This paper seeks to investigate the advances and setbacks of Brazilian constitutionalism in relation to international human rights law, hosting it with part of a Latin American constitutionalism, since the Brazilian Constitution of 1988 is one of those that opens what I prefer to define as “new Latin American constitutionalism”, definition opposed to what some claim for this novelty with the Bolivian, Ecuadorian, Venezuelan, etc. constituents. Among the characteristics of this process, besides the extension of the catalogs of fundamental rights, the strengthening of decentralized representation bodies, among others, is the openness to international human rights law or to “international constitutionalism”, as you prefer, which says respect to the process of expanding the integration through rights that has been taking place in Latin America and is the result of the expansion of the Inter-American System for the Protection of Human Rights (IACHR). However, the paper touch the point of the excess of time we are still spending in analyzing the issue of the hierarchy of international treaties, neglecting other more pressing issues that I will discuss. After all, what is the use of giving constitutional hierarchy to international human rights treaties, currently? This question will guide the present work so that, in the end, we see how important it is today.
The Brazilian Constitution promulgated in 1988 charted a state welfare project aimed at eradicating inequalities based, above all, on the strengthening of the social order and the protection of economic and social rights. It was our first constitutional text to take social economic rights seriously, granting them immediate applicability. However, in social and economic rights above all, there is a bitter taste that echoes the question: why 30 years after we are so distant? In this matter, the 1988 constitution, predicting social rights and guarantees, not only failed to take off but also was under heavy attack with the justification that such constitutional provisions did not have a sustainable financing system. The present paper is an attempt to outline some of the juridical reasons, in our reading of the Constitution, that corroborates with this scenario.
Brazilian dictatorial past has brought a pattern of “hyper-presidentialism,” as a consequence, any abrupt change in people's attitudes toward the president, as well as any sudden drop in popularity, can lead to a crisis that can put the whole political system in tension. The “winner-take-all” model of presidentialism, combined with the history of authoritarianism in Latin America, which has created the image of a president with super-powers also ends up being a source of possible conflicts. In times of political or economic crisis, the President cannot govern without the support of Parliament, highly fragmented and captured, bringing new political instabilities and weakening democracy itself. The present study intends to point out the problems of the engine room of the Brazilian Constitution, especially defending that its presidential model weakens democracy.
The Brazilian Constitution of 1988 did not create the Courts of Audit, which exist in Brazil since the XIX century and nowadays are present in each state and federal governments and serve the purpose to control the public budget and to judge how the officials manage public money. Nevertheless, the Brazilian Constitution promulgated in 1988 gave a fresh role to these Courts, expanding the fields of their action, mainly after Supreme Court decisions, which has interpreted the Constitution and has conceded powers to them. This paper aims to investigate the new role of Courts of Audit, exposing the concerns about the expanded field of the public affairs control and proposing a new organized bureaucratic structure of the Brazilian Government.
Contemporary constitutional democracies assume a dualistic political conception to distinguish the creation of the constitutional law from the ordinary legislation. Both procedural limits to the amending power and unamendable clauses aim to protect the constitution against its substitution or ordinary modification. However, the amending power does not fall into the same category as the original constituent power or the constituted power. Although constitutional amendments do not involve the same level of popular engagement, they should manifest a higher level of public deliberation than ordinary legislation. However, the ease of the amending process with its consequent high rate of the Brazilian Constitution; the removal of popular participation in the amending process; and the open clause expanding unamendable clauses towards an infinite list (art. 5º, § 2º) demonstrate the lack of commitment of the Brazilian Constitution with the specific democratic status of the amending power.
The paper analyzes the factors that allowed the expansion of the Brazilian Supreme Court since 1988 compared to other branches of government, but also in a concentration of decision-making powers vis-à-vis other judges and courts. Institutional explanations prevail, which credit the strengthening of STF to the Brazilian Constitution. But, in this process, what is the role of STF´s justices? To answer this question, the research starts from Ran Hirsch's suggestion, which highlights the role of members of legal and judicial elites as a relevant part in the establishment of a juristocracy, in their claim to increase their power and/or gain international reputation. It supports the hypothesis that brazilian juristocracy is a product of the mobilization and articulation of STF´ justices in parliamentary processes – National Constituent Assembly and constitutional reforms – reinforced by jurisprudence that concentrates in the court the power to establish its own attributions ever since.