With the rise of a new constitutionalism, mostly in the Twentieth century, it is remarkable the global expansion of judicial review, developing the idea that the Judiciary branch has the power to say the last word on moral and political issues, affecting the democratic principle. Notwithstanding, constitutional longevity does not come just from formal procedural judicial decisions, but rather, it must be built on a democratic order. Consequently, it is not simple to solve this apparent conflict between judicial power and democracy to support a constitutional longevity. However, taking into consideration that judicial decisions are developed in light of constitutional matters, constitutional longevity depends on the rules established by judges related with the community inclusion in the constitutional design, rewriting permanently the meaning of the constitution. Thus, this dialogical perspective brings the balance among democracy, juridical strength and constitutional stability.
The brazilian Constitution of 1988, the so called “Citizen Constitution”, created a new jurisdictional formula to bring Justice to people: the Itinerant Justice.From its constitutional cradle to the streets, rivers and slums, judges are building a new way of enforcing citizenship by meeting the people where they live, and in doing so, finding out what Justice they need.
This new concept is being developed by a group of judges who realizing the the lack and fragility of citizenship in Brazil, due mostly to the social inequality inherited from the long lasting slavery system, are now working to change this social reality
The stories of people who at old ages do not have a birth certificate and/or of couples who live a life together but do not have the money and/or the information needed to get married, are examples, between many others, that the Itinerant Justice helps to bring into light .These experience are the moto to make brazilian judges think about their real role in Society.
Jair Bolsonaro’s election as President of the Republic raises concerns regarding setbacks for the protection of fundamental rights and democracy in Brazil. In two months of government, measures have been presented or adopted that confirm such concerns, such as the following: Monitoring of NGOs, decrees’ notably extend the right to the possession of firearms, the transfer of FUNAI (National Indian Foundation). Its potential implementation is questionable for a number of reasons, three of which will be highlighted: First, the highly fragmented Brazilian political system; secondly, the free press; finally, the Judiciary. The phenomenon underway in countries like Hungary and Poland, where democracy has degenerated almost as fast as it has been consolidated, is not unacknowledged. Since Brazilian democracy is also very young and fragile, there is no solid liberal culture that either imposes an insurmountable obstacle, to the advent of an authoritarian regime.
The relationship between constitutionalism and democracy is now one more time challenged in Brasil. The rise of the new government model with authoritharian and antiliberal features put at risk many accomplishment of the 1988 constitutional system. One of the main reasons is that our pillars of democracy were not well prepered to avoid presidential overpower. The lack of a militant democracy constitutional clauses and the weakness of brazilian concern with deliberative democracy can result in the constitution dangers. The new governmet also is openly against inclusive democracy. This presentation will investigate the types of democracy – representative democracy; deliberative democracy; inclusive democracy; militant democracy and thyranic mesures – to hightlight what is at risk and what can be done to gathering democratic experiences and features help to preserve and avoid the authoritarian results in the constitutional system of 1998. The folowing panelists will develop this theme.