Publié en ligne: 24 juil. 2020
Pages: 423 - 440
DOI: https://doi.org/10.2478/bjals-2020-0009
Mots clés
© 2020 Vanice Regina Lirio do Valle, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Constitutional dialogue, as a learning exercise, starts by understanding the founding commitments that have been articulated in the constitutions of other countries. After all, shared core values might drive the researcher to engage and become involved with other countries’ legal systems, which is a basic requirement for comparative legal study. Pierre Legrand,
Foreign constitutional models can offer innovative solutions to shared problems. In an era ruled by globalization, convergence is a recurrent theme that requires a deeper dive into foreign experiences and culture. Against all odds, the Brazilian constitution, which has now been in place for more than 30 years, has greatly exceeded the average 17-year lifespan of such legal documents.
The capacity of the Brazilian constitution to coordinate political forces and guarantee its own survival as a general framework for how political decisions can be made comes from its own inbuilt resilience. In the words of Jean de la Fontaine, the Brazilian constitution bends but does not break “I never break, I merely bend” (“Je plie, et ne romps pas”). J
In the mid-1980s, Brazil experienced the end of a 20-year military dictatorship. After a loss of support from civil forces and due to internal military rivalries, Jorge Zaverucha,
The redemocratization process called for a new legal framework, a new constitution, to legitimise and regulate the exercise of political power in accordance with democratic principles.. A National Constituent Assembly was summoned in 1985 through the enactment of Constitutional Amendment 26/85, proclaiming that “the members of the Chamber of Deputies and the Federal Senate will meet as one house in a free and sovereign “National Constitutional Assembly.” “The members of the Chamber of Deputies and the Federal Senate will meet as one house in a free and sovereign National Constitutional Assembly on February 1, 1987, at the headquarters of the National Congress. Art. 2. The President of the Federal Supreme Court will convene the National Constitutional Assembly and conduct the session to elect its president. Art. 3 The Constitution will be promulgated after its text is approved, in two discussion and voting sessions, by an absolute majority of the Members of the National Constitutional Assembly.” Emenda Constitucional nº 26, de 27 de novembro de 1985, D
Installed in 1987, the National Constituent Assembly comprised 559 members of Congress who were elected on November 15, 1986. These congressional representatives were required to serve in both a unicameral constituent assembly and a bicameral ordinary legislature. This double function conditioned the creation of a constitutional framework capable of preventing possible future changes to the governing bodies. After all, those same restrictions, once established, might also challenge representatives’ own re-election prospects. There was, moreover, no dominant political force in the National Constituent Assembly, nor was there a previous document to shape the debates. Despite the existence of a draft already prepared by constitutional law scholars, Valentina Rita Scotti, There was also a great deal of resistance from the political forces toward the initial constitutional draft due to propositions such as installing a parliamentary regime. Luís Roberto Barroso,
Despite considerable popular attention to the work of the National Constituent Assembly and the presence of an unusual clause allowing popular initiatives to be included in the draft, During the deliberative process, 122 popular amendments were proposed, collecting more than 1,000,000 signatures.
Conservative forces backed a model of hyper-presidentialism, on the basis that granting extended powers to the executive branch would act as a means to preserve control over substantive political decisions, provided always, of course, that a friendly head of the executive branch could be secured in the future. Progressive forces, on the other hand, promoted an extended list of human rights, which they sought to add to the constitution in the form of clauses that were to be left open textured and ill-defined—a variant application of the known strategy of “deciding not to decide.” Rosalind Dixon & Tom Ginsburg,
After an almost two-year period of deliberation, the new Brazilian constitution was promulgated on October 5, 1988, with 245 articles and 70 transitory provisions intended to regulate the transitional process toward the new legal order. Human rights were also successfully embedded in the new constitution. Article 5 lists 77 different fundamental rights and Article 7 lists 34 social rights—all of which were bolstered by an immediate application clause. However, in an attempt to reconcile diverse aspirations, the final text lacked coherence, which has hindered and will continue to hinder its interpretation. Gary M. Reich, Ulisses Guimarães.
Despite the lengthy deliberative process, the Brazilian constitution can be recognized as an institutional success. After all, it allowed for not only the political transition from a military regime to a democratic state but also granted institutional stability for more than 30 years. Dissenting from the understanding of institutional stability allegedly provided by the Brazilian constitution,
The new Brazilian constitution created a federalist state. A decentralized option was almost intuitive in a country with such a large territorial expanse and, further, such a system was already rooted in Brazilian history. Even in its original organization as a colony under Portuguese domination, Brazil was territorially divided into “hereditary captaincies” (capitanias hereditárias). Bruce A. Antkowiak,
A second distinctive feature of Brazilian federalism is its asymmetry. Despite the formal political autonomy granted to all of the federation's units, there is a strong concentration of legislative competencies in the central government. Asymmetry can also be perceived in the taxation system, which is characterized by the concentration of public revenue in the central government. Despite constitutional clauses establishing mandatory revenue transfers to states and municipalities, the central government receives the lion's share—even though the executive competencies for providing goods and services are decentralized. As a result, there are practical constraints in the proclaimed political autonomy of the subnational federative entities. The central government, for example, frequently interferes in subnational entities through the subterfuge of granting conditional financial support.
The National Parliament operates as a bicameral model, with 513 federal deputies who are assigned a four-year mandate that coincides with the presidential term, and 81 senators who have an eight-year mandate. The Senate is renewed every four years, as is the Chamber of Deputies—one-third of it in one election and two-thirds in the next election. Commentators have identified a structural problem with Brazil's electoral system related to a constitutional clause that prescribes a minimum and maximum number of representatives for each state. “The Chamber of Deputies is composed of representatives of the people, elected, by the proportional system, in each state, territory and in the Federal District. Paragraph 1. The total number of deputies, as well as the representation of the states and of the Federal District shall be established by a supplementary law, in proportion to the population, and the necessary adjustments shall be made in the year preceding the elections, so that none of those units of the Federation has less than eight or more than seventy deputies.” C
The political system is also highly factionalized, with 33 political parties registered in the Electoral Superior Tribunal. This sort of fragmentation leads to what Brazilian political scientists call “coalition management,” meaning that broad and highly negotiated agreements by the president are required in order to advance any legislative initiative. Those negotiations can include offering exchange goods (such as individual budget amendments), coalition goods (such as ministries) and presidential political appointments. Sérgio Praça et al.,
Coalition management is reflected in the fulfillment of the legislative agenda that the Brazilian constitution proposed in 1988, especially in relation to the regulatory development of fundamental rights. Therefore, there is still a significant gap in the implementation of constitutional clauses—Congress indicates on its official website that 119 constitutional precepts still lack some sort of legislative development.
In designing the executive branch, the Brazilian constitution chose the path of hyper-presidentialism, not only strengthening the executive powers related to exceptional situations (declarations of war and states of siege) but also providing the branch with semi-legislative powers and close control over administrative units. This design is the result of a tendency in Latin America to accommodate conservative and progressive forces by aggregating rather than synthesizing the aspirations of both sides. For a historical analysis of how the separation of powers principle has appeared in Brazilian constitutions throughout history,
There are two significant manifestations of hyper-presidentialism in the Brazilian constitution. The first is the power given to the president to enact “provisional measures” (unilateral decrees with the force of law) about almost any subject within the typical legislative decisional domain. The only constitutional requirement is that the “provisional measure” should be promulgated only in exceptional cases of “relevance and urgency”—a vague expression that, for many years, allowed very loose control, even by the judiciary.
Such “provisional measures” are effective as long as they are published, are applicable for a 60-day period and are renewable, unless Congress concludes its deliberations on the matter. In the initial text of the 1988 constitution, these “provisional measures” were allowed to be perpetually renewed if Congress did not address the matter. Between 1988 and 2002, approximately 6,000 “provisional measures” were issued, including profound economic reforms. Luís Roberto Barroso,
A second relevant manifestation of hyper-presidentialism is the power granted to the chief of the executive branch to readdress budgetary resources through “special credits.” “The following are forbidden: V – to open a supplementary or special credit without prior legislative authorization and without specification of the corresponding funds; VI – to reassign, reallocate or transfer funds from one programming category to another or from one agency to another without prior legislative authorization.” C
In 2015, Constitutional Amendment 85/15 expanded the presidential prerogative related to public funds, allowing the executive branch to readdress, reallocate or transfer funds within science, technology and innovation activities by means of an act without prior legislative authorization. “Reassigning, reallocating, or transferring funds from one programming category to another may eventually be permitted, within science, technology, and innovation activities, with a view to enabling the outcomes of projects restricted to these functions, by means of an act of the Executive Power, without the prior legislative authorization set forth in item VI of this article” C
Finally, another relevant feature of the Brazilian constitutional design is its judiciary. Judges in Brazil are mainly selected through public competition. Their office grants them a short tenure after their appointment and provides guarantees such as immovability and stipend irreducibility. Courts are composed mainly of career judges—three-fifths of the total bench in state and federal courts. The other two-fifths are split, one-fifth among members of the public prosecutor's office and one-fifth among lawyers; in both cases, those inducted into the court are chosen by the chief of the executive branch at the federal or state level from a list drawn up by members of his or her own class. Even those who were not originally career judges, once nominated to court, enjoy all the guarantees already mentioned. The constitution gives the judicial branch administrative and financial autonomy with legislative competence in regard to its own budget, institutional prerogatives (including judge guarantees and benefits) and internal organization. The constitutional court in Brazil—the Supreme Federal Court—enjoys the same prerogatives in regard to institutional autonomy. The president has freedom to nominate its eleven justices, the only requirements being that candidates should be over 35 years old, and of “notable juridical learning and spotless reputation” Article 101. The Supreme Federal Court is composed of eleven justices, chosen from among citizens over thirty-five and under sixty-five years of age, of notable juridical learning and spotless reputation. C
Recourse to litigation in Brazil is a serious issue, with lawsuits reaching the 80 million mark in the entire judicial branch in 2018, according to the National Council of Justice.
Writing on the probable causes of judicialization in Brazil, Barroso points to “the broadening of the constitution's scope, the adoption of both European and American styles of judicial review, as well as the constitutionalization of law.” 23 Barroso,
Aside from the general judicialization spread through the entire judicial branch, Brazil is currently dealing with an activist constitutional court. During the first decade of the new constitution, the court was confronted with an unfamiliar and deeply ambitious political document. Justices who had been appointed by the military remained on the bench despite having very little public law experience and little familiarity with transformational constitutions and potential conflicts. Influenced by the political question doctrine, the jurisprudence of the Brazilian Supreme Court remained “quite subservient to what occurred in the legislative or the executive branches.” Emilio Peluso Neder Meyer,
In the late 1990s, the scenery changed. The renewal of the court, with the nomination of justices coming from a public law background, contributed to a new perception of the courts’ role in ushering in the changes intended by the constitution. At the present time, Brazil is experiencing a representation crisis that most countries in the world, at some point in time, have been distressed by—and the court seems to now be concerned with the possibility of congressional representatives driven by minor political interests. Counter-majoritarianism seems to be a relevant feature of providing balance to political practice. Activism is not only practiced by the constitutional court, but it is also defended as a desirable feature with regard to enforcing the foundational document.
One last characteristic of the Brazilian system should be noted to help readers understand the challenges the country is currently facing. The extensive scope of the Brazilian constitution results in its pervasiveness throughout many sectors of life and social relations. Almost every field regulated by law will have a constitutional dimension—through express clauses or by rights or principles that are deemed to be implicit. Brazilian scholars call this phenomenon constitutional pervasiveness. Accordingly, it is the case that lawsuits that challenge the constitutionality of a statute or of an administrative decision are very common. Policing the constitutionality of the law in the Brazilian system is a task shared by all judges and not a special assignment given to particular judges or courts. If many lawsuits can challenge the constitutionality of a particular legal clause and if any judge can proceed with analysis, a system has evolved that allows for the possibility of divergence between rulings. Inequality is always in the shadows, inhibiting the judiciary's ability to secure justice.
Finally, yet importantly, a word must be said about the human rights system that was added to the Brazilian constitution. Adding human rights declarations to the constitution was intended to be a mechanism for triggering legislative action for the realization of human rights, and thereby promoting the inclusive society that progressive forces had dreamed of. The strategy was initiated with the proclamation in Article 1º of the Brazilian state's foundational values, which encompass human dignity and social values such as work and free initiative. The following items were included in the Brazilian constitution with the aim of being carried out as state objectives: building a free, just and compassionate society; eradicating poverty and reducing social inequalities; and promoting general welfare. This commitment to building a social state has now become the subject of much debate.
In addition to an extensive list of expressed human rights, the Brazilian constitution also includes a clause that would require the state to recognize future human rights validated by international law. . The explicit human rights are concentrated in Articles 5 and 7; the former is dedicated to liberty rights, and the latter addresses social rights. Other portions of the Brazilian constitution refer to rights regarding health, social security, environmental protection, child protection, elderly protection and so forth. From these explicit clauses, the Court can also extract implicit human rights, derived from the former, considering the expansive tendency brought by the constitutional commitment with human dignity. All of these rights are bolstered by an immediate application clause contained in Article 5, § 1º. That specific clause was inserted into the text to repeal a previous understanding that fundamental rights—especially social rights—were merely programmatic rules requiring legislative development as a condition to any sort of application. According to that previous understanding, which prevailed under the 1967 Brazilian constitution (which already had a considerable range of human rights guarantees), if there is a lack of legislative implementation of a given right, that right cannot be pursued, especially via judicial procedures.
The immediate application clause is not unique to the Brazilian constitution—similar clauses can be found in other contemporary constitutional texts. The novelty in Brazil's case came at the operational level, when Brazilian scholars turned the understanding of such a clause into a requirement of “immediate efficacy.” The change was not merely rhetorical and has deeply transformed the understanding of fundamental rights and the role of courts in granting such rights. The application of a law is about functionality and operation. Efficacy goes further and involves an assessment of results; it aims to consider the real effects as a sort of public initiative in bringing the problem to the forefront. Affirming that a right has application means that it should be operational and operationalised so that institutional inertia or omission will not be an appropriate response. Declaring that a right has efficacy implies not only potential application (therefore justiciability) but also a concrete effect on the public initiatives carried out on the basis of such a right—proving that its application is compatible with the transformational result the constitutionwas intended to bring about.
It is certainly the case that the intention of turning the immediate application clause into immediate efficacy was to bring about change in the sensitive matter of social inclusion and that this was a direct aim of the new constitution. Changing the narrative was perceived as a required strategy Ana Beatriz Vanzoff Robalinho Cavalcanti. Octavio Luiz Motta Ferraz, Vanice Regina Lírio do Valle,
These are then, briefly, the relevant components necessary for an initial understanding of the Brazilian constitutional system. One can see that to reach a possible consensus within the National Constituent Assembly—and even before that, considering the intense constitutional amendment process—the Brazilian constitutional text embraces contradictory components. The question that remains, after 30 years of this constitutional experiment, is whether the results match the initial expectations.
Assessments of the Brazilian constitutional experiment cannot be made with any formal criteria. Nevertheless, after three decades, some strategic options can be evaluated.
An initial question that arises regarding the Brazilian constitution relates to the success of the textually detailed model—as opposed to a synthetical one. In terms of the length of text of all current constitutions, the Brazilian constitution, with 64.488 words occupies third place in the Comparative Constitutions Project ranking but is closely followed by many other constitutions that exceed 50,000 words.
Historically, as pointed out above, the reason can be attributed to the intention of securing the following items through institutional design: a) the non-abusive exercise of power and b) an answer to the aspirations of numerous interest groups. Explicit norms on states’ limitations and duties seem like a relevant constraint on the violation of the core values proclaimed by the constitution itself. Adopting a detailed text was somehow an attempt to clarify obligations. Judicial review, if necessary, would be a simple matter of asserting the constitutional threat or harm, which should be easier, departing from a detailed text. The first observation is that the Brazilian constitution, considering its length, does not differ substantially from others enacted in Latin America during the same time period. The Colombian constitution, the first one enacted in Latin America after the Brazilian constitution, contains 380 articles; the Venezuelan constitution, from 1999, contains 350 articles—aside from transitory dispositions; and the Paraguayan constitution, from 1992, contains 291 articles. The trend of lengthier constitutions continued in the rest of Latin America.
The paradigm is always the United States constitution, compared with which the length of the Brazilian constitution, with its 248 initial articles, appears excessive. The comparison can be deceptive, bearing in mind the fact that at least eight U.S. states have constitutions that surpass the Brazilian constitution in length: Alabama (369.129), Oaklahoma (98.303), Texas (98.089), Missouri (87.319), Colorado (78.808), Louisiana (77.007), California (74.821), Ohio (68.089)
Critics have commented on the deficiencies of the Brazilian constitution more or less from the beginning, but the constant amendment efforts have mainly resulted in adding precepts rather than reducing them. Curiously, even the final part of the constitution, which contains the transitional provisions of the original text—initially destined to fade into oblivion—was amended and expanded. The original 70 precepts have almost doubled, reaching 114 articles at present. The fear that a detailed text might promote rigidity in the constitutional order has been overcome through two distinct strategies: constitutional amendments and a generous, creative space with regard to constitutional interpretation. Amending the constitution is a more intuitive way to ensure that the text corresponds to the current realities of the social and economic conditions of the country. This is a strategy frequently utilized in Brazil—despite the supermajority required for the approval of a constitutional amendment. “The proposal shall be discussed and voted upon in each House of the National Congress, in two readings, and it shall be considered approved if it obtains in both readings, three-fifths of the votes of the respective members.“ C
A second approach that favors the updating of the text, despite the length of time that this would take, is that the inherent risk of disturbing and even distorting the foundational commitments designed by the original text can be mitigated by subjecting the amendments to judicial review whenever they engage the immutable clauses of the Constitution. “No proposal of amendment shall be considered which is aimed at abolishing: I – the federative form of State; II – the direct, secret, universal and periodic vote; III – the separation of the Government Powers; IV – individual rights and guarantees.” C Yaniv Roznai,
History demonstrates that the National Constituent Assembly intended to embed within the new constitution a transformative project to overcome social exclusion. Though the hope was that consensus about legislative content and states’ obligations would emerge by means of the political deliberative process, fundamental rights and their own guarantees entered the constitutional text through open textured clauses, the precise scope and application of which is unclear and provoke considerable disagreement. Providing a list of fundamental rights in the constitutional text could avoid a thorny debate about the theoretical foundations for that sort of special state protection, but would not eliminate the difficult decisions about who should benefit from such rights and what kind of content should be recognized within those rights. Fundamental rights in the Brazilian constitution are expressed with different levels of indeterminacy, requiring, when there is vagueness, a broader definition of the content of the constitution;
Apparently, members of the National Constituent Assembly had forgotten that regulating socioeconomic rights will always involve distributional choices and trade-offs, which may prove problematic for congressional representatives. The unavoidable distributive decisions associated with a broader debate in social public policies can be difficult, especially in a country with such profound social, geographic and economic differences as those found in Brazil. Defining distributional criteria requires prioritization, and in a country in which the state has been presented as a “universal insurer,” that sort of prioritization is politically costly. On the other hand, leaving things undecided opens up the possibility for a judicial resolution of the matter, transferring the burden of the decision to another agent. If a bad choice is made or if there is collateral damage coming from the ruling, the judge can always be blamed.
Clear evidence that the legislative branch feels comfortable with simply proclaiming vague socioeconomic rights—avoiding the challenging operation of defining the limits of such rights—is seen in the expansion of constitutional amendments contained in Article 6 of the Brazilian constitution. Additions include the right to housing (Constitutional Amendment 26/00), the right to food (Constitutional Amendment 64/10) and the right to transportation (Constitutional Amendment 90/15)—none of which include any detail related to content and none of which have been regulated since their inclusion. The initial response provided by the constitutional framework in respect of legislative or executive inertia cannot overcome the strategical political evaluation carried out by the legislative branch. Goods or services might be granted to a lucky plaintiff, but this will be at the expense of universality. Octavio Luiz Motta Ferraz,
Moreover, in the Brazilian experience, an even worse outcome has presented itself, namely the commoditization of such rights. Whenever scarcity is unsurmountable, judges who feel the urge to grant immediate efficacy to fundamental rights can simply rule that some award of money should be granted to the plaintiff, turning a plea for human rights protection into a sort of a perverted tort lawsuit. Vanice Regina Lírio do Valle,
Expanding the scope of judicial review to encompass the merits of public policies devoted to giving effect to fundamental rights might sound an appealing answer to the difficult challenge of overcoming political blockages in the legislative or executive branches. Judicial reviews in other countries with constitutional grants of socioeconomic rights have been criticized exactly because they do not provide a concrete definition of the goods and services to be delivered. Nevertheless, the key to success for the Brazilian solution remains elusive.
The objection to broad judicial review based on the judiciary's lack of proper institutional capacities is well known. Designing public policies requires not only specific technical knowledge but also a factual understanding of the various components of a specific social problem. It also requires a dynamic follow-up on the preconditions and results associated with the initial strategic choice. None of these features is present in regard to the judicial function. Lawsuits are designed to look backward, decode the presented litigation and present a single definitive and correct solution. Public policy, by contrast, is a tool to plan for the future, proposing an approach to solve an identified problem—a strategy that can only be proven to be intrinsically wrong or require improvements as time goes by. Law seeks stability; public policies coexist with dynamics.
Law deals with certainty. A judge searches for the one legal and right solution. Technicians designing public policies know that in the legal realm, nothing is certain; even science does not claim to provide certainty. Public policy designers aim for the best possible solution—even if it is really second best. Advancing through
Transposing the moral claims at the basis of the human rights discourse into the language of law is a strategy in the long-term fight for the protection of human dignity. S
The initial appraisal of the judicial control of public policies is losing support in Brazil. A concern with the need for coherent and uniform approaches on the part of the judiciary in respect of recognition of fundamental rights is leading the National Council of Justice to discuss issues such as the judicialization of health rights, creating a forum to explore strategic possibilities. The deferential judicial approach in regard to the regulatory choices of the administrative state is also being used as a possible criterion for recalling all branches to their own original functions and responsibilities. The enforcement of human rights through the judiciary is clearly not the right option for promoting structural transformation. This is the lesson learned in Brazil.
Drafting a constitution is never easy. Historical and political forces constrain not only the moment in which a constitution is written but also the period of its application. The constitution, operating through the branches of power, can affect people's lives and social relations in ways very different from those envisioned by the country's constituents. Each nation's experience with its own constitution teaches us a little bit about the gap between constitutional expectations and constitutional possibilities.
The Brazilian constitution, as already mentioned, can be considered a successful experiment, given that it consolidated the redemocratization movement and led the country in the direction of badly wanted institutional stability. The constitution provided the response that Brazilian culture required at the time. This does not mean that the constitution is a model to be reproduced uncritically in other places.
One can especially learn from the well-intentioned experience of the social transformation project, which was added to the constitution as an afterthought and by way of democratic concession but which lacked the conceptual clarity that would have compelled the political branches to give it real effect. Hope was its basis; it should have been the emphasis in the deliberation in Parliament. Reassigning the transformation project to the judiciary was never the constituents’ intention—and is not bringing about the hoped for change. Denying reality rarely works—lesson learned!