential elections. Even though there were some attempts by theSupreme Federal Tribunal to curb the abuses of Operation Car Wash, it remained passive in crucial moments of “constitutional hardball,” which can be exemplified by its oscillating position regarding the possibility of imprisonment before a final appellate judgment, and this was decisive to suppress the favorite potential candidate before the last election, former president Lula.
Therefore, the current political crisis scenario of intense polarization and democratic erosion results from a complex combination of variables that goes far beyond the constitutional choices made in 1987. Against this backdrop, the current Brazilian challenges are related to a political crisis rather than a constitutional one. Actually, Brazil has experienced the most extended period of institutional stability under the 1988 Constitution. Finally, if the recipe for constitutional design suggested by Professor Ackerman was followed, and the very same party system that has elected Bolsonaro maintained, would it not be a hollow hope to adopt parliamentarism aiming to reduce the risk of ideological polarization? It seems to us that this would be old wine in new bottles.
Apples, Oranges and Comparative Constitution-Making
If in Brazil the traditional parties have exhausted themselves, generating toxic choices for voters, with populist temptations, the issue leading to the constitutional moment under development in Chile was its opposite: “the maintenance of dictatorship-tailored institutional dykes that make the political system immune to the will of the majority.”[17] This is achieved mainly through numerous high-quorum provisions and supra-majoritarian mechanisms that are difficult to overcome, exceptionally rigid and peculiar in comparative perspective[18]. Fernando Atria’s book entitled “The Cheating Constitution”[19] describes with enough detail how a series of cheats meticulously designed a “protected democracy” in the country, thus providing Pinochet’s political heirs with unilateral veto power. In short, given that the state’s structure was tied up with the old neoliberal-authoritarian regime, the 1980 Constitution “remains a problem for political life not only because of its illegitimacy of origin but also, mainly, because of its contents and its perceived presence in everyday life.”[20]
Accordingly, during the Estallido Social of October 2019, a top polling firm in Chile found that 87% of those surveyed agreed that Chile needs a new constitution, and 72% agreed that the mobilizations and marches should continue. The 2019 protests’ slogan was “It is not 30 pesos, it is 30 years.” In this sense, “the people’s claim is to have the possibility to engage in a constituent dialogue” given that “the Chilean people have never truly had the chance to deliberate on their constitutional claims and to shape the country’s political design.[21]” Nonetheless, beyond discussions on the legitimacy deficits of the Pinochet-imposed Constitution, there may be potentially deeper issues that drove the 2019 political upheaval, such as the widespread imposition of neoliberalism, and its impact on the disenfranchisement of the relative poor.[22]
In light of these events, the Chilean constitution-making model emerged in a step-by-step fashion before its culmination into the Agreement for Social Peace and a New Constitution (Acuerdo por la Paz y la Nueva Constitución) signed on November 15, 2019 by most parties in the Chilean Congress. There is plenty of evidence that Chilean constitutional scholars learned from Bachelet’s failed process while spending a tremendous amount of energy on thinking about how to replace the current Constitution whilst addressing the dilemmas of legal break versus continuity in constitutional change[23]. Yet, it is too soon to know whether the procedure designed in Chile will deliver on its promises of a more inclusive and participatory constitution-making process.
By suggesting that the so-called Brazilian Constituent Assembly of 2023 should be inspired by the constitution-making model currently taking place in Chile, Professor Ackerman seems to ignore the sociohistorical preconditions that played an essential role in forging that model, with comprehensive negotiations between the two mainstream political coalitions. Moreover, if we were actually watching the death of the Brazilian Constitution, given that “Constitutions have to grow from the soil in which they are supposed to root,”[24] there is a long record that muses on the social and cultural forces that shape the Brazilian people which may determine a procedure for constituent power to express itself. Put differently: it is impossible to imagine a new Constitution without a constitutional moment.
In Brazil, given the current socio-historical conditions, there are good reasons to believe that Professor Ackerman’s proposition is more likely to favor an authoritarian, top-down, imposed form of constitutional change than the participatory model which resulted in the 1988 Constitution: a process that attempted to include the perspective of social actors in its construction, with the explicit concern with the transition from dictatorship toward democratic rule.
Since there was gridlock in the Constituent Assembly on the system of government, a referendum on whether Brazilians desired a presidential or a parliamentary system was held in 1993, with presidentialism winning handily. Even if we agreed with Professor Ackerman regarding the failure of presidentialism in Brazil, it is not clear whether a regime change would require a constituent assembly or whether it could instead be pursued via constitutional amenmdnet. This issue was brought to Brazilian Supreme Court’s docket when President Rousseff lost the parliamentary majority, but in 2018 the case was dismissed without prejudice. Therefore, we must wait for a final decision of the Court on whether a constitutional amendment could advance a regime change and/or whether there should be a new plebiscite. In other words, one possibility might be not a new constitutional convention, but instead political reform through the amendment procedure, guaranteeing the Constitution’s basic structure adopted in the Constituent Assembly of 1987.
Suggested citation: Luiz Guilherme Arcaro Conci, João Vitor Cardoso, Estefânia Maria de Queiroz Barboza, Glauco Salomão Leite Correio, and João Paulo Allain Teixeira, Old Wine in a New Bottle? A Response to Bruce Ackerman on Presidentialism in Brazil, Int’l J. Const. L. Blog, Nov. 8, 2020, at: http://www.iconnectblog.com/2020/11/old-wine-in-a-new-bottle-a-response-to-bruce-ackerman/
[1] Ginsburg, T. (2020). The Machinery of International Law and Democratic Backsliding: The Problem of Term Limits, Law & Ethics of Human Rights, 14(1), 1-18.
[2] Arato, A. (2016) Post Sovereign Constitution Making Learning and Legitimacy. New York: Oxford University Press, at 10.
[3] Such as the Argentine, Uruguayan, Colombian and Peruvian Constitutions.
[4] Pérez-Liñán, A. (2007). Presidential impeachment and the new political instability in Latin America. Cambridge University Press.
[5] See Gargarella, R. (2013) Latin American Constitutionalism.The Engine Room of the Constitution. New York: Oxford University Press, at 150.
[6] See Figueiredo, A., & Limongi, F. (1997). O Congresso e as medidas provisórias: abdicação ou delegação? Novos Estudos Cebrap, 47.
[7] Limongi, F. (2006). A democracia no Brasil: presidencialismo, coalizão partidária e processo decisório. Novos estudos CEBRAP, (76), at.22.
[8] See Alemán, E. & Tsebelis G. (2011) Political Parties and Government Coalitions in the Americas, Journal of Politics in Latin America, 3, 1, 3-28.
[9] Salgado, E. D., & Hualde, A. P. (2015). A democracia interna dos partidos políticos como premissa da autenticidade democrática. A&C-Revista de Direito Administrativo & Constitucional, 15(60).
[10] Figueiredo, A., & Limongi, F. (2007). Instituições políticas e governabilidade: desempenho do governo e apoio legislativo na democracia brasileira. A democracia brasileira: balanço e perspectivas para o século, 21, at. 155.
[11] Dalton, R. J., Farrell, D. M., & McAllister, I. (2011). Political parties and democratic linkage: How parties organize democracy. Oxford University Press, at. 166.
[12]Abranches, S. (2018) Presidencialismo de coalizão: raízes e evolução do modelo político brasileiro. Editora Companhia das Letras, at. 345.
[13] Crespo, M. S. (2020). Sistema electoral, sistema de partidos y formación del gobierno en España. Situación actual. Diritto Pubblico Europeo-Rassegna online, (1), at 24.
[14] Ferraz, S. E. (2017). A dinâmica política do Império: instabilidade, gabinetes e Câmara dos Deputados (1840-1889). Revista de Sociologia e Política, 25(62), 63-91.
[15] See Linz, J. & Stepan, A. (1999) A transição e consolidação da democracia – a experiência do sul da Europa e da Améria do Sul. Editora Paz e Terra, at 218.
[16] García Roca, J. (2017). Control parlamentario y convergencia entre presidencialismo y parlamentarismo. Cuestiones constitucionales, at. 37.
[17] Heiss, C. (2017) Legitimacy crisis and the constitutional problem in Chile: A legacy of authoritarianism. Constellations; 24; 470-479, at 470.
[18] Tsebelis, G. (2018), “Jugadores de veto y cambio constitucional: ¿Se puede desbloquear la Constitución de Pinochet?”, Política y Gobierno, XXV(1): 3-30.
[19] Atria, F. (2013) La Constitución tramposa. Santiago: LOM Ediciones.
[20] Heiss, C. (2017) Legitimacy crisis and the constitutional problem in Chile: A legacy of authoritarianism. Constellations; 24; 470-479, at 471.
[21] Contesse, J. (2019) A Constitution Borne Out of Actual Bullets: A Reply to Sergio Verdugo, S. VerfBlog, 2019/11/10, https://verfassungsblog.de/a-constitution-borne-out-of-actual-bullets/, DOI: https://doi.org/10.17176/20191111-033547-0.
[22] Cardoso, J. V. “Socioeconomic Changes and Constitutional Legitimacy: The Path to the New Constitution in Chile” (forthcoming in Derecho y Critica Social)
[23] Heiss, C. (2017) Legitimacy crisis and the constitutional problem in Chile: A legacy of authoritarianism. Constellations; 24; 470-479, at 472.
[24] Kim Lane Scheppele, Unconstitutional Constituent Power, Paper prepared for the Penn Program on Democracy, Citizenship, and Constitutionalism, 2012-2013 Faculty Workshop Series on the theme of “Constitution Making,” 21 February 2013, at 1.
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