ABOUT BRAZILIAN CONSTITUTIONALISM: WHERE ARE WE AND WHERE DO WE GO?

The object is Brazilian constitutionalism. To do so, a historical approach was made, raising the possible origin, the foreign influences of the United States of America and Europe, as well as future prospects. The debate revolves around the role of Common Law in Civil Law, due to the expansion of the American system and globalization. The importation of institutes, the uncertainty of their applications and cultural differences reflect consequences in Brazil, as it happens in the so-called Judicial Activism. Thus, the problem involves the difficulties of the Judiciary in turning to social and political interests, without violating the constitutional precepts. The paper does not propose to exhaust the theme, neither present a definitive solution to this complex scenario. Finally, the research was documentary and bibliographical, resorting in time to the projection of possible destinations, perhaps a proposal of rupture, if related to the New Latin American Constitutionalism.

Freedom of expression in corrosive erosion

In the present panel, it is analyzed the hate speech as erosive variation of the content of the freedom of expression. In this approach, freedom of expression is seen as a structural element of the democratic regime, but this right is not presented as absolute but relative. In this optic, it is focused hate speech against vulnerable groups, as a harmful re-signification of the democratic substratum of freedom of expression, with the capacity to implode, deconstruct and denature it. In this dimension, it is considered the hate speech in the North American and Brazilian jurisprudence. Finally, It is emphasized that the freedom of expression cannot become an oppressive and excluding instrument against hypersensitive groups.

Random Democracy and Constitutional Juristocracy

Through the reaffirmation of self-government and pluralism, this paper aims to propose means of increasing participation and inclusion of the greatest number of actors in the decision-making process in order to give it greater legitimacy from a democratic perspective, either to broaden the participants in the deliberation or to reveal the interests behind the claims. In this sense, it is proposed the formation of popular courts through mechanisms of random democracy, notably the draw, as an instrument of inclusion of the common citizen in the process of constitutional interpretation, more specifically in the concentrated control of constitutionality or judicial review regarding social, political and economic relevant themes. The popular appropriation of the Constitution is promoted instead of the current “juriscentric” monopoly through dialogue with the social movements and other political actor committed to changing reality. This is where democracy acquires its existence.

Judicialization of politics, judicial activism and the Brazilian Supreme Court

On the eve of second round of brazilian presidential elections, regional electoral court ordered the search and seizure of alleged irregular propaganda material inside public universities without a court order. In record time, the case has been shifted from the political arena to the judicial sphere. This paper aims to analyse ADPF No. 548 as a notorious case of judicialization of politics adjudicated by the Federal Supreme Court of Brazil, in which the Judiciary Power plays the role of inspector of the democratic process such as the fifth branch pointed out by Ran Hirschl. In addition, it is possible to verify elements of expansion of power and procedural activism by the court based on individual activist behaviors concentrated by the justices, when pronouncing a monocratic decision only one day after the distribution of the process. This phenomenon characterizes an imbalance in separation of powers, due to interference in issues related to Legislative and Executive Powers.

Judicial deference on the rule-making power of Brazilian agencies for market regulation

On the 1990s, through a political reform, also when the cooperation  between Brazil and OECD began, the model of market regulation agencies was adopted in Brazil. Influenced by USA administrative agencies, Brazilian agencies are rule-making empowered. Controversies concerning the  boundaries of agencies’ rules are usual, considering the separation of powers and the Legislative function. There are no general standards in Brazil to guide the judge´s analysis on whether the agency act was under its legally stated competence or not. Therefore, Brazilian courts oscillate from unrestricted deference on the agencies’ regulation to its invalidation in specific cases. In 2018, it was stated by law that whenever an administrative rule is invalidated  by the judge, he ought to explicit the consequences of such decision, which may discourage judicial activism on this issue. In this scenario, the debate is on the importance of establishing general standards for this kind of judgment.

Unconstitutional State of Affairs in Brazil

The Brazilian Supreme Court has adopted the theory Unconstitutional State of Affairs by influence of Colombian judicial review. Due to failure of public policies against widespread and systemic violation of fundamental rights, the Supreme Court acts as an institutional coordinator, helping state organs overcome political and structural barriers and increase dialogue with the civil society. In the judicial activism, the Supreme Court becomes a key player to coordinate Legislative and Executive branches of government to promote an institutional development. This constitutional adjudication technique guarantees a minimum mandatory level of protection of human rights. This structural injunction model bring up a passionate debate about crisis of democratic legitimacy, judicial intervention and effectiveness of constitutional rights.