Constitution turns 35 years old; understand the milestones of the letter – 10/04/2023 – Power

Promulgated on October 5, 1988, the Brazilian constitutional charter completes 35 years in force.

Known as the Citizen Constitution, it represented one of the main milestones in the transition from military dictatorship to democracy and enjoyed strong popular participation.

Among its hallmarks is the establishment of a series of rights, such as equality, freedom of expression and the press, as well as health and education. It also brought innovations of great repercussion, such as the creation of conditions for the SUS (Unified Health System) to be established two years later, in addition to the structuring of public defender offices.

What is the Constitution?

In the hierarchy of legal texts, the Constitution is at the top, guiding everything else. It states that Brazil is a Federative Republic, made up of states and municipalities and the Federal District.

It is also what establishes the existence of the three Powers (Executive, Legislative and Judiciary) and imposes limits on each of them. In this design, it is up to the STF (Supreme Federal Court), called the guardian of the Constitution, to interpret what is or is not in accordance with the 1988 pact, as long as it is provoked.

How was it built?

The work of the Constituent Assembly began in February 1987. In total, there were almost 600 constituents, including deputies and senators, of which only 26 were women.

Constitutional law professor at UFJF (Federal University of Juiz de Fora) Tayara Lemos highlights that the Constituent Assembly received more than 120 amendments from different categories, such as the black movement, women’s movement, unions and indigenous peoples.

“Although not all of the amendments’ suggestions were accepted, it is important to consider this openness to society”, says Tayara, who highlights the contribution of women throughout the process. “It was prepared in an analytical, detailed manner, a characteristic that also aims to prevent coups, authoritarian regimes and guarantee rights claimed by different segments of society.”

What are the main axes of the 88 Constitution?

Right from its beginning, the Constitution sets out its fundamental objectives. They are the construction of a free, fair and supportive society; ensuring national development and the eradication of poverty and marginalization and the reduction of social and regional inequalities; in addition to promoting the good of all, without prejudice of any kind.

Part of the concerns of the Constitution were still in opposition to the leaden years. Freedom of expression was guaranteed and censorship was prohibited, and torture was also prohibited.

Among the hallmarks of the text approved in 88 are the right to education, in addition to the recognition that health is everyone’s right and the duty of the State, which two years later was regulated through the creation of the SUS.

“Education was provided for in other Constitutions, but it was not established as a fundamental right that people could demand from the State”, says Wallace Corbo, law professor at UERJ (State University of Rio de Janeiro) and FGV Direito Rio. He also highlights the role of the Constitution in structuring public defender offices across the country, which previously depended on local governments.

Another innovation was the creation of a chapter dedicated to the environment, in addition to the expansion of quilombola rights and the requirement for the demarcation of indigenous lands.

Can the Constitution be changed?

To make it possible to update the text without requiring a rupture or the creation of a new Constitution, the text provided for the possibility of amendments, which gains even more relevance given its broad and detailed nature.

Despite this openness, which has already resulted in 131 approved amendments, there are protected aspects: the so-called immutable clauses. They prohibit changes that aim to end direct, secret, universal and periodic voting; the separation of Powers, individual rights and guarantees and the federative form of State.

“It is not a problem to adapt our Constitution to the problems and challenges that arise from time to time”, says Miguel Gualano de Godoy, professor at UFPR (Federal University of Paraná). “[Mas] dealing with issues that, if they were not addressed by the Constitution, would remain renegade, is an achievement.”

To change the Constitution, Congress must approve a PEC (proposed amendment to the Constitution). To pass, two rounds of voting are necessary in both the Chamber and the Senate, with three-fifths of the votes in each House.

What are the main challenges?

One of the Constitution’s main obstacles is its own effectiveness, especially in a country marked by social and economic inequality.

On the other hand, movements aimed at a coup, such as those that culminated in the coup attacks on January 8, are another aspect that challenges the democratic rule of law, established by the Constitution.