Democratic Transition and the 1988 Constitution
Introduction
The democratic transition (1974-1988) and the enactment of the 1988 Federal Constitution represent the most transformative period in Brazilian legal history. The transition from the military dictatorship (1964-1985) to democracy involved political negotiations, legal reforms, and the convocation of a National Constituent Assembly that produced the “Citizen Constitution.” The period since 1988 has been marked by continuous legal development and constitutional implementation.
The Political Opening
Distensão and Abertura
The democratic transition began under President Ernesto Geisel (1974-1979) with a policy of distensão (decompression), gradually reducing repression. President João Figueiredo (1979-1985) continued the abertura (opening) process, including: (i) the Amnesty Law (Law 6.683/1979), granting amnesty for political crimes; (ii) restoration of habeas corpus; (iii) multi-party system; and (iv) direct elections for state governors.
Diretas Já
The Diretas Já (Direct Elections Now) movement (1983-1984) mobilized millions demanding direct presidential elections. Though the proposed constitutional amendment failed, the movement strengthened democratic forces.
Tancredo Neves and the New Republic
Tancredo Neves was elected President by the Electoral College in 1985 but died before taking office. Vice-President José Sarney assumed the presidency, initiating the “New Republic.”
The 1988 Constituent Assembly
Convocation
The National Congress was convened as a National Constituent Assembly (Assembleia Nacional Constituinte) in 1987. The Assembly was composed of 559 members of Congress (deputies and senators), with no separately elected constituent body.
Participatory Process
The drafting process was unusually participatory: (i) public hearings; (ii) citizen proposals with popular signatures; (iii) civil society organization submissions; (iv) thematic committees and subcommittees; and (v) extensive media coverage.
Key Debates
Major constitutional debates included: (i) presidential vs. parliamentary system; (ii) length of the presidential term; (iii) land reform and property rights; (iv) labor rights; (v) the role of the armed forces; (vi) indigenous rights; and (vii) the economic order.
Promulgation
The Constitution was promulgated on October 5, 1988, by the Constituent Assembly. The ceremony was attended by international dignitaries and civil society representatives.
The 1988 Constitution
Innovations
The 1988 Constitution introduced transformative innovations: (i) expansion of fundamental rights; (ii) independent Public Prosecutor’s Office; (iii) strengthening of the judiciary; (iv) broad standing for constitutional actions; (v) extensive social rights; (vi) environmental protection; (vii) indigenous rights; and (viii) municipal autonomy.
The Citizen Constitution
The Constitution was called the “Citizen Constitution” (Constituição Cidadã) due to its emphasis on fundamental rights, social justice, and democratic participation.
Post-1988 Legal Reforms
Judicial Reform (EC 45/2004)
Constitutional Amendment 45/2004 (the Judicial Reform) introduced: (i) the National Council of Justice (CNJ); (ii) binding precedents (súmulas vinculantes); (iii) the general repercussion requirement; and (iv) administrative autonomy for the judiciary.
Civil Procedure Code (2015)
The CPC/2015 modernized procedural law, introducing: (i) the precedent system; (ii) dynamic burden of proof; (iii) provisional relief; (iv) electronic proceedings; and (v) enhanced case management.
Anti-Corruption Framework
Post-1988 legislation strengthened anti-corruption enforcement: (i) Money Laundering Law (Law 9.613/1998, amended 2012); (ii) Anti-Corruption Law (Law 12.846/2013); and (iii) Operation Car Wash (Lava Jato), the largest corruption investigation in Brazilian history.
Criminal Procedure Reform
Law 13.964/2019 (the Anti-Crime Package) introduced: (i) plea bargaining (acordo de não persecução penal); (ii) the judge of guarantees (juiz das garantias); (iii) changes to pre-trial detention; and (iv) asset forfeiture mechanisms.
Contemporary Legal Challenges
Implementation
The implementation of constitutional rights remains incomplete: (i) access to justice; (ii) public security reform; (iii) prison conditions; (iv) racial equality; and (v) social rights realization.
Institutional Tensions
Tensions between the branches of government — executive overreach through provisional measures, judicial activism, and congressional resistance — continue to shape legal development.
Conclusion
The democratic transition and the 1988 Constitution represent a watershed in Brazilian legal history. The Constitution’s comprehensive rights catalog, robust institutions, and democratic framework established the foundations for the legal system’s continued evolution. The post-1988 period of legal reform has progressively implemented constitutional commitments, though challenges of enforcement and institutional balance persist.