Brazilian Constitution celebrates 30 years with challenge of keeping social and political pact

The Federal Constitution will celebrate its 30th anniversary on October 5. The result of a process of transition from authoritarian rule to democracy, the document set forth, among other rights and duties of citizenship, the basic rules for the democratic game.
Law
21 September 2018
Brazilian Constitution celebrates 30 years with challenge of keeping social and political pact

The Federal Constitution will celebrate its 30th anniversary on October 5. The result of a process of transition from authoritarian rule to democracy, the document set forth, among other rights and duties of citizenship, the basic rules for the democratic game. With the purpose of analyzing this period, FGV’s Sao Paulo Law School (Direito SP) organized the meeting “30 Years of the Federal Constitution: Rights and Institutions, an assessment”, on September 13 and 14, in partnership with law firms Demarest Advogados and Mattos Filho Advogados.

Experts discussed how issues related to life and safety, equality, federation, property, freedom, relations between the legislative and executive branches and the current crisis, the judiciary, citizenship, the tax system and public finance have been addressed by the Constitution, as well as their current state.

In this context of transition between authoritarian rule and democracy, Adriana Ancona de Faria, an expert in constitutional law, said that the pact worked out while there was a democratic consensus and a modern agenda .

“The crisis has made us see that the Executive and Legislative branches needed stronger agreements, and many problems have emerged, among them the issue of a multi-party system, which greatly increased the cost of coalition and governability. Thus, the relationship between the Executive and Legislative branches also became harder”, she said in the panel that analyzed conflicts between the Executive and Legislative branches.

Filomeno Moraes, a professor of constitutional law from the Master’s program of University of Fortaleza and State University of Ceará, remembered that the Constitution created a “spinal column” of institutions and argued that political reforms must be incremental, with corrections to those institutions.

According to Matias Spektor, Undergraduate Coordinator at FGV’s School of International Relations (RI), the Federal Constitution established a new regime that reduced the accountability of government agencies, by forcing the Executive branch to produce many public goods, such as the SUS (healthcare system) or education plans, and it has to negotiate with the parliament, which is elected on another platform.

“This negotiation mitigates the social control system of government actions. In addition, Operation Car Wash introduced elements of how this coalition presidential system works, which were not clear to society five years ago”, said the professor.

Oscar Vilhena Vieira, Dean of Direito SP and professor of Constitutional Law, agrees with Spektor that one cannot have an idealized view of the 1988 Constitution and that there was a process of accommodation of interests. However, according to the professor, this constitutional design began to show signs of trouble with the 2013 protests, which threw open the social discontent with this accommodation of interests and privileges.

“In 2013, there was a first moment of rupture against this distribution process, which begins with the degradation of the public service and is related, at its core, to a distributive conflict crisis”, he said.

In 2013, Direito SP released the book “Resiliência Constitucional: compromisso maximizador, consensualismo político e desenvolvimento gradual” [Constitutional Resilience: maximizing commitment, political consensualism, and gradual development], which argues that the 1988 Federal Constitution has not kept the Brazilian political system stable, as it has been able to update and adapt itself to political and economic needs without abandoning its normative ambition. This characteristic is what makes it resilient. Go to this website to access the publication.