DRAFT CONSTITUTION ANGUISHES THE COUNTRY (1987-1988)

 

PLINIO CORRÊA DE OLIVEIRA
Explains the genesis of Brazil’s 1987-1988 Constituent Assembly,
analyzes its already advanced preliminary work,
points out the impasse it has reached,
and proposes a concrete, serene, balanced and non-traumatic solution
under the law.

 

Click here to read and/or download the PDF

 

CONTENTS

To the Reader. Brazil on the Cusp of Repeating the Failed Experiment Behind the Iron Curtain, Known as the “Shame of Our Time”

Part I – Democracy and Its Representative Mechanisms

Chapter I – Democracy in the Political Era of “Openness”: Representativeness and Authenticity

1. Brazil in the “Openness” Regime
2. Democracy and the People’s Will – Unanimity and Majority
3. Direct Democracy and Representative Democracy
4. Protection of Minorities in Representative Democracy.
5. Referendum
6. Direct and Secret Ballot
7. Nature and Authenticity of Representation in Democracy
8. Vices that Can Affect the Authenticity of Representation
9. Scope of Representativeness in Evaluating a Democratic Regime

Chapter II – Requirements for an Election’s Representativeness: Democracy-with-Ideas and Democracy-without-Ideas

1. A Basic Condition for a Representative Democracy Is for the Electorate to Have an Opinion
2. Groups, Institutions and Media Encourage the Formation of Public Opinion and Serve as Its Mouthpieces
3. Eliminating Ill-considered or Frivolous Voting
4. Forming Currents of Opinion in the Pre-election Phase
5. More than Anyone else, the CNBB Could Contribute to Awaken a Taste for Serious and Profound Issues
6. The Mass Media
7. “Democratic Intuitionism”
8. The TFP Facing Democracy-with-Ideas and Democracy-without-Ideas.
9. The Pre-election Phase’s Ideological Inexpressiveness

Chapter III – Obstacles to the Formation of Democracy in Brazil’s Current Public Life – Professional Politicians and Political Professionals

1. The Non-ideological Nature of the Issues Highlighted to the General Public
2. Centrist Monotony Dampens Democratic Debate
3. Lacking Information while Absorbed in Private Affairs Diverts Attention from the Problems of Public Life
4. Public Opinion Is Less than Enthusiastic About Professional Politicians
5. Politicians for Sheer Idealism, a Genre Today’s Life Conditions Tend to Make Impossible
6. “Political Professionals,” Authentic Representatives of the Most Varied Professions and Fields of Activity
7. The Entry of a Large Number of Political Professionals into Public Life Would Enrich the Country’s Political Landscape
8. Democracy-with-Ideas in Brazil’s Empire and the Brazilian Republic
9. The Candidates’ Ideological Retreat in the Latest Elections
10. An Electoral “Show” Campaign with Faces But No Ideas

Chapter IV – “Only Centrism Is Authentically Democratic,” a Doctrinal Myth that Mutilates Democracy’s Representativeness

1. A Radical and Obsessive Centrism Emerged at the End of the Second World War
2. The Ghost of Extremism Appears
3. Forging the Seductive Idea of Centrist Moderatism
4. The Fundamental Contradiction of Centrist Moderatism: Imposing Universally Accepted “Dogmas”
5. The “Ultras” of Centrism Disfigure Democracy by Seeking to Refine It
6. Taking Coherence to the Last Point Is Not Necessarily Excess or Exaggeration
7. Centrist Intransigents Take Their “Logic” to the Last Extremes
8. Centrism, an Itinerant Position Generally Heading Left
9. The Natural Function and Importance of Extreme Positions, Even Minority Ones, in Public Opinion as a Whole
10. The Respective Spheres of Attraction of TFP’s “Medievalizing” Pole and the “Anarchizing” Communist Pole in Public Opinion’s Current Conditions
11. Identifying Every Categorically Anticommunist Movement with Nazi-fascism Is an Artifice of Communist Propaganda
12. TFP, a Typical Example of an Anticommunist Movement Simultaneously and Viscerally Anti-Nazi-Fascist
13. In Brazil, Centrists Vacillate Between Left and Right
14. Brazil’s Centrism without Ideas
15. Brazilian Kindness’ Implications for Political Parties’ Performance
16. In Brazil, a Controversial and Intractable Centrism Can Become Unpopular

Chapter V – Requirements for Genuine Representativeness in the Electoral Process

1. Requirements for Representativeness in Primaries
2. Compulsory Voting’s Incongruity with the Democratic System
3. Allowing Independent Candidates
4. Limiting and Controlling Spending on Electoral Advertising
5. Prohibiting Empty Election Propaganda
6. A Ballot Paper as Simple as Possible

 

Part II – The Constituent Assembly’s Congenital Lack of Representation, a Sad Result of the 1986 “Election-without-Ideas”

Chapter I – Far from Providing Voters with Adequate Information to Cast Their Vote Properly, Electoral Propaganda Has Disoriented and Disinterested Them

1. People Did Not Know What a Constituent Assembly Is
2. The Election for Governors Absorbed All the Attention
3. Party Primaries
4. Surprising Alliances
5. Voters Were Unconcerned About Casting a Coherent Vote
6. Lack of Party Roots
7. Disappointment with the “Political Class”
8. Empty Election Propaganda
9. Candidates Were Cautious About the Key Issues of the Constituent Assembly
10. Propaganda show.
11. The Effect of TV Advertising
12. Mutual Aggravation Between Candidates
13. Infantile Motivations for Choosing a Candidate
14. The Electoral Success of Radio Broadcasters and TV Presenters
15. The “Against” Vote

Chapter II – In Some Cases, Specific Defects in the Electoral System Have Seriously Damaged the Constituents’ Representativeness

1. Compulsory Voting
2. No Fewer Than 15,000 candidates
3. Pharaonic Spending

Chapter III – As the Explanations Given for PMDB’s Sweeping Victory Show, 1986 has Seen an Election without Ideas

1. Fearing the Country’s “Mexicanization”
2. The Cruzado Currency Plan Dazzled and Deluded the Electorate
3. Other Causes of PMDB’s Victory

Chapter IV – The Disappointing Electoral Performance of the Two Communist Parties and Left-Wing Parties in General

1. The Communist Parties’ Tiny Electoral Strength
2. The Communist Parties’ Moderate Language
3. The CPs Elected No Candidates Without a Coalition with the PMDB
4. The CP’s “Self-criticism”
5. Brasilia’s Influential Left
6. Confusion and Bewilderment Among the “Orthodox Left”
7. The PT (Workers’ Party) Attracted Votes from the Left
8. Not All PT Voters Are Left-wingers
9. PT’s Self-criticism
10. Brizola’s Defeat

Chapter V – The Victory of Notoriously Left-wing Candidates for State Governors Is No Proof that Anticommunist Sentiment Is Wearing Thin

1. Pernambuco’s Case
2. Similar Events in Other States
3. Ceará’s Case

Chapter VI – The CNBB Saw Its Plans to “Raise Awareness” About the Constituent Assembly among the Electorate Frustrated

1. The CNBB’s Intervention in Brazil’s Temporal Life
2. A Concrete Example
3. The CNBB’s Great Frustrated Effort
4. White” and “Black” Lists
5. Localized Successes

Chapter VII – The Trade Associations’ Limited and Concessional Stance

1. Associations Representing Industry and Commerce
2. The Acceptance of Land Reform by FAESP and SRB
3. CNA Also Accepts Agrarian Reform
4. The Position of the Broad Front of Brazilian Agriculture and Livestock
5. The Land Statute and the PNRA Are Continuing Threats to Private Property and Free Enterprise
6. TFP Calls on Farmers and Ranchers to Encourage Their Leaders to Act
7. The TFP’s Work

Chapter VIII – The Current Constituent Assembly Lacks Legitimacy to Write the Nation’s Authentic Thinking into the Magna Carta

1. Indecision Has Won the Elections
2. “Two Major Parties Emerged from the Polls: PMDB and PBN, or Party of Blanks and Nulls.”
3. Senators Elected in 1982 Take Part in the Current Constituent Assembly
4. The Current Constituent Assembly’s Serious Lack of Legitimacy
5. A Referendum to Remedy the Constituent Assembly’s Unrepresentativeness

 

Part III – The Constituent Assembly’s Tumultuous and Anomalous Functioning Manifests Its Lack of Authenticity

Chapter I – The Relationship Between the Electorate and the Constituent Assembly’s Parliamentarians Lacks Authenticity

1. The Population’s Alienation from the Constituent Assembly
2. Constituents Uncommitted to Voters
3. Party Acronyms, “a Mere Question of Elegance”
4. Center, Right, Left: Empty Labels in the Constituent Assembly
5. Political Bargaining for Personal or Party Interests
6. Protests against the “Electoral Fraud” in the November 1986 Elections are Multiplying

Chapter II – A Constituent Assembly Installed Under the Sign of Inauthenticity

1. Swearing to Abide by a Still Nonexistent Constitution
2. Many Point Out the Constituent Assembly as Aberrant from the Democratic Standpoint
3. Controversy Surrounding the Senators Elected in 1982
4. At a Constituent Assembly Intended to Abolish the Military Regime’s “Institutional Acts,” a Considerable Left-wing Current Has Proposed to Issue ‘Constitutional Acts’
5. Yet, the Idea Ended Up Succeeding Under Another Label: “Draft Decisions”

Chapter III – Serial Inauthenticity: 1. The Constituent Assembly’s Plenary Is Less Conservative Than the Electorate; 2. Subcommittees and Thematic Committees Are More Left-wing Than the Plenary; 3. The Systematization Committee Has the Largest Left-wing Concentration in the Constituent Assembly

1. The Electorate Did Not Elect Representatives to Draw up a Revolutionary Constitutional Text
2. The Left Took Over Key Posts in the Subcommittees and Thematic Committees
3. The Position of Rapporteur Entrusted to a Left-winger in Almost all Cases, Was a Decisive Factor in Drafting Preliminary Provisions
4. The Compound Rule of Three: The Systematization Committee Is Even More Left-wing Than the Thematic Committees
5. Leftist Polarization within the PMDB Influences the Constituent Assembly and Threatens to Drag the Country Down a Path Undesired by the Majority of the Population

Chapter IV – The Leftist Minority Is Working to Impose a Radical Constitution on the Country

1. The Arinos Draft Serves as “Glue” for the Leftist Constituents
2. The Left Must Fight for Gradual Changes Because They Are a Minority
3. Active, Articulate and Audacious Leftists Know What They Want and Are Up to
4. The Communist Parties’ Guaranteed Publicity
5. The Leftist Minority’s Winning Tactical Flexibility
6. A Veritable “Ideological Patrol” Seeks to Influence Decisions
7. Threatening People’s Mobilization if a Less ‘Advanced’ Constitution Is Adopted

Chapter V – In the Constituent Assembly, the CNBB Strives Decisively for Socialist and Confiscatory Reforms

1. Is the CNBB an Accredited Representative of the “People”?
2. CNBB’s Intense Activity in the Constituent Assembly Pleases the More Radical Left
3. CNBB’s Land Reform Radicalism Outdoes the Brazilian Communist Party’s
4. CNBB’s “Popular Amendments”
5. The “Aspirations of the People and the Christian Community” Reach Brasilia
6. It Is Difficult to Verify the Authenticity of the “Popular Amendments”
7. The CNBB Opens the Field to Protestants

Chapter VI – The Entrepreneurial Classes’ Representative Bodies Have Not Shown the Vision and Resourcefulness Required at the Historic Moment the Country is Going Through

1. Disjointed and Optimistic Centrists and Conservatives Face a Determined and Organized Left
2. Rural Producers’ Special Reactivity
3. The Classic Entrepreneurial Associations’ Omission Left a Vacuum on the Anti-Land-Reform Battlefield
4. The UDR’s Welcome by Rural Circles and the Media, Where Left-wingers Abound, Explains Its Initial Successes
5. UDR’s Showy but Shallow Role in the Constituent Assembly
6. Traditional Church Teaching on the Right to Private Property: A Moral Defense for Brazil’s Rural Business Community Against Communist Smears
7. TFP’s Perplexity at UDR’s Conspicuous Indifference
8. UDR’s Hesitant and Concessional Attitude Facing the Gradual and Erosive Action of Agrarian Socialists
9. Even if it Only Affects a Small Number of Cases, the Legal Recognition of an Injustice Could Put the Country’s Entire Legal Edifice in Jeopardy
10. TFP’s Cordial Move Toward Mutual Enlightenment

Chapter VII – The Constituent Assembly’s Tumultuous and Anomalous Functioning Aggravates the Lack of Authenticity of the Constitutional Text It Has Produced

1. In the Exercise of Their Respective Functions, the Rapporteurs of the Various Subcommittees and Committees Ensured that Proposals Reflecting Their Personal Point of View Would Prevail
2. The Constituent Assembly Plenary, “Almost as Empty as a Soccer Stadium on a Monday Morning”
3. The Lack of a Working Method.
4. Thematic Committees Encroach on Each Other’s Areas
5. Creating All Sorts of Obstacles to the Debates
6. Lacking Time for Plenary Works
7. Proposals Vetoed in the Subcommittees Reappear in the Thematic Committees
8. Irregularities in the Functioning of Some Subcommittees and Committees
9. Subcommittees and Committees Failed to Present Preliminary Drafts
10. At the Subcommittee on Urban Issues and Transportation
11. At the Committee on Sovereignty and Men and Women’s Rights and Guarantees
12. At the Committee for Organizing Government Branches
13. At the Systematization Committee
14. Technical Amendments and Amendments on the Merits
15. A Sad Assessment: “The Assembly Has Turned into a Big Mess”
16. Verbal and Physical Aggression Disrupts Constituent Assembly Sessions
17. Pharaonic Expenditures

Chapter VIII – A Draft Constitution That Has Deeply Displeased the Country

1. The Constitutional Text Being Drafted Has Immediately Drawn Heavy Criticism
2. A Magna Carta Draft with Provisions That Would Normally Fit into Ordinary Legislation
3. The So-called “Cabral Draft” Has Been the Object of Widespread Rejection
4. Senator José Richa Even Proposed that the Constituent Assembly Recess
5. The Formation of Supra-party Blocs
6. The Cabral Draft’s Basic Orientation
7. Some Particularly Aberrant Aspects of the Cabral Draft
8. What Post-Constituent Assembly Brazil Will Look Like If Certain Cabral Draft Provisions Prevail
9. Equality Between Marriage and Free Unions
10. Equality between Men and Women
11. Abortion
12. Homosexuality
13. Education
14. Rural property
15. Entrepreneurial Ownership
16. Taxation
17. Amnesty and Reinstatement of Expelled Military Personnel
18. A Self-Proclaimed Anti-Discriminatory Draft Absurdly Privileges Forest Dwellers
19. Revolutionary Utopianism Has Inspired the Current Constitutional Assembly’s Work

 

Part IV – The Draft Constitution Attacks Christian Civilization in Brazil

1. Preparing and Processing Preliminary Drafts and Bills
2. Rush Casts the Constituent Assembly’s Representativeness into Doubt
3. A Tumultuous Event Requires a “Sui Generis” Method of Analysis

Chapter I – The Cabral Alternative Draft Seriously Damages the Brazilian Family

1. The Family’s Christian Foundations in Brazil
2. Currents Dividing National Opinion on Family Matters
3. Traditional Catholic Doctrine on the Family
4. Family: an Institution the Draft Fails to Define but Legislates on with Exaggerated Length
5. A Clear Path to Abortion
6. Free Path to Contraception
7. Omission on Euthanasia
8. Virtually Establishing Direct Divorce
9. State Intervention in Family Relations
10. A Strongly Biased Ideological Education
11. Self-Management Levelling Down Education
12. “Universal, Compulsory and Free Education”
13. No State Support for Private Schools

Chapter II – Private Property and Free Enterprise under the State Intervention Steamroller

1. Catholic Teaching on the Right to Private Property
2. Free Enterprise Is Man’s Right to Use His Intelligence, Will and Sensibility to His Advantage
3. The Draft Constitution Corrodes a Right the State “Ensures and Protects”
4. Free Enterprise and the Principle of Subsidiarity
5. The Cabral Alternative Draft’s Statist Tendency
6. Mineral Resources and Hydroelectric Power Potential in State Hands
7. Petrobras’ Monopoly Is Guaranteed
8. Monopoly on Public Services
9. Healthcare Reform

Chapter III – The Cabral Alternative Draft Contains Multiple Elements of a Socialist and Confiscatory Agrarian Reform

1. One Can’t Allege the Social Function of Property to Impose Land Reform on Brazil
2. If the Need for Land Reform Were Proven, the Burden Should Not Fall Solely on Rural Landowners
3. The State Would Have to Exhaust Other Available Resources Before Expropriating Unused Private Land
4. How the Expropriation Mechanism Will Work Under the Alternative Draft
5. Payment in Agrarian Debt Securities
6. No Specified Amount for Compensating Improvements
7. What Will Happen to the Landowner if the State Cannot Pay Off the Internal Debt?
8. Hoping That Ordinary Legislation Will Do Justice
9. What is the Scope of the Presence of the Owner or an Expert he Appointed at the Inspection of the Property?
10. The Judge, a Figure “con la quale o senza la quale, il mondo va tale quale”
11. Not Even in the Case of Unjust Expropriation Will the Owner Get His Property Back!
12. Why Not Transfer the State’s Vast Lands to Private Ownership?
13. Moving Towards Russian-Style Collective Farms
14. Other Land Reform Provisions
15. Hostility to the Collaboration of Immigrants
16. Agrarian Reform’s “Guillotine” Will Hit Properties Now Considered Small or Medium-sized
17. Opposing the Divine Commandment: “Populate the Whole Earth”

Chapter IV – The Cabral Alternative Draft Dangerously Opens the Gates to Urban Reform

1. A Provision Allows All Private Property to be Expropriated
2. The State Will Judge Whether a Property Fulfills Its Social Function
3. Nothing Protects Urban Property Owners from Having Their Property Appraised According to Brainless State Criteria
4. Fast-Track Adverse Possession

Chapter V – The Entrepreneurial Reform Also Seems to be Taking Early Steps

1. For Workers, Every Possible Advantage… and Then Some
2. Utopianism Concerning Domestic Workers
3. Compulsory Participation in Company Profits and Management
4. A Right to Strike without Necessary Reservations
5. The Alternative Draft’s Ultimate Goal: Self-Management Utopianism?

Chapter VI – Sentimental Socialist Ramblings at the Root of a Misunderstood Social Function of Property

1. Social Function, a Widespread Slogan but Poorly Defined Concept
2. A More Sentimental Than Doctrinal Assumption: Inequality Makes People Suffer
3. The Necessary Consequence of These Sentimental Ramblings: We Must Act to Ensure that All Inequalities Disappear
4. Under Marxism’s Deadly Influence, this Yearning Shuns Christian Charity and Calls for Marxist “Justice”
5. Utopian Socialism and “Scientific” Socialism Play Different Roles in Spreading this Melodrama
6. The Problems Created by the Industrial Revolution Have Gradually Subsided
7. The Church’s Beneficial Action Simultaneously Rejecting Capitalist Selfishness and Revolutionary Egalitarianism
8. Reborn from the Ashes of the Modernist Heresy, the “Catholic Left” Foments Ideological, Philosophical and Socio-economic Agitation
9. The “Social Function of Property” in Traditional Church Teaching
10. Limits and Subtleties of the Social Function of Property According to Catholic Moralists
11. How the “Catholic Left” Poisons the Issue
12. The Entire Social Body Fulfills Functions for the Common Good
13. “Jesus Became Poor to Ennoble Poverty” (St. Pius X)

Chapter VII – Natives, the Aristocrats of the New Constitutional Order

1. Reinterpreting the History of Brazil According to “Liberation Theology”
2. Harmonizing Ethnic Groups Rather Than Race-Baiting
3. Diverse Cultures Amicably Complement Each Other Among a Single People
4. Privileges the Alternative Draft Grants Indians
5. Self-Management Socialism Among Indians
6. Exploitation of Natural Resources Subject to the Indians’ Authorization
7. A Hypertrophied Conception of Indian Rights Threats National Sovereignty

Chapter VIII – Commenting on Some Topics the Cabral Alternative Draft 2 Deals With

1. Shrinking the Armed Forces’ Scope of Action
2. Reinstating Punished Military Personnel
3. The Alternative Draft Seriously Compromises the Judiciary’s Independence
4. Extinguishing Emphyteusis in Urban Areas
5. A “Neutral” but Despotic Doctrinal Approach to Censorship
6. The Alternative Draft’s Vague Concepts

Chapter IX – Egalitarian Utopianism and Radical Despotism: The Cabral Alternative Draft’s “Philosophical Thread”

1. A Doctrine of the Origin of Power by the Philosophers Who Prepared the French Revolution of 1789
2. Liberty, Equality, Fraternity, an Old-Fashioned and Vague Formula Susceptible to Contradictory Interpretations
3. A Radical Interpretation of the Revolutionary Trilogy
4. The Cabral Alternative Draft’s Utopian Egalitarianism
5. Enshrining a Communist-Inspired Principle in Brazilian Legislation
6. “Equal Participation in the Cultural Process”
7. The Alternative Draft Opportunely Eliminated Some of the Cabral Draft’s Egalitarian Delusions
8. Ferocious Authoritarianism Looms in the Fight Against “Prejudice” and “Discrimination

TFP proposal – How Can the Inauthentic Situation Resulting from the Current Constituent Assembly’s Lack of Representativeness Be Remedied? By Holding a Referendum? Consensual issues and Contested issues. A TFP Proposal

1. The Possibility of Holding a Referendum to Remedy the Constituent Assembly’s Lack of Representativeness
2. The Constituent Assembly Seeks Popularity but Arouses Astonishment and Fright
3. Consensus and Division Among Brazilians
4. Prospects for the Current Constituent Assembly
5. A Solution: Having a Constitution on Consensual Matters (Political Organization) Done Immediately and Legislating on Disputed Matters (of a Socio-economic Nature) Only After Adequately Preparing the Nation’s Opinion
6. TFP’s Collaboration: Finding an Institutionally Coherent and Viable Framework for the Constituent Assembly
7. Divorce Between the State and the Nation
8. Soviet Glasnost, a Modern-Day Example
9. For the Brazilian State, an Unpredictable Outcome

 

Conclusion – Avoiding the Cliff That Brazil Is Approaching