32 years of Constitution

Image: Telma Lessa da Fonseca


The 1988 Constitution did not represent significant changes in the historical patterns of violence against groups in a position of social inequality

“We learned that the social rights in the Constitution are a dead letter if there is no government to implement them” (Luiz Inácio Lula da Silva)

In one of the many popular events of his caravan through the Northeast in August and September 2017, Lula summed up well an assessment of the 1988 Constitution. If it is true that it innovated in many rights, even more so in comparison with the previous military regime, the itself is not capable of self-fulfilling. It is above all the state institutions, the Executive, the Legislative and the Judiciary, which must make their norms and promises effective.

While the Executive and Legislative are elected powers, subject to change at each election, the Judiciary is characterized by strong continuity. Even in the 1980s, it passed the constituent assembly virtually unscathed. It was not subject to any major democratic reform, so the magistrates and power structures derived from the military regime remained. In the Federal Supreme Court, ministers appointed by the military regime influenced its jurisprudence throughout the 1990s. It was through new appointments that the democratic air slowly and gradually penetrated the STF. In the first instance, the public tenders, which are organized by the tops of the state and regional courts, guarantee the entry of judges with certain technical qualifications, but, at the same time, do not measure their ethical values ​​and their democratic commitment to the Constitution from which they derive. its own institutional legitimacy.

In this scenario, among many other factors, not all of the Constitution's democratic potential was explored by the Judiciary. If it is true that, in general, magistrates profess the ideology of legalism, as if their action were just an application of previous and universal norms, in these 32 years it has become clear that some norms are applied more than others. For example, in relation to property rights, the Judiciary continued to defend the interests of social groups with more resources, in the various issues of tax, administrative and civil law. In this sense, it contributes to perpetuating the extremely high concentration of wealth in Brazil. At the same time, basic individual rights, such as the right to life and liberty for black and low-income groups, are far from effective. The 1988 Constitution did not represent significant changes in the historical patterns of violence against groups in a position of social inequality.

This discrepancy in the application of constitutional rights is part of what Sérgio Adorno (1988, p. 63, 162, 245) characterized as “conservative liberalism”, even if referring to another historical period. In the Brazilian tradition, the exercise of rights is not considered universal, but aimed only at a small portion of the population. It is a legal tradition with strong racist characteristics, explicitly or implicitly, reinforced by teaching in traditional Colleges, as highlighted by Lilia Schwarcz (1993, p. 243-244).

It is true that the 1988 Constitution contributed to unprecedented standards of political freedom in Brazil. Constitutional political rights were reasonably applied by judicial bodies to the entire population. This allowed social movements and popular classes to elect their candidates for the Legislative and Executive powers throughout the post-1988 period, which culminated in Lula's victory in 2002. The governments led by the Workers' Party promoted an unprecedented expansion of the effectiveness of social rights in Brazil. Measures such as the construction of millions of popular housing, the expansion of access to higher education, the generation of formal jobs and “More Doctors” with its thousands of professionals contributed much more to the rights to housing, education, work and life. health than any judicial decision could do. In terms of social rights, as Lula said, the fundamental thing is to have a government willing to promote far-reaching policies for the tens of millions of people who are excluded from their rights in Brazil.

However, with the intensification of political conflicts in the 2010s, due to the economic crisis and the resumption of the strong presence of the United States in Latin America, the Judiciary again restricted the political rights of left-wing leaders, resuming the worst Brazilian tradition. persecution and violence against forms of organization of the popular classes. In the Ação Penal 470 trial in 2012, the majority of the STF endeavored to jail the PT leaders in São Paulo who were responsible for Lula's election. In 2018, in the complex Operation Lava-Jato, the Judiciary finally reached the greatest popular leadership in recent decades. Lula not only cannot run for office, but he cannot participate in the elections by campaigning and declaring his support. With that, the Judiciary, under the 1988 Constitution, participated and paved the way for the resumption of authoritarian projects in Brazil.

Finally, in these 32 years it has been possible to perceive that, within the scope of the three powers, perhaps the Judiciary alone is not the most relevant power for the implementation of the ambitious project of the Constitution in a historically unequal country like Brazil. As a matter of fact, if the Judiciary ensures political rights and the rules of the democratic game, it will already be a great achievement in a country with authoritarian tendencies and under strong pressure from foreign interests. The judiciary cannot allow itself to become an instrument of persecution precisely of those who propose to fulfill and put into effect the 1988 Constitution.

The struggle for a progressive Constitution involves, above all, political struggle, social mobilization and governments committed to its application. It was the political struggle of the social movements and popular classes that produced the 1988 Constitution. It is the political struggle that can also favor and charge the judiciary with the responsibility it deserves in relation to the Constitution and the democratic regime.

Caio Santiago F. Santos holds a doctorate in law from the University of São Paulo (USP).

Originally published on the website Brazil of Fact.


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