Insper professor Diego Werneck explains the main changes between the different Brazilian Constitutions throughout history and their value for democracy
The Brazilian Constitution Day is celebrated on March 25. It is the date of the first Constitutional Charter of Brazil, granted in 1824 by Emperor Dom Pedro I. Since then, the country has had six more Constitutions, which represented essential changes in Brazilian political and institutional structures.
A country’s Constitution is its highest law and underpins the rules of an organized society. Its content can be prepared and presented in very different ways, and this implies the social model the population of a particular country will experience. Brazil’s current Constitution, for instance, was written and approved by the Brazilian Constituent Assembly (1987-1988). That happened after a long dictatorial period, and this Great Charter can only be changed through Constitutional Amendments.
For Insper professor Diego Werneck the Constitution is a landmark in which society gathers and creates rules for good social coexistence. “In a country where people have very different views of what the common good is, it is important to find a ground for these disagreements to be possible, within the rules and civilly. The Constitution is that kind of landmark, with people creating rules, which are not always perfect but important to follow, so that dissent is controlled and civilized.”
Check out our full interview with Prof. Diego Werneck in celebration of the Brazilian Constitution Day:
On March 25, we celebrate the Brazilian Constitution Day in honor of the date when our country’s first Constitution was promulgated. What is the importance of this legal instrument in Brazil?
The date commemorates the promulgation of the Imperial Constitution. That is strange since this text lacks several features that we would associate with a good Constitution today. It was very restrictive in terms of rights, coexisted with slavery, restricted the right to vote, and provided for the Moderating Power.
It was important for being a landmark of Brazil’s independence and national sovereignty. That is something very associated with constitutions, in which a community affirms its own rules and autonomy. It also organized [the branches of] power and created structures for the functioning of the central State at the time.
I think this is a day to think not about the 1824 text, but that three decades ago, the Brazilian population organized itself, with all the difficulties of the period, to reach agreements and develop a text that unites us as a nation. It is not necessarily going to please everyone, which reinforces the importance of negotiation and agreement for the democratic game.
Since then, there have been seven other Constitutions in Brazil. What major changes can be seen in the current text, promulgated in 1988?
The 1824 Constitution tolerated slavery at best and, at worst, enshrined this labor regime. To this day, we have dealt with this legacy. The inclusion of the crime of racism in our Constitution was a bold choice, one that is not common elsewhere in the world. However, it is very significant of the arc of learning and debate that links these two texts.
Besides, it is a Constitution that requires proactive central State action to resolve issues related to material inequality and the lack of decent living conditions for people. From the day it was enacted, it has already been at odds with many things that have happened — that is, it intends to be a transformer of reality.
There also has been an evolution of suffrage — the right to vote — in the broadest possible way, with the inclusion of illiterate voters. It also enshrines a system of central State organization with a much higher degree of decentralization than in previous Constitutions. It reflects a great deal of learning in the country, in the relationship between the branches of government and their responsibilities.
Thinking about our current Constitution, the issue of national sovereignty was no longer such a strong need because the message that Brazil is a sovereign state has already been fixed established over the years. On the other hand, it represented the moment of the resumption of popular sovereignty via the preparation of the text by the population itself through its elected representatives. That was quite important achievement.
How do you see the Constitution’s influence in directing the course of Brazilian institutions?
On the one hand, we see some success indicators of the 1988 Constitution in shaping Brazilian politics. For instance, the fact that there was no democratic rupture from it. The impeachment procedure has been used twice without causing a disruption in the electoral mechanism, even if its ways are criticized.
It has become, in a good sense, a mechanism that politicians have appropriated. That is visible by the number of constitutional amendments. It shows [us] that legislators and government officials make an effort to include things in the Constitution. They add new public policies and see the constitutional game as the only one to be played politically.
On the other hand, it is natural to have a learning moment. That is, to look at the 1988 text and ask oneself if some adjustments are not necessary. There is no perfect arrangement, and over time we will come across things that need to be changed. However, these diagnoses do not mean there is exhaustion or some insoluble defect in the Constitution. Our Constitution is very resilient.
As much as it creates limits and controls politics, it does not replace the action of voting and political actors. It is not a machine that forgoes good politicians and capable people. It minimizes damage, makes it harder to spread mistakes, forces the authorities to sit down and talk, but does not substitute for good public policy. We need to separate the two things. We cannot imagine that the Constitution makes us proof against bad rulers.
In your view, what are the main threats to the proper functioning of Brazil’s Great Charter?
One threat is the idea of thinking that we can only add things to it and that no profound reform can be done. It is necessary to have an ability to see possible changes, even more so in a context of crisis.
On the other hand, the main threat remains that of not taking the Constitution seriously, raising questions as to whether it really is so important to comply with what is stated there. There are parts of the Constitution that we see being violated on a daily basis. But it wants to transform that reality. To some extent, it is natural that it does not fully correspond to what is laid out. However, it provides us with a criterion to criticize reality and improve it.
In a political and health crisis scenario, as we are now experiencing in the pandemic, it is very tempting to think that if any critical change has to be made, it has to be made possible today. However, unfortunately, within the constitutional game, one has to accept that the best solutions will not always be admitted by the rules in force.
Another threat today, which is a problem in Brazilian politics, is polarization. Ideally, the Constitutions are conciliatory. Ours, specifically, is a text that accommodates many opinions, one that points in many directions. At the moment when people see things very radically, this virtue of the Constitution comes to be seen as a defect.
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