[Editor’s Note: I-CONnect is pleased to feature a one-week symposium on the 30th anniversary of the Brazilian Constitution. We are grateful to our conveners, Professors Glauco Salomão Leite and Juliano Zaiden Benvindo, for assembling an outstanding group of scholars to explore this pivotal and turbulent moment in Brazilian constitutionalism.]
—Glauco Salomão Leite, Catholic University of Pernambuco and University of Pernambuco & Juliano Zaiden Benvindo, University of Brasilia and National Council for Scientific and Technological Development (CNPq)
The Federal Constitution of Brazil of 1988 celebrates its 30th anniversary exactly at the moment where Brazilian democracy is under extreme stress and the prospects about the future are possibly more uncertain than any other period since the transition to democracy in 1985. The temporal coincidence says a lot about how Brazilian society has dealt with its past and also about how it has envisaged its future since that constitutional moment. The first round of the national elections took place on October, 7th, and the outcome is worrisome: the far-right candidate Jair Bolsonaro reached 46% of the votes against 29% of Fernando Haddad, the moderate left-wing candidate from the Worker’s Party. The run-off is scheduled to take place on October 28th in an environment that is marked by the rise of a social backlash against the political system and the traditional politicians themselves. The new Congress elected is the most conservative ever since the transition to democracy and fragmentation, which was already one of the most significant in the world, has become even stronger. All this scenario is the outcome of the political polarization that has gained momentum following the political crisis that has afflicted the country since 2014, when President Dilma Rousseff was impeached based on flimsy and controversial reasons. In the middle of such crisis and the serious risks for Brazilian democracy, the meaning of the 1988 Constitution and its importance as a symbol of Brazil’s transition to democracy have become more fundamental than ever.
To discuss this moment, and its importance to comparative studies, we gathered prominent scholars from distinct universities in Brazil to participate in this symposium for I-CONnect and to contribute with analyses of some central subjects that have shaped the Brazilian constitutional life. They are:
- Between Past and Future: The 30 Years of the Brazilian Constitution – Cristiano Paixão and Paulo Blair
- The Challenge of Interpretation and the 1988 Brazilian Constitution – Gustavo Ferreira Santos and João Paulo Allain Teixeira
- Brazilian Federalism and Asymmetries – Marcelo Labanca
- Presidentialism and Crisis of Governance – Luiz Guilherme Arcaro Conci
- Constitutional Reforms in the Brazilian Constitution of 1988: Preservation Through Transformation? – Vera Karam de Chueiri and Katya Kozicki
- What Do “Constitutional Reforms” in the 30th Anniversary of the Brazilian Constitution Really Mean? – Estefânia Barboza and Melina Fachin
For a better understanding of the relevance of this thirtieth anniversary for Brazilian democracy, we have to take into account the political and institutional background in which the Brazilian constitution was drafted. Unlike some other democratic transitions in Latin America, in Brazil, the drafting process was not controlled by any hegemonic bloc and was visibly participatory. Distinct sectors of the organized civil society, which were already increasing in size, influence and pressure within the years of the civil-military dictatorship (1965-1985), participated in the debates during the Constituent Assembly in a process that certainly challenged the so-called “slow, gradual and safe” political openness of the last years of the dictatorship. It was a constitutional moment that, despite visible bargains undermining some of the democratic breakthroughs negotiated during the Constituent Assembly, was by far the most inclusive and open in Brazilian history. The legitimacy of the 1988 Constitution is thereby a cornerstone of Brazilian democracy, a symbol that says a lot where we are and where we are willing to be. Yet, as any constitutional document, it is a compromise full of ambiguities and unresolved matters; a promise that is meant to break with that past, but which carries on sustaining much of that past.
Given that Brazilian history has featured a number of episodes of political instability and profound social inequality, the 1988 Constitution was enacted with ambitious aims. Post-war constitutionalism and the return to democracy in Latin American countries were considerably influential to Brazilian constitution. In fact, it encompasses not only individual rights and freedoms, but a wide range of socioeconomic and collective rights with the commitment to changing the status quo. In this sense, the Brazilian Constitution is a good example of recent transformative constitutionalism. On one hand, constitutional provisions would entitle individuals to claim for judicial remedies in case of political inertia or bureaucratic dysfunctions. On the other hand, one might argue that it imposes substantive limits on political decision-making, which could be considered to be inconsistent with democratic values. Still, it can be said that only in the last three decades those rights received reasonable enforcement by public policies in multiple levels of Brazilian federalism.
Furthermore, and following contemporary democratic constitutions, the Brazilian Constitution has opened domestic law to International Human Rights Laws (Article 5, paragraph 2). However, even though the Brazilian Supreme Court has ruled that international human rights treaties would be placed higher than statutory law in the hierarchy of sources of law, it also disregarded the Inter-American Human Rights Court decision invalidating Brazil´s 1979 Amnesty Law (Gomes Lund v. Brazil), which is the main impediment for investigations of human rights violation during authoritarian regime. That conservative precedent is still valid and opposes the idea of judicial dialogues between domestic Courts and international ones.
One year after the Brazilian Constitution was promulgated, the Berlin Wall came down, shaping a new political dynamic worldwide and opening room for a set of economic ideas sought to promote the free market. This neo-liberalism conflicted with Brazilian constitutionalism, so Congress approved the first amendments, which were responsible for changes in the economic order chapter of the Constitution. These structural changes redefined the role of the government in regulating economy and market. From that moment on, Parliament has drafted a stunning 99 constitutional amendments, although each one required qualified majorities for its approval and despite the existence of unamendable clauses (Article 60, paragraph 4o). Even though most did not modify the core of the Constitution, that is, the structure of government and the basic rights provisions, the average of 3.5 constitutional amendments every year is still striking in comparative terms.
From another perspective, the developments of Brazilian constitutional law in the last decades have much to do with the empowerment of the judicial branch. Indeed, the spread of judicial review and Constitutional Courts in the European post-war democracies has been strongly influential to Brazilian constitutional practice as well. With the strengthening of the abstract and centralized judicial review model, the Supreme Court has turned into a prominent institution in settling highly controversial matters related to moral, political, economic, and social issues. In current days, it would not be wrong to argue that any statute or the major acts of governments could be challenged before the Supreme Court on constitutional grounds. The political question doctrine seems to have lost its weight in recent Brazilian experience and even mega-politics might turn into judicial law case. In this regard, scholars have identified an important shift from self-restraint to a judicial activism and juristocracy, with increasing meddling in political matters and not as much in social and economic rights. This new trend raises important questions about the authority, legitimacy and institutional capacities of the Supreme Court.
The pursuit of limited government and protection of human rights, which is the very core of the constitutional democracy paradigm, cannot be understood separately from the institutional design of each independent branch. The Brazilian case provides an important example which combines a hyper-presidential system with a multiparty system. This equation does not make it easy to ensure a stable democracy and has presented ups and downs. It is true that Brazil has experienced the longest period of stability within its political history under the 1988 Constitution. Yet, it faced two impeachment trials which removed elected presidents: Fernando Collor de Mello (1992) and Dilma Rousseff (2016). In the first case, Collor was the first president elected by the people after the civil-military regime. From this perspective, it was an important test to the new Constitution and it passed successfully with no serious damage. Neither a political nor an economic crisis followed Collor´s impeachment. It seems that the same cannot be argued when it comes to the more recent impeachment. Dilma Rousseff, the first female president in the country, was reelected in the middle of an ongoing political crisis and intense polarization. Gradually, an increasing discourse demanding her destitution took place. With little support in Congress, she was impeached by the Senate on doubtful legal grounds, which divided even more the already fragmented civil society and political forces.
A right-wing political agenda has been enforced since the beginning of the current president Michel Temer´s administration, despite its rejection by the voters in the last three elections. With his direct support, Congress has enacted statutes and constitutional amendments that may infringe several socioeconomic rights. For example, Constitutional Amendment n. 95/2016 freezes social expenditures for the next twenty years and has been considered a vital measure by the government in controlling the economic crisis. Nevertheless, in undermining the social dimension of the Constitutional, these amendments resemble constitutional dismemberments, as Richard Albert pointed out.
Under these circumstances, and given the rise of a strong populist wave in the Brazilian political spectrum, the current election is not only about choosing the next leaders on national and state levels of government. It is about the very meaning and scope of the Brazilian Constitution in constraining authoritarianism upon basic human rights and avoiding a huge step backwards to a reality which, until now, Brazilians thought remained in the past. It seems that this past was latent, just waiting for the right time to re-emerge, and this timing seems to tragically coincide with the thirtieth anniversary of the 1988 Constitution. From this inflection point, the outcome could be a regression to a reality Brazilians thought they had somehow overcome or, on the contrary, the strengthening of the democratic meaning the 1988 Constitution represented.
This symposium on the thirty years of the 1988 Brazilian Constitution explores many of the dilemmas, nuances and challenges Brazilian constitutionalism has endured over the years. It provides not only fundamental insights about the meaning of a relevant example of transformative constitutionalism, but also how and whether such transformations have been enough to overcome the evils that, now more than ever, stubbornly aim to undermine the achievements of the constitutional moment that began thirty years ago.
Suggested citation: Glauco Salomão Leite & Juliano Zaiden Benvindo, Introduction to I-CONnect Symposium: 30 Years of the 1988 Brazilian Constitution, Int’l J. Const. L. Blog, Oct. 9, 2018, at: http://www.iconnectblog.com/2018/10/introduction-to-i-connect-symposium-30-years-0f-the-1988-brazilian-constitution/
 See Diana Kapiszewski. Power Broker, Policy Maker, or Rights Protector? The Brazilian Supreme Tirbunal Federal in Transition, in Gretchen Helmke and Julio Rios-Figueroa Courts in Latin America, (Cambridge University Press 2011), p. 154-173.
 Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale Journal of International Law 1, 1-129.