CLÈMERSON MERLIN CLÈVE
Universidade Federal do Paraná – UFPR (Brazil)
Centro Universitário Autônomo do Brazil – Unibrasil (Brazil)
cleve@uol.com.br
https://orcid.org/0000-0002-9191-9113
The government leader in the Chamber of Deputies, dep. Ricardo Barros, has released, among so many others, an awkward statement: Brazil needs a new Constitution. As a matter of facet, this subject has been showing up from time to time amid Brazilian politics. We have spoken about the necessity of a great constitutional reform or of a liposuction, of a Constituent directed to a political reform, etc. Now, because of the success of the Chilean referendum, the current government, through its voice in Congress lower house, took the opportunity to attack. The idea is to call a referendum to authorize the summons of the original constituent power and set up a new constitutional order. The deputy has stated that today’s Constitution has brough “An excess of rights and is lacking of duties towards the nation” he has also reinstated, just as former president Sarney had declared during the constituent process of 1987/88, “The ungovernable country!” And, he has even stated that it is necessary “To resolve the excess of activism and intervention from the Judiciary.” It is clear that the congressman is reproducing the voice of the president.
Let’s put things into perspective. It is important to emphasize, firstly, that we are not going through a constitutional moment in the country, a period of transition or movement towards the development of a new plural democratic constitutional order such as in Chile. Indeed, Chile has now arrived to the time we went through in 1987/88. The transition in Chile, as opposed to ours, did not lead to the enactment of a new constitution. The scratches from the authoritative and military based constitution of Pinochet have become non-functional today and the country has claimed for another which could provide liberty, equality, and plurality for the Chilean society. It has been quite different for us in Brazil. We have been through a process of transition since 1985, the country has summoned a constituent assembly to break free from the authoritative order we had been under and we have achieved, in the course of a broadly participative and open process, the Federal Constitution in effect, the foundation of our social contract. Chile is following our footsteps, consequently, it is not our place in time to follow theirs.
Our Fundamental Law is, as every work of mankind, a fruit of a historical background and carries many characteristics from that time. It has, certainly, defects. But it is democratic, it is plural, it does not repeal civilization achievements; on the contrary, it has triggered many achievements, it has been in effect for a longer period of time than all other republican Constitutions after the revolution of 1930, it has overcome the trauma of two impeachments, the second one leaving profound scars, and, even now, has managed to resist to a polarized radical era, the rise of intolerance, and the erosion of our democratic commitment. Its declaration of rights and its founding principles constitute a great contribution to western constitutionalism and its organic part, the one that handles the powers in terms of checks and balances, may be criticized several times, but no one will disagree that it has provided instruments which have led to true dialogue and the overcoming of natural and exaggerated tensions of political nature that happen from time to time.
Nevertheless, the greatest advantage of our Constitution is in its institutional design. It provides for an open normative order in line with social reality, it has presented a refined and functional balance that steers its permanence and drives change. Indeed, the essential core, the unamendable articles, have been modestly defined; hence, the other constitutional provisions may be altered by way of a qualified majority, but not unreachable, 3 fifths of the members of both Congress houses in two voting rounds. As opposed to the American Charter, almost impossible to be amended, as such it has been subject to only 27 amendments in two centuries, having the Supreme Court a major role in its necessary improvement; our Constitution may be easily modified, except for some unamendable articles. This openness to the world of life, for society claims and emerging times, maintaining a commitment towards democracy, the republic, and human dignity, has proven the intelligence of its format, design, and configuration. It has been modified more than a hundred times, and, of course, it can be altered another hundred times. Its strength is what some have seen as its fragility – the continuous process of adaptation by way of the approval of amendments. And it must be like this. The future is not blocked, the dead shall not govern new generations to come, the Constitution permits an adequate management of expectations of what is to come next. A reason for admiration and not for criticism.
It is not hard to counterargue the statements of the Deputy. The duties are present, implicitly or expressly, in our constitutional document, the size is nor a reason for discomfort, fundamental rights are what the name implies, rights and not obligations, social rights do not make a country impossible to govern, they are one of the reasons to govern, the assumed problems amid the branches shall not require a constituent assembly summoning to be corrected, and, lastly, all excessive activism from the Judiciary may, within a free and democratic society, can be questioned by procedural remedies, honest and hard criticism from the free press, and responsible politics. There is not, therefore, a strong reason to justify, in this moment, the calling of a constituent assembly to action. We do not live a rupture or a process of transition shadowed by a past dictatorship, the arguments presented are fragile and the Fundamental Law may be modified without much difficulty every time it becomes a necessity. The calling of a referendum, to listen to the people’s demands, so disliked by authoritative governments, has also been barred by an impossible legal problem: it is unconstitutional. The means to directly check the population thereunder our Charter, plebiscite and referendum, are not allowed to authorize the end of our current constitutional order, but, requiring prudence, in very sensible cases, to consult the public opinion upon statutory provisions, to affirm the charter, in order to grant effectively its stipulations.
We can see in all of that, amid all very surreal propositions, frequently promoted by this government, a trial balloon. If the proposal catches, it stands. It won’t catch! The deputy, contrary to his own statement, does not speak for himself. He is the voice of the government in the lower house of the National Congress, that is why his voice must be heard. Power tries, verifies the reaction and the defenses of society, and finding a free zone, triggers its own authoritarian and anti-democratic intentions. This is the nature of the president, who affirms to be, himself, the Constitution; he claims that he has been elected to take ahead, without any resistance, from minorities or from the other branches, the majority’s will, winner of the election, who has given complements to the dictatorial civil-military regime of 1964, who has had a nice relationship with the groups who have been asking for the termination of the Legislative and the Supreme Court, and claims, from time to time, for a new AI-5. All these things are characteristics of a abusive constitutionalism, similar to the one held by the well known non-liberal governments of Hungary, Poland, Turkey, Philippines, or Venezuela, where the president calls all the shots and the others must obey, and all pursuant to the terms of the new Constitutions or reforms which have introduced into the political system non-liberal elements; contrary to an authentic constitutionalism. Those are standings which must be aggressively fought against.
The struggle of Chile is towards a better democracy and for a society of freedom and equality with a new Constitution written partially by women and men who advocate for freedom. The situation, raised by the deputy, is for a justified and festive claim. Although, the words and actions of the government, specially when spoken by the president, have appointed to the risk of the undertaking. We must preserve our Fundamental Law. We should operate, as we have been, through the means it has offered, the objective reforms that experience may steer, because, considering the virtues (which are many), and appointed the defects (when amendments are the remedy); it is important to stand out, restating the title of the article – Brazil does not need a new Constitution.