In the framework of the anniversary of Brazil’s first Constitution, we reflect on the fundamental role that the 1988 Magna Carta plays in guaranteeing citizens’ rights and maintaining political obligations in the post-military dictatorship country. According to the professor and master in State Law from USP, Leonardo de Moraes , the inclusion of the basic legal notions of Human Rights, present in the Constitution, in the cultural and educational formation of the population is crucial for the strengthening of democracy and the distinction of Brazil in amid social chaos.
How would you describe the evolution of Brazilian constitutions throughout history, from the first promulgated in 1824 to the current one in 1988?
Brazil has had seven Constitutions to date. The 1988 constitution, called the “Citizen Constitution” in force, is the seventh adopted in the country. It was promulgated by the National Constituent Assembly, that is, the group of parliamentarians formed by senators and federal deputies, with emphasis on the figure of then deputy Ulysses Guimarães, who led it. The first Constitution of Brazil, which was dated 1824, during the monarchical period, was granted by Dom Pedro I, who issued it by force of his own hand, without the prior approval of a Parliament.
The other Constitutions were those of 1891, 1934, 1937 and 1967. The Constitution of 1891 was promulgated; that is to say, it obtained prior approval from a group of parliamentarians, and with it the Republic was established in our country, as well as Federalism and the separation between State and Church. The 1934 Constitution succeeded it, and was also promulgated. However, 3 years later, the 1937 Constitution came into being, under the hand of Getúlio Vargas, supposedly with the intention of protecting the country from the political-economic Liberalism that prevailed in the world and with a clear desire to concentrate political power in his hands. Nine years later, in 1946, faced with the loss of political weight by Getúlio Vargas, a new Constitution was promulgated, the result of an effort made in Brazilian politics to implement a more democratic regime, with more liberalist values in vogue in Brazilian politics. era. Twenty-one years would pass, and in 1967 came the sixth Constitution of Brazil, which was granted by the military to precisely legitimize the coup carried out in 1964 and, in the end, allow the carrying out of institutional acts that evaluated the measures of revocation of rights, as it was AI-5 that legitimized the persecution, arrest and disappearance of thousands of people.
What were the main milestones and challenges faced by Brazil during this period of construction and revision of constitutions?
First, we need to understand the terms used in the question. By “construction” of a Constitution, we will understand the promulgation of the constitutional text by a National Constituent Assembly or the granting of the constitutional text by a despotic government. By “revision” of a Constitution, we will understand the movement of the National Congress in the constant improvement of the current constitutional text, through the so-called Constitutional Amendments.
Every time there is a political desire for a “new” Constitution, what suffers is the country’s own legal system, as there is the (fictitious) death of Brazil, which loses the basis of validity of all other laws in force. There is a moment of suspension, a time gap that all other laws will face until it is known whether they have been “received” by the new constitutional text, and this has serious consequences and enormous impacts on the lives of the population, as it generates legal uncertainty and a rush to the Judiciary. For example, issues linked to social security, social benefits, issues of free expression and media concessions, and many others. Because, by “granting” (presenting by force) or “promulgating” (after parliamentary procedure) a new Constitution, all the rights and guarantees of citizens can be reviewed, limited, profoundly altered at the whim of the political winds that generated the constituent movement. Nothing would prevent, in theory, after a political coup, the right to property itself from being revised, or even the right to equality between men and women. Because the moment a Constitution is “born” everything is, theoretically, possible, and the only force that moves this new conformation of the Social Pact is political force, which may be contaminated by this or that radical ideology. This is the greatest risk a country can be subjected to and, for this reason, talking about a “new Constitution” is, especially from a historical-legal point of view, a demonstration of ignorance of its importance and the stability that its existence provides for the society.
The constant revisions of the constitutional text, as an exercise of secondary Constituent Power through Constitutional Amendments, is healthy and is part of the very conformation of contemporary Constitutions. However, our Magna Carta has a “hard core”, called “immutable clauses” that can never be modified, not even by constitutional amendments. This core is linked to individual rights and guarantees, the existence of Federalism and other issues that could not be changed – unless, of course, there is a political coup and the establishment of an original Constituent Assembly (which, in theory, can do anything) .
The challenge of the existence of a Constitution is constant, as is the struggle of a body to stay alive. Our current Constitution has a complex and very current body of text. Hence the need for legal interpretations by the Federal Supreme Court and other legal operators, in an expression that we could compare to the “immune system” of the legal system itself. The Legislative and Executive powers are also obliged to exercise control over the constitutionality of their acts and bills, on a daily basis, so as not to produce effects that violate the rights and guarantees provided for in the Constitution. This work is daily, and directly affects people’s lives, on issues ranging from defending a tenant’s rights before the owner, to the rights of a family man to obtain recognition of his employment relationship with a company. Because these demands, theoretically in “legal retail”, bring other questions of constitutional background that, sometimes, lead the entire system to reinforce this or that interpretation that best serves the population, according to the best interpretation of the constitutional text.
Now, outside the legal world, the biggest challenge is always the political one. Political forces may try to discredit the balance of powers provided for in the Constitution, or use a “reformist” discourse that, in truth, does not envisage improvements to the constitutional text itself, for the good of the people, but proves to be a possible trick for concentrations of power and compliance with radical ideologies.
In your opinion, what is the social and political impact of the promulgation of the 1988 Constitution on Brazilian democracy?
The 1988 Constitution is alive and operative in the lives of each Brazilian, but unfortunately, few know its importance. Brazil has a series of social rights provided for in the constitutional text, which bring a “cutting-edge” understanding with regard to promoting equality and fraternity among its citizens, only requiring greater effort and training for their exercise by the Executive Branch, and that are regulated by the Legislative Branch.
We can say that the 1988 Constitution is, politically, a center-left constitution – despite the terms left and right being out of use and not correctly explaining the different nuances of world politics. Let me explain: we have the vision of a Welfare State and a range of clear resources and express rights for citizens that have no parallel in any other country in the world. The existence of regulatory agencies that seek to balance economic activities, the existence of a single health system, the existence of free education, the existence of foundations and public companies managing certain economic activities – all of this is an expression of a State active in the market, which demonstrates that “constitutional Brazil” is far from pure liberalist precepts and is closer to the figure of an active State, which is in accordance with the ideology of social protection.
The 1988 Constitution was born after the end of the military regime, and brought about a new Brazil that, legally, was only born on October 5, 1988. In other words, our country is, under the eyes of the Law, only 36 years old. And this nascent Brazil is not a liberalist Brazil, which allows everything to the market, but a Brazil that wants to promote the dignity of its citizens. Hence the nickname of our Magna Carta, “Citizen Constitution”.
How did the 1988 Constitution contribute to establishing the rights of citizens and the obligations of political entities in post-military dictatorship Brazil?
The 1988 Constitution brought all the rights and guarantees of man achieved over the centuries, but it went further. She has a fine tune regarding equality rights, which permeate social rights, in compliance with Rui Barbosa’s famous expression of thought: “there is only equality when we treat equals equally, and unequals unequally, to the extent of their inequality”. That is to say, it brought mechanisms for the social promotion of real equality, which goes beyond simple formal equality. These benefits are there, they are used and breathed daily by the population, without realizing that their 13 salaries, social security benefits, social or age quotas, are expressions of social equality, resulting from the provisions existing in the constitutional text.
One of the greatest guarantees to the population present in the Constitution, and known to few, is the existence of parity of power and strength between the three powers. Yes, the Legislative, Judiciary and Executive are equal powers and equally strong in the design given by the 1988 Constitution, it is worth saying: the presidents of the Federal Supreme Court, the National Congress and the Presidency of the Republic are on an equal footing. None of them is more powerful than the other, since each has the function of exercising its own constitutional powers. This is unknown to the people, who still believe that the figure of the President of the Republic can and does everything. However, our Constitution is a reliable expression of the balance of powers of the historic “tripartition of powers”.
How important is it to include basic legal notions of Human Rights, present in the Constitution, in the cultural and educational training of the entire population?
Human Rights must be considered close to the Natural Law of All Things. That is to say, they must be seen as apolitical (outside political ideologies) and as immutable clauses. Each and every one of the rights that protect human individuality and collectivity were the object of struggles by our ancestors, conquered with blood, effort and a profound exercise of intelligence to become a constitutional text.
Therefore, it is necessary to teach the new generations that Human Rights are not negotiable. They cannot be restricted by any political regime, under the excuse that, by doing so, they would benefit this or that political regime. Freedom, equality and fraternity are non-negotiable, they are the corollaries from which all the details provided for in the Constitution of the Republic derive.
It is necessary to create a specific subject, called “Natural Law” or “Human Rights”, taught from the 7th year of Elementary School onwards which, alongside the subjects of Philosophy, Geography and History, increases young people’s contact with regarding the origin of humanity’s non-negotiable rights, as well as so that they know the “rules of the game” for living in a continental country like Brazil.
In this sense, it would be important to review the final stages of Elementary School and all of High School to focus more on the Humanities area, ensuring a better humanistic awareness of young people instead of using their attention to teach them certain theorems and formulas that will never have applicability. practice in their adult lives. This Exact Sciences content could certainly be transferred to a first year of higher education, or to an intermediate period of 1 or 2 years after High School, in a format similar to North American “ colleges ”. Because we all have one certainty: high school students will become voting citizens and characters on the Brazilian political scene.
How do you evaluate the role of the Brazilian Constitution as a “social pact” that distinguishes the country from social chaos?
Every Constitution is a social contract between rulers and ruled. We can call it a “social contract” or “social pact”. Its existence is equivalent to the “rules of the political game and citizenship” and nowadays, even monarchist countries have them, as does England, whose constitutional history presents the original landmark of Human Rights, that is, the Magna Carta of 1215.
A territory without a Constitution is just a geographic territory, capable of being taken by any other nation or country that wishes to occupy it. A people without a Constitution is just a wandering people, without identity or citizenship, stateless by nature. A government without a Constitution is just a power taken by force, certainly through the use of weapons, which keeps the entire population in fear. This is the so-called “social chaos”, in which the strongest rule and obey the weakest, as in times of absolute barbarism.
As we complete 200 years since the first Brazilian Constitution, what are the challenges and opportunities that arise for maintaining and improving the rule of law in the country?
We address some of these ideas in the questions above. But we return to some points: the main challenge for maintaining our Constitution is for the people to “take control” of it, get to know it, give it the necessary legitimacy and honor so that it does not suffer threats from this or that political faction again. And this only happens with the collective work of institutions, the press, schools and the media in general.
Which aspects of the charter of fundamental rights, present in the Constitution, are especially relevant for Brazilian society, both at an individual and collective level?
We mentioned an extremely important point above that must be made public as quickly as possible: our Constitution provides for the equivalence of power between the Legislative, Judiciary and Executive. None of the three powers has greater legal force compared to the other, and they must coexist harmoniously with each other, always in a system of “checks and balances”, that is, one power controlling the other power to prevent them from going beyond their area of activity and harming constitutional dictates.
This information is so unknown that it is used politically by many Presidents of the Republic, who claim that “only they” would have the legitimacy to command the country and that the other powers “meddle” in issues that would be the responsibility of the Executive. This is untrue, because when we study the Constitution, the equality of powers between the three legal-political figures remains clear: President of the Federal Supreme Court, President of the National Congress and President of the Republic.
And it is based on this untrue and ignorant argument that the risk of new coup attempts lies. Under the excuse of “invisible chains” or “absurd limitations on power”, a politician with dictatorial biases would be able to convince the people that they are a victim of the rules of the Constitution and that it should be immediately rewritten.
And as we explained in previous questions, rewriting a Constitution from scratch is like giving a blank check to a child.
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