In October our constitution completed 25 yeras, so this post is a tribute to our greater laws, all citizens should recognize its importance, and its democratic values. This post is a summary of three articles. The first with the title of, " The role of the constitution and the law in a free society." Published at http://www.ourcivilisation.com. The second with the title in the link and published at http://fgvnoticias.fgv.br/en/news/fgv-discusses-digital-democracy-and-25-years-constitution-conference-rio.The third with the title of,"The role of the constitutional court in democratic society." Published at http://www.juridicainternational.eu/index/2007/vol-xiii/the-role-of-the-constitutional-court-in-democratic.
James Madison, the most influential of the draftsmen of the American Constitution, identified the main problem confronting the draftsmen of a constitution thus: The great difficulty lies in this, you must first enable the government to control the governed, and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions. The role of a constitution is to provide scope for a good government, while at the same time placing limitations on the powers of the governors. The doctrine of the separation of powers, involving a system of checks and balances, is basic to liberal constitutionalism. This system begins with the separation through a constitution of judicial, executive and legislative powers. However, it goes much further. It operates also within each branch of the state, in the division of powers between state and federal governments and others institutions and individuals in the community. The system of checks and balances also operates outside the constitution and the law. Democracy, the electoral system, free expression and criticism, the investigative media and the existence of countless strong and not so strong independent institution cumulatively operates as a system of checks and balances on those exercising private and public power. Justice is based on the rights and duties of the individual. The concept of Justice is the emphasis on procedure. The possibility of achieving equality, democracy, justice, the public good through legislative and prescriptive action. An emphasis on procedure is one of the foundations of the rule of law. Procedures limit power by providing for consultation among interested parties.
In October, the federal constitution, also known as "Citizen Constitution" completed 25 years. Since then, Brazil has already witnessed the impeachment of a president and parliamentaries and experienced the mobilization power of social networks. The FGV Law School and the Institute Palavra Aberta will hold the conference, "25 years of the Brazilian constitution: freedom of expression and digital democracy." The FGV law school professor Pablo Cerdeira explain that the changes generated by digital means have already been discussed in the academic world for some time, but now they are taking concrete forms. He said, "the demonstrations that have been happening since June in Brazil are living proof that the organization and social relationship models are really affected by new technologies." The professor also emphasizes that the society`s new forms of organization offered by new technologies also encourage emergence of new ways of State control.
The constitutional court is central but not the only instrument of democracy and constitutionalism. Therefore, the role of the constitutional court should be viewed in a wider perspective embracing the general issues of democracy, constitution and constitutionalism. There is reason to believe that, relying on earlier experience of statehood and having lived according to constitution and practising democracy. We have passed the beginner course in constitutional democracy. Ralf Dahrendorf (1929-2009) was a German-British sociologist and political scientist. He was director of the London School of Economics. Also member of the European Commission for Research and Education. He wrote that constitutional democracy is built in three stages: 1- The establisment of a constitution laying down the basic values of statehood, fundamental rights, the main paradigms of the rule of law, independent administration of justice and separation of powers. 2- The creation of a market economy with the development of a certain social protection network. 3- Establishment of civil society, the building of substantial source of power outside the state. This is a network of autonomous institutions and organisations and that a state or party authority can not eliminate. Constitutions are drafted at and after times of upheaval. They usually bear the stamp of past fears. They are generally created on the basis of recent bad experiences and in order to avoid recurrence of that experience. We all know the simple definition of democracy as the power of the majority. However, it would be a great mistake to see things in so simplified manner. Mistake majority for democracy and it is only a question of time and circumstances before one sees the evolution of authoritarianism. Reducing democracy to merely the power of the majority is Jacobinism, which as we know was abandoned a long way back in history. Power can be limited only by another power that is at least equal to the first. It took ocidental culture hundreds of years and much suffering to understand that the best guarantee of balance and stable development is division of power and mutual control under a law approved by the nation, a constitution. A true and functioning constitutional democracy is based first of all on thinking, values, practice, faith and experience. It is perhaps appropiate to cite the oppinion of a famous American judge, "I often wonder whether we do not rest our hopes too much on constitution. These are false hopes, believe me, liberty lies in the hearts of men and women.," We can agree with this generalisation if we know that law can still be helpful in restoring one`s liberty and independence, as our experience has shown. To keep society together and coherent, to make it follow common and stable rules, or, put other way, to keep them tied to the mast, as it were a 'reader of the holy word' is needed. The mission of the court is to consolidate democracy, to keep it together. As constitution have been created throughout history as a result of upheaval and shocks. They have been set up for putting down totalitarianism and for upholding democracy as values that could often to be grossly violated. The violations have often been committed by or with the help of power itself. Constitutional jurisdiction was thus created with the aim of ensuring democratic stability and of avoiding the erosion and suppression of democratic values via sheer stupidity or scheming or the application of Jacobinic methods. It should not be concluded from this discussion that a constitution and court are needed only by those in power in order to settle matters of their mutual relations and activities. This is certainly one of their functions, but constitutional law is esentially the law of everyone, the law of the nation for keeping power and the society within an agreed framework. This is how constitutional law acts, unless it is illusionary, or if it is a real and effective law that anyone can use and rely on.
