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Why Brazil must preserve its Constitution
Gustavo Ribeiro . Nov 01, 2020
Congress celebrates the approval of the 1988 Brazilian Constitution. Photo: National Archives
Constitutions are the legal consequences of political processes, which are at times contentious and bloody, as Brazilian law professor Silvio Almeida wrote in a recent op-ed. He adds that they serve as a “full stop” to bookend an era — and a new beginning for a nation. In Brazil, that process occurred in 1988, when the country passed one of the world’s boldest charters in terms of indigenous rights, public healthcare, and civil protections.
But, as it turns out, allies of President Jair Bolsonaro want that full stop to be changed into a comma.
Congressman
Ricardo Barros, the government’s whip in the House of Representatives, said the Brazilian Constitution has made the country “ungovernable” and promised to present a bill calling for a plebiscite to scrap the current charter for a new one, to be drafted from scratch. He would also propose a change of Brazil’s current presidentialist system of government to parliamentarianism — something the country voted against twice, in 1963 and 1993.</p>
<p>In the opinion of Mr. Barros, the Constitution handcuffs the government by giving “too many rights” to Brazilian citizens. “We should write [in the new charter] the word ‘duties’ more often, as citizens must contribute more to the nation,” he said.</p>
<p>“Mr. Barros is not the first to propose a new Constitution. Every few years, this kind of idea is vented — but it never gets much traction,” says political scientist José Álvaro Moisés, a professor emeritus at the University of São Paulo. “It’s more like a crutch many political groups use to justify their <a href="https://brazilian.report/power/2020/09/11/brazil-administrative-reform-pass-in-congress/">shortcomings</a>. They are not incompetent — it’s the constitution’s fault!”</p>
<p>The government whip was perhaps carried away by <a href="https://brazilian.report/podcast/2020/10/29/future-chile-after-voting-new-constitution/">the recent referendum in Chile</a>, in which 78 percent of voters chose to replace the 1980 Constitution — drafted under the brutal dictatorship of Augusto Pinochet — with a new document, written by a democratically elected assembly to be chosen next year.</p>
<h2>Too many rights? A history lesson</h2>
<p>Disregarding the Brazilian 1988 Constitution as a document which bestows “too many rights” to people shows a deep lack of knowledge of the context in which it was drafted. </p>
<p>(If you want to go more in-depth, <strong>The Brazilian Report</strong> published a <a href="https://brazilian.report/podcast/2018/10/05/podcast-brazilian-constitution/">four-episode podcast series in 2018</a>, celebrating the Constitution’s 30th anniversary.)</p>
<iframe src="https://open.spotify.com/embed-podcast/episode/1et7fKWHd1nF8VKMrlJTSw" width="100%" height="232" frameborder="0" allowtransparency="true" allow="encrypted-media"></iframe>
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<p>Brazil was coming off a 21-year democratic drought, during which political parties were thrown into illegality, and the government’s opposition was brutally repressed by way of arbitrary prison sentences, torture, execution, and forced exile.</p>
<p>Breaking with the dictatorship establishment also meant trying to correct some of Brazil’s appalling social gaps.</p>
<p>Despite political clashes between lawmakers, the new charter of rights was able to include instruments to promote social transformation and enhance citizenship for millions of Brazilians. To an extent never seen before, workers had the right to welfare, to unemployment insurance — and no one would be paid less than the minimum wage. </p>
<p>Economic <a href="https://www.scielo.br/scielo.php?script=sci_arttext&pid=S0103-40141995000200007">studies</a> showed that this decision was the main reason why Brazil avoided a serious hunger crisis during a currency crisis in the 1990s, with senior citizens being entitled to a minimum wage as their retirement pension. Indeed, this changed the role of elderly people within the family unit. </p>
<p>No longer were they a burden to be looked after, but they became bread-winners, contributing to family income.</p>
<figure class="wp-block-image size-large"><img loading="lazy" width="1024" height="683" src="https://brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-1024x683.jpg" alt="ricardo barros" class="wp-image-52108" srcset="https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-1024x683.jpg 1024w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-300x200.jpg 300w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-768x512.jpg 768w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-1536x1024.jpg 1536w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-scaled.jpg 2048w, https://cdn-statics.brazilian.report/wp-content/uploads/2020/11/ricardobarros_001-600x400.jpg 600w" sizes="(max-width: 1024px) 100vw, 1024px" /><figcaption>Congressman Ricardo Barros wants a new Constitution for Brazil. Photo: Marcelo Camargo/ABr</figcaption></figure>
<h2>The key is reforming — not replacing — the Constitution</h2>
<p>Placing the state as a guarantor of basic rights was one of the Constitution’s most important victories, especially in a country as unequal as Brazil. But, at the same time, the charter did create myriad budgetary rules that clogged public administrations, giving elected officials very little agency in how to invest.</p>
<p>Moreover, the text is vague in several points, often saying <em>what</em> the state should provide, but not arbitrating on <em>how</em> it should be provided. And when most aspects of life are refereed by the Constitution, altering it becomes harder, and the country’s <a href="https://brazilian.report/newsletters/brazil-weekly/2020/09/28/bolsonaro-to-make-first-supreme-court-pick-in-brazil/">Supreme Court</a> gets inundated with cases.</p>
<p>But throwing the charter out is by no means the solution. </p>
<p>As a matter of fact, Brazil’s Constitution is highly malleable and has been <a href="https://www.scielo.br/pdf/rbcsoc/v21n61/a03v2161">amended over 100 times</a> in just 30 years. For the sake of comparison, the U.S. constitution, the oldest still in use, has only 27 amendments.</p>
<p>“The subject of a new Constitution often comes back to life as a sign of people’s frustrations with how Brazil’s representative democracy works or doesn’t work. But it belongs to the realm of unreal ‘magical’ solutions that promise to solve all problems at once,” says Mr. Moisés.</p>
<p>Every time a new president is sworn into office, his or her first words are a pledge to respect and enforce the rule of law in Brazil, and to preserve the Constitution. Jair Bolsonaro has broken many of the vows he made as a presidential candidate — but this one he must keep.</p>
<p>With all of its flaws, the 1988 Constitution offers a snapshot of Brazil’s potential. </p>
<p>Despite <a href="https://brazilian.report/power/2020/08/17/president-bolsonaro-threatened-military-intervention-several-times/">21 years of dictatorship</a>, 80-percent monthly inflation, and a deeply unequal and divided society, there was a time when Brazilians knew that they shared a lot of common ground. That it is possible to negotiate with people who hold different views.</p>
<p>And that’s something the country is lacking today.
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