[Editor’s Note: This is the first entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]
—Cristiano Paixão and Paulo Blair,University of Brasília
Constitutions exist in time. Not only the the linear count of the days, months and years in which they seek to provide a legal and political regulation to the society. Constitutions are made of memories, traumas, projections and expectations. Constitutional documents deal with past experiences and fears that address the future. Although bound to the present time, they are marked by these temporal inflections. Between activating memory and articulating projects, Constitutions aim to link time itself.
In the Brazilian case, this articulation between past, present and future is directly associated with the dynamics of political changes. In this sense, Brazil is a true laboratory of constitutional experiences.
In less than two centuries, Brazil produced seven constitutions. A significant finding in Brazilian constitutional history is the relationship between political change and the elaboration of a constitution. There is a direct correspondence between the transformations of the political regime and the emergence of a constitution. As soon as Brazil became an independent nation, the Constitution of 1824 was granted, which made the option for a unitary state and the monarchical form. With the fall of the monarchy and the subsequent transformation of the regime into a republic, the 1891 Constitution emerges strongly influenced by the United States Constitution (with its federalism, bicameralism, Supreme Court with life judges appointed by the President of the Republic and approved by the Senate). A Revolution broke out in November 1930, with a change in the relationship between central power and local leaderships and the beginning of a modernization project, still within the framework of liberalism (combined with some state intervention in the economy) and democracy. The Constitution of 1934, drafted by a Constituent Assembly, is the political and legal document that sought to confer durability and stability to this new state organization. But the troubled 1930s would still see the emergence of a new constitution. The brief democratic experience came to an end with the self-inflicted coup d’etat triggered by Getúlio Vargas with the support of sectors of the military. On the same day that the closing of the National Congress was decreed, a Constitution was also granted. Thus, on November 10th, 1937, Brazil became governed by a constitution imposed by Vargas and, as might be expected, this same Constitution provides for the Executive Power to lead the process of modernization of the country.
With the end of the Vargas dictatorship in 1945, a Constituent Assembly was elected. Representing a wide range of political orientations, the 1946 Constitution largely rescued the structure and institutional design of 1934. In 1964, however, a civil-military coup was imposed, the President of the Republic was dismissed, and the military took power. What was imagined a brief intervention became a “night that lasted 21 years.” In that period, a new Constitution, 1967, soon amended by an Amendment Act in 1969, was imposed on the National Congress (already severely mutilated by many removal of members of the parliament from office). These documents sought to give a semblance of regularity and democracy to a dictatorial regime. After the presence of five generals who occupied the Presidency of the Republic (and, for a brief period, a military junta), power was returned to civilians through an intricate process of political transition and re-democratization[1]. A new Constituent Assembly was elected in 1986. The Assembly lasted from February 1st, 1987 to October 5th, 1988, when the current Constitution was finally enacted, which was given the name of “Citizen Constitution” by one of its main authors, Congressman Ulysses Guimarães, who was the President of the National Constituent Assembly of 1987-1988.[2].
The 1988 Constitution completes 30 years at a true crossroad between past, present and future. The main issue related to the pre-1988 period involves the legacy of the military regime. In its transitional clauses (article 8), the Constitution affirms that in the dictatorial period “acts of exception” were committed, that is, it makes clear that the basic elements of the Rule of Law were not respected. The Brazilian courts, however, repeatedly decide on the validity of an amnesty law enacted – on the initiative of the regime – in 1979, which prevents the opening of criminal cases to assert the responsibilities of agents of the dictatorship who committed serious violations of jus cogens of international human rights law.[3] This immobility led to two Brazilian convictions in the Inter-American Court of Human Rights: in the cases of the Araguaia guerrilla group[4] and the murder of journalist Vladimir Herzog,[5] the Court assessed that Brazil did not provide an adequate response to the continuing violation of human rights. Not even the promulgation of the 1988 Constitution was capable of overcoming the authoritarian past.
At present, the Constitution is challenged. Beginning in 2016, following an impeachment request on fragile legal bases, an illegitimate government, with the participation of large sectors of Congress, promotes substantial changes in the Constitution. On the one hand, the Legislature enacted a constitutional amendment that substantially limits public spending for a period of twenty years – without budgetary funds, most of the rights provided in the Constitution will have no practical effect.[6] On the other hand, a federal law drafted in the offices of business entities radically modifies the foundations of Brazilian labor law – even without formal constitutional change, all social rights undergo a sensitive redefinition, and much of the institutional apparatus provided for in the Constitution for examining the demands of workers is moved further away from the population (with the imposition of procedural barriers and costs to initiate lawsuits)[7].
The consideration of the trajectory of the thirty years of the Brazilian constitution of 1988 invites us to ponder the present challenges in its application. Such challenges are not alien to contemporary constitutional democracies, but require, for their understanding, a careful look at the complexity of applying the constitution to social relations.
This reflection presupposes remembering that a normative text, because it is expressed in natural language, when applied in a post-traditional society, does not in itself bring the conditions nor the limits of its interpretation. These societies are immersed in the consciousness of their inevitable hermeneutical condition. The meaning that norms will assume in social experience never has a point that can be considered fixed in time or space. This fluid condition indicates that terms such as family, marriage, property, protection, work, belief, public, private and so many others linked to the enunciation of fundamental rights will be in constant dispute as to their meaning. In other words, the sense that equality and liberty will assume in these societies is in constant struggle for reconstruction or resistance against such reconstruction. Therefore, what is considered as a deepening of the social and normative sense of constitutional guarantees is never exempt from revisions that tend to deconstruct these same guarantees.
The present moment of the Brazilian constitutional experience demonstrates such a risk quite clearly. The experience of the decades 2000 and 2010 in the direction of an extension of constitutional guarantees and of the democratic reinforcement of the inherent tension between equality and freedom was thoroughly reviewed in the years 2016 and 2018, especially with regard to labor relations, minority protection mechanisms, or affirmative actions. The most significant point is that these revisions have been executed precisely invoking the argument that previous “excesses” violated constitutional equality and liberty. This argument made frequent use of the constitution against itself.[8] Responding to the risk of this type of abusive use of the constitution requires both the understanding of the openness of a constitutional text and the rejection of interpretive conclusions that deny the commitment of a political community with both fundamental principles: the right to difference as the guiding principle of equality and respect for such difference as the guiding principle of freedom.
In this way, social guarantees progressively acquired by the historical trajectory of this community can be perceived as patrimony of a present generation and as a legacy to the future ones.
What about the future? This prospective dimension can only be presented in the form of an inquiry, of a concern about the persistence or not of the democratic principles that inspired the drafting of the Charter of 1988. The current and more important challenge in maintaining the opening of the senses of the Brazilian constitution for the future is to be attentive to the possibility of using the constitution against itself. Only one question is certain: as long as there is a constitutional text, there will be a public space, arguments and weapons for resistance, for the dissemination of emancipatory solutions and for the affirmation of the precepts that motivated the Brazilian re-democratization: freedom and equality.
Suggested citation: Cristiano Paixão and Paulo Blair, Between Past and Future: The 30 Years of the Brazilian Constitution, Int’l J. Const. L. Blog, Oct. 10, 2018, at: http://www.iconnectblog.com/2018/10/between-past-and-future-the-30-years-of-the-brazilian-constitution/
[1] All references to Brazilian constitutions prior to the current one were extracted from the following source: Brazil. Constitutions of Brazil: from 1824, 1891, 1934, 1937, 1946, and 1967 and its amendments. Federal Senate (Undersecretary of Technical Publications), published in1986.
[2] See Constitution of the Federative Republic of Brazil. 1998. Official Journal of the Union, Brasília, DF, Oct. 5. 1988, Section 1, p. 1.
[3] See Federal Council of the Brazilian Bar Association – OAB v. President of the Republic and National Congress. Federal Supreme Court [Official Journal of Justice, eletronic version , Brasília, DF, Aug. 6th, 2010]. Argument of Non-compliance with Fundamental Precept 153 / DF. Associate Justice Eros Grau wrote the oppinion of the majority.
[4] Gomes Lund et al. (“Araguaia Guerrilla”) v. Brazil. Inter-American Court of Human Rights [November 24th, 2010]. Available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_219_por.pdf.
[5] Herzog et al. v. Brazil. Inter-American Court of Human Rights. [March 15th, 2018]. Available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_353_eng.pdf
[6] See Constitutional Amendment No. 95, December 15th, 2016. (Amends the Act of Transitional Constitutional Provisions, to establish the New Tax Regime, and makes other provisions). Official Journal of the Union, Brasília, DF, Dec. 16th 2016, Section 1, p. 2.
[7] Federal Law 13,467, of July 13th, 2017 [Official Journal of The Union, Brasilia, DF, July 14th, 2017].
[8] See the arguments in the preliminary decisions pronounced in National Ecological Party v. President of the Republic and the Congress [Declaratory Writ of Constitutionality 43] and Federal Council of the Bar Association v. President of the Republic and the Congress [Declaratory Writ of Constitutionality 44], Federal Supreme Court, Associate Justice Luis Roberto Barroso writing the opinion of the majority.
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