Why is a Constituent Assembly necessary?

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By ALBERTO HANDFAS & EVERALDO DE OLIVEIRA ANDRADE*

The 1988 Constituent Assembly was born out of the conservative transition agreed upon by the elites

The defense of higher education, research, extension, culture and science has always been a major challenge in a country that has never overcome underdevelopment. But in the current and difficult trap in which Brazil was ambushed, the challenge was compounded by additional legal and institutional obstacles imposed especially after the 2016 coup. These are obstacles that will stifle the action of any government that wins the elections. Overcoming them requires a path of democratic rupture so that a future progressive government has the minimum conditions to implement a program that recovers the University and public education in Brazil.

Social, trade union and democratic movements – which include broad sectors of the university and scientific communities – must resume the struggle across the country to defeat, now electorally, Bolsonaro and his policies. And the way to do so is total engagement in the campaign to elect Lula president!

It is necessary to recognize, however, that the elected Lula will face enormous obstacles (greater than those encountered in 2002), including constitutional ones, to reverse all the damage done in recent years, in addition to guaranteeing the transformation of the country towards the conquest of national sovereignty, social justice and development – ​​of which the public, free, autonomous and socially referenced university is an integral and essential part. Part of these obstacles already existed in 2002. They frustrated the implementation of structural reforms, despite the advances made in the PT governments, and ended up leading to the 2016 coup. , antisocial and antinational that began to be implemented in Temer’s “Bridge to the Future” and deepened with the “boiadas” passed by Jair Bolsonaro and his Centrão.

 

The 1988 Constituent Assembly

But the problem comes from afar. The 1988 Charter, despite economic and social rights formally enshrined in several of its articles, kept intact, in the chapters of the organization of State power, the reactionary, corrupt, anti-democratic institutions, historical guardians of the interests of the oligarchies, of the large estates, of rentier financism and big capital, including international capital. They are institutions specialized in the oppression of the people, especially the poor and black, in a country with elites that have never overcome their atavistic slave-owning, authoritarian, violent and colonized past.

After all, let us remember, that was exactly why the PT parliamentary group voted against the 88 Constitution, declared its vote through its leader, Lula – even though signing its text, obviously, for having participated in the process (Perseus Magazine, P. 184-5).

The 1988 Constituent Assembly was born out of the conservative transition agreed upon by the elites, who agreed to end the dictatorship on condition that the process was controlled and safe for their interests. The rules of the constituent were imposed and protected by the institutions of the dictatorship itself, still intact. The Charter was thus drawn up by the deputies and senators themselves (elected, incidentally, by the same previously existing casuistic and anti-democratic rules), with a vast conservative, physiological and oligarchic majority – dominated by the “Centrão” at the time.

If this reactionary majority accepted several popular amendments that met, at least formally, social demands (the result of pressure from the street struggles of the 1980s), it only did so because it knew that it would guarantee, with an iron hand, the preservation of the organization of power of State, which was never really democratic in our country. In the chapters of the order of power, all institutions molded to the interests of the dominant classes were preserved, in order to continue being used as their historical private instruments of control over the people and against them.

For example, the monopoly of the means of communication was maintained, the intervening role of the Armed Forces – the infamous article 142 –, including the military police and the repressive apparatus (art. 143 and 144). All instruments for the preservation of the large landholdings in the countryside were guaranteed, as well as the elitist, rotten and coup-acting system of Justice that we know so well. The political-party structure was also maintained, with an electoral system manipulated by economic and media power: the vote of voters from more urbanized and populous states is worth much less than that of representatives from rural corners; candidacies are not list-programmatic, but personal (uninominal) [I] and with billionaire campaign financing.

All this ensured the perpetuation of the oligarchic, conservative and physiological majority, which is divided in Congress, its business counter, among the “BBB benches”: Bala, Boi, Bible, in addition to that of Bankers and the Media (very endemic and ecumenical). The left, uniting all associations linked to social movements (PT, Psol, PCdoB, progressive sectors of the PDT, PSB etc), despite being much more representative among the popular masses, never managed to obtain more than 20% of the Chamber (and well except the Senate). And it won't even be able to, if such rules are not profoundly changed and democratized.

 

Social demands were never fully implemented

Once the reactionary institutions, which, after all, were responsible for the implementation of constitutional guidelines, were preserved, part of the social conquests enshrined in the 88 Charter could never actually get off the ground. Another part, if it came out, did so in a limited and leaning way. Regulatory laws to implement such achievements were either never passed or ended up limiting their scope.

Therefore, even though they are formally constitutional obligations, the social and democratic flags – such as Education or Health (SUS), public, free, universal and of quality, the Agrarian and Urban Reforms (guarantee of the “social function of property”) – to date have not been, by far, fully implemented. For this reason, another example, a good part of the constitutional funds for Social Security (State contributions to Social Security revenues, guaranteed in Articles 194 and 195) have never been allocated, since the promulgation of the Constitution in 1988 (FAGNANI, pp. 19-20) . For this reason, other structural reforms, such as those that would guarantee progressive taxation or national sovereignty – formally written in the Charter – did not get off the ground. Thus, we remain among the world champions in income inequality and tax regression.

Not even the democratic guarantees provided for by the Constitution are respected, much less cared for, by such institutions. The STF, the Judiciary, the TSE, the Public Ministry, Congress (not to mention the FFAAs) shamelessly act like foxes guarding the henhouse. It was, in fact, what we witnessed in the 2016 coup, in the farce of Lava Jato or in the criminal conviction without evidence and subsequent political imprisonment of Lula, a neuralgic part of the electoral manipulation that ended up taking a criminal and his gang to the presidency of the Republic. Such an attitude is in the DNA of these institutions, which – since colonial Brazil – have always fulfilled this role. It was they, to take just two examples, who endorsed the sending of pregnant Olga Benário to the Gestapo, or the 1964 coup itself.

 

120 constitutional amendments

The preservation in the Constitution of the reactionary institutions, inherited from the pre-88 period, was critical to the bourgeoisie, not only to maintain its reins of power and to (allow itself the luxury of) avoiding the implementation (full, at least) of social achievements and people inscribed in the Charter. Such preservation was also essential to completely remove a large part of these social rights from the Constitution itself, neutralizing and even annulling achievements produced by the enormous effort of popular struggles.

Shortly after the promulgation of the Constitution, several of the social and economic rights began to be erased from it through constitutional amendments (CEs) proposed by governments and congressional legislatures – especially in the FHC and post-coup 2016 periods. have been approved. The vast majority of them are regressive, eliminate rights and social guarantees or are contrary to national sovereignty.[ii]. The table below shows just a few more relevant examples of such CEs.

 

Education, University and budget cuts

Public universities have generally become a focus of resistance and mobilization since the 2016 coup. But this has not stopped the advance not only of deep cuts in funding and research funding - which today directly threatens the national system of research in the country – but the scrapping and destruction of the infrastructure conquered until that moment. It is a project of profound subordination of the Brazilian nation, of alienation of our people to the large corporations in the market, of making national science unfeasible and degrading our authentic and original forms of cultural expression.

The various ECs that separate revenues from social expenditures have led to the lowering of the constitutional minimum limits for Education, allowing governments to reduce funds below such limits at the whim of financial market demands. This is an affront to the basic principle of national development, which presupposes stable resources at least for Education and Health, regardless of the phase of the economic cycle.

EC-95 is the last and most perverse of such disengagements. She, in the name of freezing public spending for 20 years to carry out the fiscal adjustment (austericide) and the payment of interest on the rent-seeking debt, unlinked revenues (taxes) that the Constitution required to allocate to Health and Education.

The minimum expenditure on Education was thus frozen at the amount for 2017, which was the constitutional minimum that the government (Temer) had to comply with (before the PEC): 18% of the Union's Net Revenue. As the recession (2015-17) reached its peak in that year, Net Revenue (and therefore that 18%) was already quite low. Over the next 20 years – as EC-95 prevents any real increase in spending and as GDP and tax collections will grow naturally – the mandatory minimum amount for Education will fall as a proportion of tax revenues. Conservative projections point to its shrinking from 18% to 11% by 2037 (DWEK et all, p.33).

This implies a huge drop in educational spending in relation to the (growing) population and GDP. To make matters worse, there is a considerable part of federal spending on maintenance and development of education that in 2017 was left out of the floor; therefore, it can be reduced even more in the following years (idem, 32).

This “Expenditure Ceiling” will not only prevent new investments (construction and maintenance of buildings and laboratories, or acquisition of equipment) by universities and public schools. He will condemn the very operation of such establishments, including payment of electricity, water, cleaning or security bills. Readjustments in the salaries of professors and technicians (already far out of date) are unfeasible, not to mention the essential new contests. Altogether, the current allocation (2022) in the Federal Budget for Higher Education is one third less than its 2015 value.

 

University autonomy and democracy

University autonomy is inscribed and will only become viable in the general framework of democracy and national sovereignty. With democracy in check, in the current situation of daily threats to democratic conquests and freedoms, possibilities and precedents for external interference in the functioning of institutions open up: illegitimate (or even illegal) appointments, such as the appointment of deans and managers, attacks on academic and scientific freedom, or persecution and harassment aimed at undermining the assumptions of university life. And without free, democratic and autonomous universities, it is not possible to dialogue with society, absorb the nation's demands for science, knowledge, deeper culture so that it can create and offer the central, strategic and fundamental contributions to the economic and social development that the vast majority of the population waits. We must not forget the famous movement for the autonomy of universities, born in Córdoba, Argentina in 1918, and which was an expression of this struggle for sovereignty and democracy for the nations of Latin America and which remains current.

In addition to the regressive ECs approved in recent years, the reactionary dominance of Congress and other state institutions led to the composition of a fragile legal framework (or even unfavorable) to democracy and autonomy and to the funding of public universities. The LDB, for example, does not guarantee full respect for internal electoral processes. Moreover, especially after the 2016 coup, arbitrary action, disrespectful to due process of law and reactionarily politicized by the organs of Justice, was wide open and disseminated, including attacking university autonomy - the revolting and unfair persecution that led to the tragic death of the dear rector Cancellier (UFSC) is just one of many examples that began to multiply throughout the country.

 

The University facing the immobilization of popular sovereignty

Furthermore, the total impossibility of approval by Congress of a progressive Tax Reform perpetuates an enormous injustice in the distribution of national income, limiting the financing capacity of Public Education. More than that, it also feeds the industry of easy profit in Private Education – almost always disrespectful in the labor and academic-pedagogical treatment of its teaching staff, in addition to being deeply uncompromising in the face of the inseparable missions of teaching, research and extension. Because huge amounts of public funds are diverted, with undue fiscal and tax incentives, to large corporate groups, highly financialized and multinationalized, whose powerful lobby does not stop growing.

The exchange legislation and the “Independence” of the Central Bank (BC) is another serious constraint. Laws 14.286/2021 and LC-179/2021, both passed in the dead of night and without any public debate, will mean that the new government, elected by popular will, will no longer have virtually any control over BC actions. Its president and board, appointed by Bolsonaro and viscerally linked to the big private bankers, have now won a guaranteed mandate until the beginning of 2025 and will have powers, previously only attributed to the Executive and Legislative, including to allow complete openings to the dollarization of the economy and liberalization. of speculative flows. Thus, without more control over the monetary and exchange rate authority (now transferred to private banks), the new government will barely have economic, fiscal and development policy instruments. And without them, all social programs and projects tend to become mere illusions. How illusory will also be the recomposition of resources and working conditions of research promotion agencies and universities, their democracy and autonomy, in addition to the much-needed continuation of the expansion – interrupted in the 2016 coup – of public higher education or training of a new generation of scientists, researchers, intellectuals from all areas of cultural and scientific knowledge.

 

Why is a Constituent Assembly necessary?

In order to have the reins of economic policy in its hands and implement social programs that allow recovering and transforming the nation – and in this context, saving our University – the new government will need to revoke this entire set of dozens (perhaps hundreds) of laws and ECs that were imposed since 1988 (and particularly since 2016) to block its action. It would also have to face deeply coup-like and anti-popular institutions – which would only be possible with a Reform of institutions that would democratize them. It would have to approve a series of other ECs and laws that regulate what was never in the Charter of 88 or in ordinary legislation, but which is necessary to guarantee the great structural Reforms: Agrarian, Urban, Tributary, Media, Armed Forces, Judicial etc.

But such tasks, much more than herculean, are impossible within the framework of the current Congress (with the electoral rules in force) and the other institutions that will impose the garrote represented, among others, by the infamous “coalition presidentialism”. The parliamentary majority is viscerally against any democratizing reform that threatens its privileges and interests and those of the dominant classes with which it is committed. The pro-Lula bench (uniting all progressive parties) – no matter how hard we strive for it to grow in these elections – will under no circumstances have anything approaching half of it, let alone the 3/5 needed for approval (or repeal), respectively of bills and ECs.

Only a Constituent, Exclusive, Originating and Sovereign National Assembly can carry out such tasks, including the complete reform of the State's own institutions of power. Assembly that never existed in the history of Brazil. Our Constitutions were either granted (1822, 1891, 1937, 1967) or written by those who did not have a mandate to do so: the parliamentarians (elected by prior rules, vitiated, and under the tutelage of pre-instituted powers) were (illegitimately and without sovereignty, therefore) invested with constituent power (1946 and 1988). The 1946 constitution, for example, although it established individual rights, the right to strike and the novelty of stability in employment after ten years, maintaining state tutelage over trade unions, created new obstacles to the use of property for social welfare. and removed a previous proposal from the 1934 and 1937 constitutions for the progressive nationalization of banks and insurance companies, mines and mineral deposits.

It was the expression at the time of the interests of the minority, since more than half of the population could not vote because they were illiterate or because of participation difficulties. Although the 1988 constituent had greater popular participation in the vote, it was not exclusive, it did not achieve a deep and definitive break with the authoritarian institutions of the dictatorship, limiting itself to the fact that the deputies shared their mandate with the regular tasks of legislators.

Therefore, the members of a true Constituent Assembly, of course, cannot be the deputies and senators, nor any other dignitaries of the other institutions in force.

 

What would a true sovereign Constituent Assembly look like?

Far from intending to present a ready-made booklet here, we suggest the following general lines on how a Constituent Assembly can be developed, starting from recent historical experiences – aware that such a process is determined by the actual dynamics of the movement of the masses in their struggle and by the correlation of forces in society.

That said, it is natural that the members of a Constituent Assembly should be popular representatives elected only and solely for this specific mandate: to draw up the new Magna Carta, vote for it by simple majority and promulgate it. Once this is done, their mandates end and the Assembly is dissolved.

Being original, the Assembly will have the power (and the duty) to recreate (from the origins) the other institutions and powers of the State: when it finishes its work, it will make it possible to call new elections (parliamentary, presidential, etc.) constitutional provisions, which will also define the establishment of the new institutions, including transitional deadlines and procedures.

The Assembly will be sovereign insofar as its works will not suffer interference, guardianship or supervision of any kind from the other previously instituted powers (judiciary, media, Congress, FFAAs, big capital, etc.). For this purpose, for example, the election of the Constituent Assembly must be carried out with (campaigns of) exclusively public financing, unicameral, with voting in list-programmatic, proportional (the vote of each voter, regardless of their state, counts the same) and with representation of indigenous peoples.

There are several possibilities as to how to convene the Constituent Assembly. But we know that none of them will be easy (given the carnal opposition of the media and other powers) and all will require increasing popular struggle. Lula, once elected, can present the proposal and, with the support of the mobilization and popular pressure at the beginning of his mandate, he can open not only the debate in society, but also the way to effectively guarantee his summons.

 

Does the correlation of forces allow for a progressive Constituent Assembly?

The struggle in question demands a great popular mobilization that links the demands and concrete and urgent social claims (replacement of wage losses, employment for all, repeal of the labor and social security reforms, funds for Public Education and Health, renationalization of Eletrobras, return of the monopoly and price control by Petrobras, demilitarization of the police and an end to the slaughter of black people and the peripheries, etc.) with the need for a Constituent Assembly to guarantee its fulfillment. This will make it possible to explain to the broad masses the meaning and urgency of a Constituent Assembly, as well as to popularize the campaign for its immediate convening.[iii] And, given the critical and revolting situation in which the suffering Brazilian working people find themselves, such mobilization is latent and totally feasible.

And this is not something new, nor is it isolated. Similar movements have taken place throughout Latin America, the most recent case being the powerful popular mobilizations in Chile. Recalling that in the recent past there were also large similar processes (some more others less advanced) in Bolivia, Ecuador, Venezuela and Peru, putting into debate the path of the constituent as a democratic instrument of mobilizations and structural democratic transformation of societies. In France, the majority candidate on the left, Jean-Luc Mélenchon, presented the proposal for a Constituent Assembly.

 

The fight has already begun: Constituent Assembly with Lula!

On the 2nd of July last one act for a “Sovereign Constituent Assembly with Lula President” took place in São Paulo, with more than a thousand present, social movement activists, youth, trade unionists and PT militants.[iv] The debate within the PT and among left-wing militancy begins to develop.

The enormous popular dissatisfaction with the exhausted and bankrupt institutions of the country favored the outbreak of a campaign for the Constituent Assembly. But, obviously, it would be greatly facilitated by the engagement of the PT, other leftist parties and trade union and popular movements. This year's general elections, by the way, are an important point of support. The marriage of the Lula Presidente and the Constituent campaigns, by helping to point out a real and feasible way out for the people, will create a mutual symbiosis that will strengthen both. It will make it possible to release and boost the deep social forces that call for structural changes in the country.

And it will be these forces, with Lula, that will create the conditions for convening a true Constituent Assembly. Forces that, if set in motion, should also considerably change the correlation of forces in favor of the working classes, democracy and national sovereignty. This will allow, once a Constituent Assembly is called, to achieve enormous victories and popular and structural conquests.

*Alberto Handfas Professor at the Department of Economics at UNIFESP.

*Everaldo de Oliveira Andrade He is a professor at the Department of History at USP.

 

References


Datasheet: https://datafolha.folha.uol.com.br/opiniaopublica/2013/07/1304513-maioria-defende-constituinte-para-reformar-politica.shtml, 01/07/2013.

DWEK, E., OLIVEIRA, A., ROSSI, P. (Coord). Austerity and regression: social impacts of fiscal policy in Brazil. São Paulo: Friedrich Ebert Foundation, v. 1, 2018.

FAGNANI, E. (Org). Social Security: Reform to exclude? Dieese/Anpif, 2017.

“The PT and the Constituent Assembly: 1985-1988”. Perseus Magazine, No. 6 – Year 5. pp. 184-6. FPA Sérgio Buarque de Hollanda Center.

Notes

[I] In Brazil, the vote in parliamentary elections is in the person of the candidate (uninominal). This facilitates depoliticized and personalistic voting, favoring the candidacies of famous media people who hide their program (in general, favorable to the reactionary agenda of the media monopolies). A clear example is the case of Tiririca. In his campaign, he said: I have no idea “what a deputy does. But vote for me.” Being a very famous TV actor, he was the most voted in Brazil with 1,3 million votes (2010). In several countries, with a more democratic and politicizing system, voting is by list. The voter does not vote for the person, but for the list (chapa) of party or coalition candidates, according to their collective programmatic platform.

[ii] One of the few progressive ECs, an exception that confirms the rule, was the one that guaranteed labor rights to “Domésticas”, EC-72/2013. But most of its effects were canceled out by the labor reform (2017 – 2021).

[iii] In 2003, responding to the mobilizations of June of that year, Dilma proposed on a national network the convening of a Constituent Assembly for Political Reform. Behind her back, in the following hours, her deputy Temer conspired and stabbed the proposal, forcing the president to abort it. It is interesting to note, however, that Datafolha search made in the same week pointed out that 68% of the population was in favor of such a measure. Unfortunately, no polling station has ever repeated this poll. But this shows the enormous potential of a mass campaign for a Popular and Sovereign Constituent Assembly.

[iv] https://www.brasil247.com/blog/nao-queremos-lula-engessado-diz-vicentinho-em-ato-pela-constituinte

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