30 years of Constitution: legal experts discuss democracy, institutions and Brazilian reality
Law
11 October 2018

30 years of Constitution: legal experts discuss democracy, institutions and Brazilian reality

The event brought together the legal and academic community to critically discuss the current state of Brazilian constitutional law, debating the process of building democratic institutions and its current reality.

On October 4 and 5, FGV’s Rio de Janeiro Law School (Direito Rio) held the seminar “30 Years of the Constitution: Democracy, Institutions and Reality”. The event brought together the legal and academic community to critically discuss the current state of Brazilian constitutional law, debating the process of building democratic institutions and its current reality. The event was attended by Federal Supreme Court (STF) Justices Luis Roberto Barroso and Alexandre de Moraes, former Attorney General Rodrigo Janot, former Minister of Justice José Eduardo Cardozo and Federal Accounting Court (TCU) Judge Bruno Dantas, as well as legal experts, professors and foreign guests.

Justice Barroso was one of the guests on the panel that discussed “Fundamental Rights and Reality”, on October 5. He began by highlighting the moment of polarization that Brazil is currently experiencing. Then, he recalled some achievements of the Brazilian democratic period, including institutional and monetary stability, social inclusion and advances in Fundamental Rights – which he celebrates, although he considers the struggle unfinished. For the future, Barroso said he believed in the need for political reform and to prioritize basic education in a non-partisan project.

On that same panel, Carlos Bernal Pulido, from Colombia’s Constitutional Court, questioned the existence of a transformative constitutionalism in Latin America. According to him, there are conceptual, institutional and possibility challenges: could the existing constitutionalism in the region in fact be transformative if it still acts in order to maintain the status quo? Ligia Fabris, from Direito Rio, talked about gender inequality in Brazilian politics.

On the same day, Justice Alexandre de Moraes presented a positive view of the Constitution’s 30th anniversary in the panel on “Separation and Conflict of Powers”. According to him, this is the longest period of stability of the Rule of Law in Brazil, and it survived two impeachment procedures. He believes that there was no effective constitutional control until 1988, and the Constitution bet that the STF would wield the moderating power, acting as judge in the conflicts between the Powers. However, he said that the lack of credibility of the Legislative branch contributed to the strengthening of the STF.

Before Moraes’ lecture, professor Daniel Vargas, from Direito Rio, spoke about the four moments of Brazilian constitutionalism in these 30 years: foundationalism, constructivism, managerialism and skepticism. Joaquim Falcão, also from Direito Rio, used his time to talk about what needs to be done so that the STF is more efficient and organized: administrative stability, decisional certainty and legal security.

The former Attorney General, Rodrigo Janot, was one of the guests for the panel on “Constitution and Penal Guarantees”, also on the second day of the event. He reviewed the decision of the STF about imprisonment on appellate jurisdiction and turning state’s evidence as a means of obtaining evidence. Flaviane Bolzan, from PUC-MG, talked about the Brazilian criminal procedure, which has a non-negotiable, punitive culture. Lastly, Thiago Bottino, from Direito Rio, addressed the right to remain silent – breached by compelled attendance –, presumption of innocence and due process.

The day before, lawyer and former Minister of Justice, José Eduardo Cardozo, was one of the guests to discuss “Democracy and Political System”. He spoke about the global crisis of the so-called Rule of Law, which was strengthened and radicalized in Brazil. Michael Mohallem, from Direito Rio, analyzed the impacts of the electoral mini-reforms of 2015 and 2017, and the role of political parties. Argelina Figueiredo, from UERJ, analyzed the crisis of the current Brazilian political system. For her, the current scenario is a result of the distribution of preferences and ideologies in Congress and in society. The panel also included José Luis Vargas Valdez, a Judge at the Electoral Court of the Judiciary Branch of the Federation of Mexico, who was a Foreign Electoral Observer in the first round of the elections.

Over the two days, the event also opened space for discussions on the “Control of Constitutionality and Supremocracy”, “Reality Constitutional Law”, "Constitutional Convention and Democracy”; and “Economic Order and Regulation”. This last panel was closed by Bruno Dantas, a Judge from the Federal Accounting Court, who examined, among other things, the growth of the State separate from the GDP and the individualization of the judiciary and control agencies.