Constitution as Catharsis Part 2 - Brazil

1. Latin American Law Constitution as CatharsisPart 2 - Brazil Last updated 12 Oct 11

2. Zapatista National Liberation Army: “everything for everyone, nothing for ourselves.” Chiapas

3. Constitutional reform (2002) … 2000 Fox elected Feb 1996San Andres Jan 1994uprising 1998raids Mar 1999consultations 2002Const amended April 1995talks 1996-1997protests “What happened to PRI? [Sam Wellborn] “How long 1917 Const? [Jeff]

4. Mexican Constitution, Article 2 (as amended 2002) Article 2 - The Mexican nation is unique and indivisible. The nation has a multicultural composition, originating in its indigenous people, who are descended from people who lived in the current territory of the country, who live in it now, and who keep their own social, economic, cultural, and political institutions or parts of these. … Communities of indigenous people are those that form a social, economic, and cultural unit, situated in a territory, and recognize authorities in agreement with their traditions and customs. The right of indigenous people to self-determination will be exercised in a constitutional way that assures national unity. The recognition of indigenous people and communities will be made in the constitutions and laws of federated entities, which will take them into account … ethnolinguistic criteria, and physical location. A. This Constitution recognizes and guarantees the right of indigenous peoples and communities to self-determination, and, in consequence, autonomy to: I. Decide their internal forms of living and social, economic, political, and cultural organization. II. Apply their own standards in regulation and solution of their internal conflicts, subject to the general principles of this Constitution, respecting individual guarantees, human rights, and, in a relevant manner, the dignity and completeness of women. The law will establish the cases and procedures of validation by the appropriate judges or courts. III. Elect, in accord with their traditional standards, procedures, and practices, authorities or representatives for the exercise of their own forms of internal government, guaranteeing the participation of women in conditions of equality to those of men, in a way that respects the Federal Pact and the sovereignty of the states. IV. Preserve and enrich their languages, awareness of their heritage, and all the elements that constitute their culture and identity. VIII. Accede fully to the jurisdiction of the State to guarantee those rights, in all trials and proceedings in which it takes part, individually or collectively. The State will take into account their customs and cultural specifics, respecting the precepts of this Constitution. Indigenous people have at all times the right to be assisted by interpreters and defenders who are acquainted with their language and culture. B. The Federation, states, and municipalities, to promote equal opportunity for indigenous people and eliminate any discriminatory practice, will establish the institutions and determine the necessary policies to guarantee the rights of indigenous peoples and the complete development of their people and communities. These will be designed and operated together with them. “exclusion of the ‘use and benefit of the land’”?

6. Constitutional challenge … Article 135. The present Constitution may be added to or amended. In order that the additions or amendments shall become a part thereof, it shall be required that the Congress of the Union, by a vote of two thirds of the individuals present, agree to the amendments or additions and that they be approved by a majority of the legislatures of the States. The Congress of the Union or the Permanent Committee, as the case may be, shall count the votes of the legislatures and shall announce those additions or amendments that have been approved. [As amended on October 11, 1966, published in the Diario Oficial of October 21, 1966.] Basis for challenge: (1) ILO Conv 169 on Indigenous Peoples, (2) super-majority voting in state legislatures

7. Mexican Supreme Court[11 judges / 15 year terms] Draft opinion (Rapporteur) • Decision (syllogism) • Antecedents (minor premise) • Considerations (major premise) • Resolution (conclusion) Public hearing New decision Court decision (dissent / concur)

8. What are “jurisprudential theses”?decisiones ejecutorias / jurisprudencia Constitutional Controversy 82/2001 (JP 39/2002): No judicial review of federal constitutional amendment procedure – Congress and state legislatures “are performing a sovereign function, exempt from any kind of external control” Constitutional Controversy 82/2001 (JP 40/2002): A constitutional controversy may not be used to challenge federal constitutional amendment procedure – Article 105(1) authorizes constitutional challenges among co-existent federal entities and “does include the Constitutional body empowered by Article 135”

9. Judicial review in Mexico …

10. Mexican Supreme Court[11 judges / 15 year terms] Draft opinion (Rapporteur) • Decision (syllogism) • Antecedents (minor premise) • Considerations (major premise) • Resolution (conclusion) Public hearing New decision Court decision (dissent / concur)

11. What are “jurisprudential theses”?decisiones ejecutorias / jurisprudencia Constitutional Controversy 82/2001 (JP 39/2002): No judicial review of federal constitutional amendment procedure – Congress and state legislatures “are performing a sovereign function, exempt from any kind of external control” Constitutional Controversy 82/2001 (JP 40/2002): A constitutional controversy may not be used to challenge federal constitutional amendment procedure – Article 105(1) authorizes constitutional challenges among co-existent federal entities and “does include the Constitutional body empowered by Article 135”

12. Constitution as celebration –the case of Brazil…

14. Dominican Republic (2002) US Constitution (1791) Cuba (1976) Mexico (1917) Puerto Rico (1952) Honduras (1982) Venezuela (1999) El Salvador (1983) Colombia (1991) Nicaragua (1987) Ecuador (1998) Costa Rica (1949) Panama (1972) Peru (1993) Brazil (1988) Bolivia (1967) What events preceded the Brazilian Constitution of 1988? Process of constitutional drafting (citizen petitions, 122 amendments, signed by 12 million voters Paraguay (1992) Chile (1980) Uruguay (1967) Argentina (1994) Sam Wellborn

15. Both United States and Brazil are continent-sized countries with urbanized coasts and bountiful “deep interiors” built on gold rushes, cowboys, sugar, and slaves Compare # delegates, # signatories, federal ambitions

16. Preamble (Brazil 1988) We, the representatives of the Brazilian People, convened in the National Constituent Assembly to institute a Democratic State, for the purpose of ensuring the exercise of social and individual rights, liberty, security, well-being, development, equality and justice as supreme values of a fraternal, pluralist and unprejudiced society, founded on social harmony and committed, in the internal and international orders, to the peaceful settlement of disputes, promulgate, under the protection of God, this CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL. typical A+ college paper Preamble (US 1791) We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

17. Personal liberties vs. personal welfare • US Constitution (1791) • Preamble ["We the people...."] • Art I [The Legislative Branch] • ..Sec 1. [Legislative Power Vested] • ..Sec 2. [House of Representatives] • ..Sec 3. [Senate] • ..Sec 4. [Elections of Senators, Representatives] • ..Sec 5. [Rules of House and Senate] • ..Sec 6. [Compensation and Privileges of Members] • ..Sec 7. [Passage of Bills] • ..Sec 8. [Scope of Legislative Power] • ..Sec 9. [Limits on Legislative Power] • ..Sec 10. [Limits on States] • Art II [The Presidency] • ..Sec 1. [Election, Installation, Removal] • ..Sec 2. [Presidential Power] • ..Sec 3. [State of the Union, Receive Ambassadors, Laws Faithfully Executed, Commission Officers] • ..Sec 4. [Impeachment] • Art III [The Judiciary] • ..Sec 1. [Judicial Power Vested] • ..Sec 2. [Scope of Judicial Power] • ..Sec 3. [Treason] • Art IV [The States] • ..Sec 1. [Full Faith and Credit] • ..Sec 2. [Privileges and Immunities, Extradiction, Fugitive Slaves] • ..Sec 3. [Admission of States] • ..Sec 4. [Guarantees to States] • Art V [The Amendment Process] • Art VI [Legal Status of the Constitution] • Art VII [Ratification] • Amendments (27 in 216 years – 1.3/decade) Brazil Constitution (1988) Preamble The principles which inspired the Constituents. Title I The Fundamental Principles.Title II Individual and collective rights and duties.Title III The Organization of State.Title IV The Organization of Powers.Title V The Defense of State, Democratic Institutions.Title VI Taxation and Budget.Title VII The Economic and Financial Order.Title VIII The Social Order. Chap I Primacy of work Chap II Health, Social Security, Social Assistance Chap III Education, Culture, Sports Chap IV Science and Technology Chap V Social Communication Chap Vi Environment Chap VII Family, Children, Adolescents, Elderly Chap VIII Indians Title IX General Constitutional Provisions Amendments (52 in 19 years – 27/decade) 250 articles, 83 transitory provisions, 14 unnumbered articles, 37 amendments

18. Non-amendable constitutions …

19. The “open list” proportional representation system, combined with … no means to exclude representatives from insignificant parties, has made it extremely difficult to build stable majorities in Congress. Prof. Keith Rosenn Prof. Lani Guinier (Harvard 1998-date)

20. Presidential decrees …

21. Article 62President has power – in cases of “relevancy and urgency” – to issue provisional measures that have the force of law, but lose force if Congress does not ratify within 30 days Fernando Collor (1990-1992) 1st popularly elected president after military coup. Impeached by Congress two years later. “not much changed …between1989 and 1997, presidents issued 446 provisional decrees and Congress rejected only 3%.” Sam Wellborn

22. Brazil Constitution, Article 62 (as amended 9/11/2001) Article 62. In important and urgent cases, the President of the Republicmay adopt provisional measures with the force of law and shall submit them to the National Congress immediately. Paragraph 1. No provisional measures should treat following matters [nationality, citizenship, political rights, political parties and electoral rights; criminal laws, criminal and civil process; organization of Judiciary Power; budgetary directives, levy or retention of assets] Paragraph 3. Provisional measures will lose efficacy, back to the issuing date, if not converted into law within sixty days … Paragraph 7. The validity of a provisional measure will be extended once, for the same period, if, after sixty days counted from the publication, its appreciation is not concluded on both Houses of Congress. Paragraph 11. If the legislative decree mentioned on paragraph 3 is not edited within sixty days after rejection of provisional measure, the juridic relations constituted and consequential of acts practiced during its validity will remain regulated by them. Paragraph 12. If the draft of law of conversion changing the original text of provisional measure is approved, the measure will remain in full force until being sanctioned or vetoed by the President.

24. US presidential power • Art. II, § 2 - Commander-in-Chief (Congress exclusive power to declare war under Art. I, § 80 • Abraham Lincoln: gathered/paid troops, issued the Emancipation Proclamation, suspended habeas corpus • Franklin Roosevelt: ordered internment camps for Japanese-American citizens on the West Coast • Harry Truman: seized steel mills to prevent strike during Korean War • Richard Nixon: ordered bombings in Cambodia (and who knows what else) • War Powers Act (1973): president send U.S. armed forces into combat for up to 60 days w/o Congress

25. The National Emergencies Act • (50 U.S.C. 1601-1651) • eliminated or modified some statutory grants of emergency authority • required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used • provided Congress a means to countermand the President’s declaration and the activated authority being sought.

26. Presidential powers are not fixed but fluctuate,. • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, …. • When the President acts in absence of either a congressional grant or denial of authority, but there is a zone of twilight in which he and Congress may have concurrent authority. … • 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, Justice Robert H. JacksonYoungstown Steel (1952)

27. “Incidental” judicial review vs. “centralized, abstract” judicial review? Taryn Kadar

28. A tale of two supreme courts …

29. Binding? FV = PV * (1 + i) n Article 103-A. The Supreme Federal Court shall have the power to, by own initiative or by provocation, by means of a decision taken by two thirds of their members, after reiterated decisions about constitutional matter, approve sumula which, after publication in official gazette, shall have binding effect over the other bodies of the Judiciary Power and over the direct and indirect public administration, at federal, State and municipal levels, as well as proceed to their revision or canceling, in the manner provided for in law. [added, December 8th 2004]

30. Ideals and reality …

31. Brazil’s Constitution provides that “prisoners are assured respect for their physical and moral integrity” and Brazilian law requires that prisoners be provided health care, and educational, legal, social, and religious assistance … If those who represent the Government do not believe in the Constitution, then who will? Taryn Kadar

33. End

34. … the disturbing distance that separates the rights inscribed on paper and .. the guaranty of their exercise in practical life … Veja (1989) Alonzo Chisholm

35. “Brazil has one of the most beautiful Constitutions in its history in all that is says with respect to fundamental human rights.”Rondonia v. Brazil, which was addressed in a report by the Inter-American Commission on Human Rights (IACHR).Melinda Hanzel

36. Why do crimes against women in Brazil not provoke the same outrage as they would in the United States?Jill Reeder

37. Typical US Executive Order 12170 – freezing Iranian assets • concerns Secretary of Treasury (part of Executive Branch) • addresses one issue, no contingency provisions, no caveats. • declaratory in nature – more like a press release. • Typical Brazilian Provisional Measure 926 – anti-dumping duties • long and complex • 17 articles, sub-articles • * * * • … the Brazilian judiciary has failed to effectively keep this power in check, the American judiciary has provided guidance by tying the President’s power to legislate to the will of Congress. • Matt Clark

38. Presidential signing statements “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power” Melinda Hanzel

39. Juan Carlos Ramirez Abadia Ben Austrin-Willis.