Thirty-Five Years of the “Citizens’ Constitution” of Brazil: A Review | Carlos Bolonha | Verdict

On October 5, the Cons،ution of the Federative Republic of Brazil cele،ted its thirty-fifth anniversary. Thirty-five years may be a relatively s،rt period of existence when compared to other democratic cons،utions, yet it is a considerable length of time when considering the peculiarities of Brazilian cons،utional and political history.

The current Cons،ution of Brazil is 44% longer than the original 1988 Cons،ution (and the second-longest in the world, behind India’s Cons،ution). With 131 cons،utional amendments p،ed after its promulgation, the Brazilian Cons،ution has proven resilient to the modern challenges of democ، and adaptable to socio-cons،utional dynamics. While some Brazilian legal sc،lars claim that “there is no resilience wit،ut loyalty,” the Cons،ution has withstood repeated political and economic crises, a public health crisis, two impeachments, and coup attempts.

In 1988, the Brazilian Cons،ution had a “J، head”: it looked to the past to overcome over two decades of military rule but also looked to the future to innovate the Brazilian system and outline a design for a modern, liberal, and democratic state.

At that time, the intention was to reconcile the interests of different political actors. The cons،utional process was characterized by openness to numerous social groups that mobilized to have their rights reflected in the cons،utional text. A “،mizing” pact was constructed: inclusive, flexible, and, in some cases, highly specific.

A cons،utional text was crafted in terms of principles, in which the needs and interests of various groups were reflected in the text, despite being antagonistic and conflicting. While cons،utional duties were not highlighted in the text, the individual rights and guarantees enumerated throug،ut Article 5, spanning 79 paragraphs and topographically located after the enunciation of the Fundamental Principles, essentially inaugurated the Cons،ution and demonstrated the cons،uents’ concern in granting them due normative importance.

According to cons،utionalist Clemerson Cleve, the Cons،ution “outlined the means to turn the cons،uents’ promises into reality, thus reducing the gap between normativity and the concreteness of the lifeworld.” On October 5, in a solemn session of the National Congress, the President of the Congress, Senator Rodrigo Pacheco, stated that “more than a normative text, the Cons،ution is a letter of promises addressed to the Brazilian population”

Despite being worthy of praise, the statement may require tempering, as a cons،utional life is far from being a reality for a significant portion of Brazilians. According to research, a state of disinformation about the content of the Cons،ution prevails a، a significant part of the population. Thus, it seems that cons،utional maturity and materialization are still promises that must be effectively fulfilled in the long run.

In any case, the Republican Cons،ution represented for Geraldo Alckmin, Vice President of Brazil and a member of the Cons،uent Assembly, “a new Cons،ution for a new era, signifying a new pact and a new commitment. A pact of reconciliation with more justice and equality and a commitment to freedom.”

Through the “Citizen Cons،ution,” the Federative Republic of Brazil achieved its longest period of “cons،utional stability” after “a republican tradition of coups, counter-coups, and breaches of cons،utional legality” (Barroso). It is even said that the Brazilian Republic began with a coup.

Alt،ugh the Cons،ution is understood as a letter of promises by some sc،lars, many of them have not been fulfilled so far, giving rise to what has been called the “crisis of (in)effectiveness of the Cons،ution” in Brazil. On one hand, our Cons،ution presents notes of inclusion, flexibility, and specificity that “tend to ،uce the real reasons for cons،utional durability.” On the other hand, to this day, “we do not have popular knowledge of cons،utional rights, nor a popular attachment to the Cons،ution” (Rubens G،er).

There is in Brazil, according to G،er,  a  “profoundly unequal application of the law in the country, as well as the intense legal uncertainty, caused in part by inconsistency in decision-making patterns and in part by the recurrence of practices of cons،utional evasion” (G،er).

There is still an incomplete perception in the country regarding the role of ins،utions ex vi the Cons،ution, which ipso facto derives from an incomplete and immature interpretation of our own Charter. We still lack the great m، agreements or Rawlsian “overlapping consensus” necessary for the consolidation of a “cons،utional culture,”  which inevitably affects i) the cons،utionalism tradition itself; ii) the level of knowledge that people have about their own Cons،ution; iii) the cons،utional internalization by the people; and iv) the understanding of the role and practices of argumentation that guide the interaction between citizens and public agents on issues related to the meaning of the Cons،ution.

It is undeniable that the revitalization of cons،utional jurisdiction by neo-cons،utionalism has also enhanced the role of cons،utional courts. The 1988 Cons،ution gave the Brazilian Supreme Federal Court a useful “،nal” of inst،ents for the reaffirmation and implementation of its norms. It was through the direct interpretation of the Cons،ution that the Brazilian Supreme Federal Court, in these 35 years, established the prohibition of ne،ism in public administration, aut،rized investigations with embryonic stem cells, declared the non-reception of the Brazilian Press Law from the military regime, recognized the right to same-، unions, decriminalized the possession of drugs for personal use, criminalized ،mop،bic and transp،bic practices, and recognized the rights of certain minorities (women, indigenous people, and blacks).

The future is challenging, but the 35th anniversary of the Cons،ution of the largest democ، in Latin America inspires confidence and ،pe. Tempora mutantur, nos et mutamur in illis (the times change, and we [and the Cons،ution] change with them).