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
Abstract: The purpose of this article is to analyze the manner in which the constitutional democracy, in light of the political context of decay related to the regime and to the fundamental law in Brazil as around the world, claims for itself the duties considered to be important and urgent: save and strengthen democracy. In order to achieve this result, I have demonstrated that the performance of counterpowers have served to protect society from abusive actions, especially from the Executive. Hereinafter, it is concerned with the strengthening of democracy, when it presents propositions of solutions for the crises of the presidential system and of political representation legitimacy. It concludes that saving and strengthening democracy is a starting point to obtain the possible and desirable combination of true elections and authentic representation.
Keywords: Constitutionalism; Democracy; Counterpowers; Political Representation; Crisis;
Resumo: O objetivo deste artigo é analisar de que forma o constitucionalismo democrático, diante do contexto político de desgaste do regime e da lei fundamental vivido no Brasil e no mundo, reclama as tarefas que se considera primordiais e urgentes: salvar e robustecer a democracia. Para tanto, aponta-se como a atuação de contrapoderes tem servido para acudir das investidas abusivas, especialmente por parte do Executivo. Parte-se, então, para o fortalecimento da democracia, oportunidade em que são apresentadas propostas de soluções às crises do presidencialismo e da legitimidade de representação política. Conclui-se que salvar e robustecer a democracia são pontos de partida para obter a possível e desejável combinação de eleições verdadeiras e representação autêntica.
Palavras-chave: Constitucionalismo; Democracia; Contrapoderes; Representação política; Crise;
Summary: Introduction; 1. Concepts of democracy and the multiple possible imagined solutions; 2. Saving democracy; 3. Strengthening democracy; a) Ongoing recurring concerns; b) The legitimacy deficit; Conclusion.
INTRODUCTION
The subject to be analyzed is of extreme importance at this stage of Brazilian history, it is as imperious as it was during the times when we had just gone through a military dictatorship, and we were debating the issues of a new constitution. The title of the intervention could, in normal situations, suggest an object without a defined limitation, a standard, and lacking of a greater sense of urgency. However, the opposite is happening during this period of tempest we have been living.
Speaking, nowadays, about a constitutional democracy is not a subject of experts, professors, lecturers, lawyers, politicians, and judges. Nowadays, it is a subject of all. It is a discussion which is encompassing all levels of society and became a concern of all citizens of this continental country.
Indeed, there are two points of major concern:
There is broad literature demonstrating that the process which has led democracy to a decay in many places has not been characterized by the use of classic coups, by way of force, but by the continuous erosion of democracy’s fundamental pillars. [1]
On the other hand, a situation of discomfort has emerged within the political landscape between the representatives and the represented, especially within the parliaments, which has contributed for citizens not to recognize in its elected officials’ true representatives of the people. It is a dangerous thought the idea that every politician is a stranger, a distant being, looking for his/her own interests.
Finally, there is the issue of a fraud on the will of the people, as we have seen during Trump’s election and thereon the Brexit. It was possible due to the gathering and control of personal data by the great companies of technology of the world, to convince the undecided. How is it possible to fight against multiple posts which are many times full of fake news or emotions of hate and prejudice, which have interfered with the formation of popular will, breaking the principle of equality, and decreasing the reliance upon the electoral process?
Hence, it is important, at this stage of Brazilian history, to adopt measures to (i) save and others to (ii) strengthen constitutional democracy.
There are uncountable propositions trying to define a concept for democracy, some more demanding, others less. These, in general due to the liberalism, following the thoughts of Popper [2] and Schumpeter[3], they have defined democracy as a mean to an end. The most demanding have associated democracy with the idea of equality, not only of chances, but of social classes; presenting a broad leeway of deliberation seeking for consensus or, in a classical republican way, with the honest debate of virtuous citizens. In another route, Hannah Arendt[4], dialogue with the classical experience of the Greek based on the teachings of Aristotle, perceives democracy with an end on itself. The public space belongs to the citizen, who cannot become a prisoner of his own selfish interest, where he is a king, being obliged to, before anything, contribute to public happiness presenting himself or herself before the ágora as a citizen who must, amid public debate, argue to convince.
We hear about liberal democracy, plural democracy, inclusive democracy, social democracy, deliberative democracy. What matter to us, at this stage, is the constitutional democracy[5], the model adopted by the fathers of the Brazilian constitution – heirs of the republican thoughts, and above all, liberal – and, in this sense, to reduce the concept to its latest definition, to encompass the ideas of periodic presidential terms, alternating leadership, by way of peaceful procedures and equality of changes within the political dispute. With this in mind, it important to speak about what can be agreed by people with different perspectives, doctrines or ideologies. It is important to discuss about something that can be converged as a common agenda of work. Nevertheless, the following solutions could be classified as trivial, limited, and might only be sufficient to walk us through the tempest, and prepare us to a first step towards a better democracy.
The Constitution has been in effect for more the 30 years and the institutions are being resilient. No other Brazilian charter, authoritative or democratic, after the Old Republic, was in effect for so long. This is a good sign. Under its rule, the country witnessed two impeachments resulting on the recalling of two presidents of the republic, and despite of the experienced trauma, especially of the second impeachment, the system resisted.
The reality now is of an extreme right wing government which has imposed restrictions on human rights, such as the fundamental right of life in the midst of the recent pandemic outbreak, resulting on an endless event of avoidable deaths, mainly among the poor; it is associated with the spread of fake news, it is in accordance with authoritative speeches and the dissemination of hate speech by its supporters, even supporting a shutdown of the Brazilian Supreme Court or the National Congress. It is a government which has proposed an opportunistic interpretation of the art. 142[6] of the Federal Constitution, which in the government’s view has authorized a military intervention on the State, prepares files against political adversaries[7], treats its opposition as enemies that deserve to be eliminated; according to the publication of the Piauí Magazine[8], it has intended, for real, a few times, to undertake a coup to implement an exception regime. Finally, it has publicly defended torturers of the military regime.
Hence, this is the moment to provoke society, social movements, the press, the Brazilian Bar Association (OAB), and the Brazilian Association of the Press (ABI) to resist. In the same manner, the governors of good will. Indeed, inside the federation, the other group members which also are part of the division of powers, spatial division herein mentioned, in order to exercise their jurisdiction entitlements, as political bodies of control or surveillance of other manifestations of power.
The opposition, the minority inside the National Congress, has also defended the democracy and the Constitution, making use of the word, amplifying the reach of its voice by way of the press and/or social networking, approaching politics to social movements, articulating among its peers the moves necessary to stop the actions from the Executive against the constitution or the actions that would lead us to a restriction of rights, including by way of the approval of provisions such as the annulment of regulatory decrees and presidential vetoes. The minority parties offer resistance, also by, requesting for information, advocating for the formation of parliamentary committees of investigation (CPIs) or submitting, before the Supreme Court, the judicial review of rules or omissions against the constitution.
Finally, the Supreme Court has performed its duties as a Defense of the rule of law, quashing decisions against human rights, the principle of morality, or the normative speech embodied in the Constitution. For instance, the decision that has reinstated the jurisdictional powers of the State members of the federation in favor of their independence, when applying measures against the pandemic outbreak[9], despite the centralizing will of the Federal Government, which could have led to a dangerous empowerment therefor the president, putting at risk the people’s health and the public interest.
It is important to mention the undertaking of two investigations, one of them has been considered to be quite polemic. The investigation against antidemocratic activities performed by groups of supporters of the president with his consent[10], and the investigation requested by the STF [11]itself, based on a unique interpretation and very much challenged of its internal regulations, the rapporteur in both cases being the Minister Alexandre de Moraes, to investigate the fake news and the threats against the court, the ministers, and their families. The truth is that both investigations, after the issuance of several injunctions, were sufficient to diminish the tensions in which we were inserted, even having issued search and seize warrants against persons working for the Federal Government.
The Electoral Justice has also an important role to play. First, the efficient management of the electoral process; secondly, litigating in an adequate manner, pro rata, respecting the fundamental rights, making room for a certain amount of modesty, vesting itself with the necessary dynamics of the world of ideas in the period regulated for the political campaigns. Besides, advocating against a traditional moralist and paternalist view of politics.
The electoral process, to guarantee equality of arms, in this technical and gigantic society, must regulate the malicious control of fraudulent technological ways interfering with the process of choice and deliberation. In the midst of guaranteeing the exercise of freedom among the market of ideas and the censorship of unacceptable abuses, to perform this sensible task, the Electoral Justice must be diligent. The application of the law, in this case, is not a job for amateurs. The Electoral Law, therefore, has improved.
It is important to verify, in this scope, if the other institutions or authorities were somehow lost due to the mechanisms of capture. I am referring to, particularly, the General Solicitor’s Office of the Republic (Procuradoria Geral da República) and the director of the Federal Police, institutions of the State which should not be at the mercy of the will of temporary governments. It must be mentioned that the heads or directors are not the institutions themselves, making room for some hope.
In light of the performance of the branches of the government, the common goal, once again, is to save democracy, make a long journey until 2022, stop every action in favor of its decay, such as the ones leading to a reelection, imposing conditions that could violate equality of chances in the electoral process, the severance of institutions to obtain advantages for the electoral race, amend the Constitution to allow more than one reelection, the summoning of a constituent assembly or a process of revision of the constitution in a tragic period of history and the strengthening of non-liberal ideas; summing up, to reproduce here what has been attempted in Colombia (more than one reelection) and rejected by the constitutional court[12], or what was successful in Equator, in Venezuela, or in Turkey.
The challenge is, once again, to save democracy. The duty of every citizen and particularly of all lawyers and public officials, during these times is, due to a circumstance of risk, to keep the watch and act politically for the preservation of our achievements, as imperfect as they may be.
The second task is to strengthen our democracy. Turning our democracy stronger requires the implementation of some policies that, well negotiated, might enter the public agenda. They are useful proposals, and at the same time modest. Not speaking here about political justice, of what could be ideal, but only about the possible within the current time frame we have been set. So far, we have discussed about the search for a solution for i) the recurrent crisis of the Brazilian presidential system, and on the other hand, ii) the deficit of legitimacy of political representation.
The first challenge is to soften the hyper presidential system[13]. The Brazilian presidency is very different from its North American counterpart. Whereas, it may be true that in the United States the presidency has become stronger due to the new interpretation of constitutional provisions and of the powers vested in times of war or against terrorism; this presidential system cannot be compared with the Brazilian. In the USA, the secretaries, officers of the president, to whom we call “ministros” in Portuguese, have their names approved by the Senate; there are no laws entitling the president of discretionary powers naming them, and in terms of budget, it is up to Congress to decide its management. In Brazil, we have had a hyper president, with powers to do good and evil, more evil than good, but that in light of the fragmentation of the system of political parties, the president pays a heavy cost to govern, he or she will need to negotiate every case with the parties or with the members of congress to approve its bills at the Legislative. It is very different from what happens in the United States, where the Senate and the House of Representatives are divided between two parties. We may define our presidential system as a system of coalition[14], which does not constitute a harm in itself, not apart from its negative version, the cooptation or primitive presidency, the collision presidency.
At the same time, when the coalition which makes it possible to govern fails, periodic political crisis emerge, for which remedies are very costly for the nation. Either the country falls or the president resigns, or there is a coup, or impeachment is sought, a long, complex, and costly path. Pursuant to the context we have been living, there is not a single chance in favor of the application of resolution mechanisms existent in the parliamentary regime, such as calling for general elections, the approval of a motion of censure, or a vote of no confidence and the formation of a new government.
In light of the aforementioned, for instance, many authorities and writers, Brazilian and from different countries, have advocated for the parliamentary system among us. The last to talk about the subject was the North-American constitutionalist Bruce Ackerman[15], which advocates for Brazil, targeting 2023, the gathering of a new Constituent Assembly for the adoption of the Parliamentary System. This, according to the American Professor, could stop the election of extremists in both left and right wings. However, many articles have been published by Brazilian lawyers presenting the risk, at this stage, of summoning a constituent assembly and affirming that the best, at this point, is to comply with the Constitution, even with the defects it presents in some of its own provisions.[16]
Others, like the ministers Barroso[17] and Gilmar Mendes[18], advocate for the adoption, certainly in a better scenario, of a semi-presidential system, closer to what has been applied in Portugal than in France, in which, as opposed to the Portuguese system, the president, being of stress and crisis, presides a council of ministers and different from the British prime minister. In both cases there is a division between being a Chief of State and the leadership of the government. The direct election for becoming the Chief of State and the duties to be fulfilled take the semi-presidential system apart from parliamentarism. In the case of the Portuguese system, the elected president by way of a direct vote of the people, organizes the government, and later, in compliance with rules and regulations, follows the work of the government, without direct participation, watching mostly for the fulfillment of the constitution. He or she will be taking care of permanent issues and might not deemed to endure contextual and temporary issues, preserving its own authority during periods of emerging crisis to ensure the continuance of the State, of the system, and of the fulfillment of the goals of the constitution.
I am particularly in favor of the adoption of the semi-presidential system, including because it is compatible with the struggle of the Brazilian people for a direct election for president and with the result of the referendum in which the Brazilian people have chosen the presidential system, certainly due to the possibility of a direct election. Nevertheless, the adoption of the semi-presidential system, is not enough to resolve all issues related with governance. This is the reason why Jorge Reis Novais[19], one of the greatest Portuguese constitutionalists, says that the semi-presidential system – subject he has written a great work in two volumes – isolated it would not resolve the national matters which has been derived from the disfunction of the political parties’ framework. The most important matter is, hence, a reform in the political parties’ system. The fragmentation, lack of representation, inauthenticity, fragile loyalty among its members and officers, have compromised the credibility of the political parties’ system. It would be, indeed, the case of having fewer parties, but stronger parties, representatives of the will of the people, true channels of voice of broad sectors of society.
There is herein the so-called barrier clause. It has been reaffirmed by the Ministers Nelson Jobim and Gilmar Mendes, among others, that the Brazilian Supreme Court incurred in a severe mistake when unanimously decided in favor of (ADIs 1351 and 1354 submitted by PCdoB and by PSC)[20] the unconstitutionality of the barrier clause thereunder the Law of the Political Parties (Law 9.096/95), having generated, as a collateral effect, the proliferation of a great number of political parties and organizations. An incentive, as an analogy, due to the possibility of the coalitions to run for proportional elections, which was prohibited by the EC 97/17[21]. Lastly, the judgement which has regulated party loyalty, which would lead to a loss of mandate for the unfaithful, except for the creation of a new party, has also resulted in an enormous increase of new political parties. The decisions give birth to consequences that must be verified in the scope of a prognosis research. Whether it is true that the courts must rule pursuant to principles and not to values[22], taking into consideration normative rules and not the consequences of judgements, it shall not be less certain that, when applying those principles, the consequences, although not being classified as the most relevant grounds for a holding, must also be considered. It is not about pragmatism, but it is a mere analysis of the context in which consequences must be observed. Fortunately, it seems that the situation may be resolved, in part, with the approval of the EC 97/17, with the demand of satisfaction of certain conditions[23] for the access to resources of the public fund for political parties and free time for campaigning on radio and television, which means a rebirth, among us, of the performance clause.
The political parties must be authentic, true, with open doors for the participation of the people, and not simple instruments to comply with the intentions of its leaders. It is also necessary to obtain a minimum of loyalty and fidelity to the party’s ideals, not only providing the fact that all parties must be clearly different from one another. We have had some with these characteristics. I can mention PSOL, PCdoB, and Novo. The others, in general, are constellations of the interests of the party members, mere instruments of access to power or to the money of the fund for political parties. As we have seen it happening in other countries, the strengthening of a democratic process and the solutions for the repeated crisis of the Brazilian presidential system depends upon the functionality, strengthening, and stability of the party system.
We present four propositions of solutions for the deficit of legitimacy problem of representation, which may reach the level that is necessary for public debate.
The first
It is necessary to make adjustments in favor of a pro rata adequacy of State’s representation in the Chamber of Deputies. Yes, it is difficult. The States shall resist this change. But it is important to understand that we have, nowadays, an artificial and unfair definition, conceived during the military regime. We have had, in light of a constitutional provision of a minimum of 8 and a maximum of 70 representatives per State, a problem of sub representation of entire populations and of super representation of others. This has clearly affected democracy. The agendas of simpler societies that have been better represented supersede the ones of greater groups of individuals, especially from urban zones, causing some awkward negative results, distancing, and a deficit of representation when considered the country as a whole. In fact, the States are already represented equally in the Senate. Robert Dahl[24], in a very famous book, addressing the equal representation of the States in the Senate, questioned the democratic characteristic of the North-American constitution. What would he be questioning among us if he knew about our Chamber of Deputies inadequate formation in relation to a faithful representation of the Brazilian population?
The Second
At the same time, it is important to change, for the formation of the Chamber of Deputies, the pure proportional system with the mixed-member proportional of districts system, being elected by the majority running for the seats of the electoral districts, whereas the others would be formed by the proportional system with – as I suggest – a closed list. The classic PR district system is, in fact, simpler, more understandable for the Brazilian people, who is accustomed with the elections for the Executive in the three spheres of the federation and for the Senate, they understand more easily who the winner is and how the game is played. Besides, the system allows a solid bound between the elected official and the represented, making it easier to adopt the recall system. It is obvious that the law of Maurice Duverger[25] must be considered. The mixed-member proportional system normally results in a system of two political parties, which might mean the destruction of the small parties, including the authentic and ideological ones, what would be unfortunate. Nevertheless, no system is free from collateral effects. All must present advantages and disadvantages that must be weighted. In light of the aforesaid, it is imperious to take to the public scrutiny the debate about the adoption, among us, just like in Germany, of the mixed-member proportional district system, what would result in a considerable upgrade.
The Third
The country has asked for, on the other hand, the amplification of direct techniques in favor of democracy, especially locally, as it occurs in other countries. I’d like to mention Portugal, with its neighbors’ meetings and gatherings, and the United States, with the pools which accompany the elections. I would like to mention the recall initiated by the legislative and revoking submissions. It is important to emphasize the local scope, eventually the regional, because, pursuant to the warning delivered by Dominique Rousseau[26], there are problems among the referendums and national referendums. If within the local scope they should be frequent and usual, in the national level they must be governed with significant caution and in such a manner to avoid populism, the formation of unstable majorities, irrationalism; hence, there must be longer periods between national referendums, also because of the emotional discussions about complex and sensible subjects which may lead to negative consequences for the nation and for the people, such as the case of the Brexit or of the approval of new constitutions or reforms proposed by non-liberal governments at the peak of their popularity.[27]
The Fourth
We have faced, lastly, an urgent and serious problem which has compromised our democratic process, the idea of representation and equality. It is a reference to the insignificant presence of minority groups amid the representatives. Making reference to the groups that, in fact, form the majority of the population, like the African Americans and the women. I have pointed out that the adequate solution is not to determine a percentage of seats for minorities therein the houses of congress. But to adopt measures to stimulate and support to diminish this gigantic discrepancy. The National Congress and the Superior Electoral Court, this last to give effect to the legislative provisions approved by the first, are following in the right path when creating incentives for the presence of women on the elections, they have determined a minimum percentage of women for female candidacies[28], granting effective conditions for the dispute by way of the entitlement of resources from the public fund for the political parties and the presence on the radio and television for the campaign. Thus, it is not about women candidatures merely formal, but real. Although, in the future, there must be created a movement for the African descendants, which despite being the majority of the Brazilian population, have continued without adequate representation among the representatives or holding office therein the Executive Branch.[29] Our parliaments, in the federal, regional, and local scopes, do not reflect, due to the aforesaid, the Brazilian human geography, in such a way that the African Americans and the women do not see themselves significantly represented amid the various instances of political decision making.
Conclusion
These points, summing up, are the most urgent matters, the essential propositions that should be implemented to make the union of different thoughts possible in order to meet a national will. I truly believe that this measures, among (i) saving and (ii) strengthening democracy, constitute a good start to, forming a consensus and being part of the public agenda of debates, grant a better landscape to bring together the represented and the representatives, diminishing the deficit of legitimacy from the decision makers and the distancing from the electors which has resulted on lack of interest, attitude, and abstention. It is important to break through the wild and rude populism[30], overcome the “play hard”, repel the consequences of hate speech, retake the civilized “fair play”[31], and recover faith and hope of a better world, a Brazil for everyone, a true political association formed by free and equal citizens. Gilberto Amado used to say in a classic book (Election and Representation)[32], referring to two moments of Brazilian history, that we use to have fraudulent elections but true representation, and now we have secure elections but fraudulent representation. In fact, we need both at the same time: true and secure elections and authentic representation. Let’s work for that.
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VILHENA, Oscar Vieira. A batalha dos poderes: Da transição democrática ao mal-estar constitucional. Companhia das Letras: São Paulo, 2018.
* Lecture given at the VII Brazilian Congress of Electoral Law, organized by the Electoral Law Institute of Paraná (Iprade) and by the Brazilian Institute of Electoral Law (Ibrade), during the panel Constitution and Democracy, composed by the author, the Minister Nelson Jobim, and the Professor Ana Paula de Barcellos.
[1] LEVITSKY, Steven; ZIBLATT, Daniel. How democracies die. Broadway Books: United States, 2018. STANLEY, Jason. How fascism works: The politics of us and them. Random House Trade Paperbacks: United States, 2018. ALBRIGHT, Madeleine. Fascism: A warning. William Collins: London, 2018. BARBOZA, Estefânia Maria Queiroz; ROBL FILHO, Ilton Norberto. Constitucionalismo abusivo: fundamentos teóricos e análise da sua utilização no Brasil contemporâneo. Direitos Fundamentais & Justiça, Belo Horizonte, ano 12, n. 39, p. 79-97, jul./dez. 2018. LANDAU, David. Abusive Constitutionalism. 47 U.C. Davis L. Rev. 189, 2013. Available on: https://ir.law.fsu.edu/articles/555. Access on September 19th 2020. BRAZIL. Brazilian Supreme Court. Petition of Provisional Remedy – Claim of Non Compliance with Fundamental Precept nº 622. Judge-Rapporteur: Justice Luís Roberto Barroso. Brasília, DF, Dec. 12, 2019.
[2] POPPER, Karl R. The open society and its enemies. Princeton University Press: New Jersey, 2013.
[3] SCHUMPETER, Joseph A. Capitalism, socialism and democracy. Routledge: London and New York, 2013.
[4] ARENDT, Hannah. On Revolution, Penguin Books: New York, 2006.
[5] GINSBURG, Tom; HUQ, Aziz Z. How to save a constitutional democracy. University of Chicago Press, 2018. FERRAJOLI, Luigi. Poderes salvajes: la crisis de la democracia constitucional. 2. ed. Trotta: Madrid, 2011.
[6] “Article 142.The Armed Forces, comprised of the Navy, the Army and the Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and are intended for the defense of the Country, for the guarantee of the constitutional powers, and, on the initiative of any of these, of law and order.”
[7] BRAZIL. Brazilian Supreme Court. Sentence. Petitions of Provisional Remedy – Claim of Non Compliance with Fundamental Precept no 722. Judge-Rapporteur: Justice Cármen Lúcia. Brasilia, DF, Aug. 20, 2020.
[8] GUGLIANO, Monica. Vou Intervir! Piauí, n. 167, p. 22-25, aug. 2020.
[9] BRAZIL. Brazilian Supreme Court. Petition of Provisional Remedy – Direct Action for the Declaration of Unconstitutionality no 6341. Judge-Rapporteur: Justice Marco Aurélio. Brasilia, DF, Apr. 15, 2020.
[10] BRAZIL. Brazilian Supreme Court. Investigation nº 4828 – DF. Rapporteur Min. Alexandre de Moraes. Brasília, April 20th 2020.
[11] BRAZIL. Brazilian Supreme Court. Investigation nº 4781 – DF. Rapporteur Min. Alexandre de Moraes. Brasília, March 14th 2019.
[12] COLOMBIA. Constitutional Court of Colombia. Judgement C-141/10. https://www.corteconstitucional.gov.co/relatoria/2010/c-141-10.htm. Access on September 16th 2020.
[13] Thoughts, about the Latin American experience, about the subject it may be checked at: NINO, Carlos Santiago. El presidencialismo y la justificación, estabilidad y eficiencia de la democracia. Propuesta y control, p. 39-56, 1990. GARGARELLA, Roberto. La sala de máquinas de la constitución: dos siglos de constitucionalismo en américa latina (1810-2010). Katz: Buenos Aires, 2015, p. 269.
[14] ABRANCHES, Sérgio. Presidencialismo de coalizão: raízes e evolução do modelo político brasileiro. Companhia das Letras Publishing Company: São Paulo, 2018.
[15] Lecture given at the Panel 80 – Constitutional Jurisdiction in times of crises, for the event “The law in times of Covid-19”, organized by the IDP, mediated by the ministers of the Supreme Court Gilmar Mendes e Ricardo Lewandowski, on June 26th 2020. The author published in Portuguese: Brazil meeds a new Constitution, Correito Braziliense, 13.07.2020. https://www.correiobraziliense.com.br/app/noticia/opiniao/2020/07/13/internas_opiniao,871622/o-brasil-precisa-de-nova-constituicao.shtml. Access in 16.09.2020. Also translated to English: Brazil’s Constitutional Dilemma in Comparative Perspective: Do Chile and Spain Cast Light on the Bolsonaro Crisis, July 16, I-CONnect, 2020. http://www.iconnectblog.com/2020/07/brazil’s-constitutional-dilemma-in-comparative-perspective:-do-chile-and-spain-cast-light-on-the-bolsonaro-crisis?. Access on September 16th 2020.
[16] BUSTAMANTE, Thomas da Rosa, MEYER, Emilio Peluso Neder, et al, Why Replacing the Brazilian Constitution Is Not a Good Idea: A Response to Professor Bruce Ackerman, Int’l J. Const. L. Blog, Jul. 28, 2020. http://www.iconnectblog.com/2020/07/why-replacing-the-brazilian-constitution-is-not-a-good-idea-a-response-to-professor-bruce-ackerman/. Access September 22th 2020. CORBO, Wallace; MADEIRA PONTES, João Gabriel. No Need for a New Constitution in Brazil: A Reply to Professor Bruce Ackerman. VerfBlog, 2020/7/31, https://verfassungsblog.de/no-need-for-a-new-constitution-in-brazil/ Access on September 22th 2020. GALVÃO, Jorge Octávio, ROBALINHO, Ana Beatriz. Por que Bruce Ackerman quer uma nova Constituição para o Brasil? Consultor Jurídico, August 22nd 2020. https://www.conjur.com.br/2020-ago-22/observatorio-constitucional-ackerman-constituicao-brasil. Access on September 22th 2020.
[17] BARROSO, Luís Roberto. A reforma política: uma proposta de sistema de governo, eleitoral e partidário para o Brasil. Revista do Direito do Estado, n. 3, jul./sep. p. 287-262. 2006.
[18] PEC number 79, submitted by the Min. Gilmar Mendes, in 2017. At: <https://www.jota.info/wpcontent/uploads/2017/12/pec-gilmar-semipresidencialismo-vale-esta.pdf>. Access on September 17th 2020.
[19] NOVAIS, Jorge Reis. Semipresidencialismo: o sistema semipresidencial português. vol 1. Almedina: [s.l], 2010.
[20] BRAZIL. Brazilian Supreme Court. Sentence. Direct Action for the Declaration of Unconstitutionality no 1351 and no 1354. Judge-Rapporteur: Justice Marco Aurélio. Brasília, DF, Dec. 07, 2006.
[21] “Art. 17 (…) Paragraph 1. Political parties are ensured autonomy in defining their internal structure and establishing rules on the choice, formation and period of their permanent and provisional organs and on their organization and functioning, and in adopting their criteria for choosing coalitions and its regime in majority elections, it being forbidden to celebrate them in the proportional elections, without requiring linkage among candidates in the national, state, district or municipal level. Party by‑laws shall establish rules for party discipline and loyalty.”
[22] DWORKIN, Ronald. O Império do Direito. Translation Jefferson Luiz Camargo. São Paulo: Martins Fontes, 2007, p. 292.
[23] “Art. 17 (…) Paragraph 3. Political party monies and free‑of‑charge access to radio and television shall only be entitled, according to the law, to political parties that alternatively: (CA 9 7, 2 017) I – obtain, in the elections to the Chamber of Deputies, a minimum of 3% (three percent) of the valid votes, distributed in at least one third of the units of the Federation, with a minimum of 2% valid in each of them; or (CA 97, 2017) II – have elected at least fifteen Federal Deputies distributed in at least one third of the units of the Federation. (CA 97, 2017)”
[24] DAHL, Robert. A constituição norte-americana é democrática? Trad. Vera Ribeiro. Rio de Janeiro: FGV, 2015.
[25] MAURICE, Duverger. Les partis politiques. Paris: Colin, 1951.
[26] ROUSSEAU, Dominique. Radicaliser la démocratie: Propositions pour une refondation. Seuil: France, 2015. ROSSEAU, Dominique. La démocratie continue, Paris: LGDJ, 1995.
[27] ALBRIGHT, Madeleine. Fascism: A warning. William Collins: London, 2018.
[28] Law 9504/97”Art. 10 (…) Paragraph 3 From the number of seats resulting from the provisions of this article, each party or coallition must comply with the minum of 30% (thirty percent) and the maximum of 70% (seventy percent) for canditacies of each gender.” Text given by the Law 12.034/2009. BRAZIL. Brazilian Supreme Court. Sentence. Petitions of Provisional Remedy – Direct Action for the Declaration of Unconstitutionality no 5617. Judge-Rapporteur: Justice Edson Fachin. Brasília, DF, Mar. 15, 2018, has made equal the minimum standard for female canditacies, also to the resourses of the political parties’ fund set for them. The understanding was extended to the Resolution nº 23.607/2019 of the Superior Electoral Court TSE, Rapporteur Min. Barroso.
[29] BRAZIL. Brazilian Supreme Court. Sentence. Petitions of Provisional Remedy – Claim of Non Compliance with Fundamental Precept no 738. Judge-Rapporteur: Justice Ricardo Lewandowski. Brasília, DF, Sep. 09, 2020, has reistated the imediate application of the effects of the judgement held by the TSE, CTA nº 0600306-47, Rapporteur Min. Luís Roberto Barroso, Aug.25, 2020.
[30] FERRAJOLI, Luigi. Poderes salvajes: la crisis de la democracia constitucional. 2. ed. Trotta: Madrid, 2011.
[31] VILHENA, Oscar Vieira. A batalha dos poderes: Da transição democrática ao mal-estar constitucional.: São Paulo, 2018.
[32] AMADO, Gilberto. Eleição e representação, Brasília: Federal Senate, 1999.