30th Anniversary of the Brazilian Constitution

            On 5th of October, our constitution completed five years. So this post is a tribute to this very important document.  In the election this year, all candidates reinforced the importance for the respect to the constitution, but this respect must go beyond the discourse. The constitutional text is very fair, but now it is necessary to take practical and legal action to this fairness reach the victims of violations. This post is a summary of three articles. The first was published at  http://www2.stf.jus.br/portalStfInternacional/cms/verConteudo.phpsigla=portalStfDestaque_en_us&i. The second was published at  http://www.brazilgovnews.gov.br/presidency/speechs/2018/10/address-by-the-president-of-the-republic-michel-temer-during-a-solemn-session-in-honour-of-the-30th-anniversary-of-the-1988-constitution-followed-by-the-launch-of-a-seal-and-stamp-alluding-to-the-da. The third was published in October of 2018 at https://www.academia.edu/37570531/Between_Past_and_Future_The_30_Years_of_the_Brazilian_Constitution

             The Justices of the Federal Supreme Court (STF) will meet at 2:00P.M. this Thursday (04/10) in a solemn session to commemorate the 30 years of the Federal Constitution of 1988. The solemnity celebrates the "Citizen Constitution", whose promulgation marked the consolidation of democracy in Brazil and whose content sought to prioritize the individual and collective rights of the citizen. As a result of the solemn session there are no trials to be heard on Thursday. Among the guests for the solemnity are the President Michel Temer, retired STF judges, other instances of the judiciary, the Attorney General of the Republic, Raquel Dodge, governors, deputies, senators, constituent parliamentarians and members of the Public Defender's Office.

               When The Federal Supreme Court convenes to pay tribute to the 1988 constitution, this has a lot of meaning. Unlike, perhaps, if the executive only, or the legislature only, paid this tribute, because the frame of reference, of support, of endorsement that the Supreme Court gives to the constitution of 1988 is very important at this moment, especially in this troubled moment. For us, from the legal area, the state is only born at the moment of the birth of the federal constitution. As a practising lawyer, eminent Chief justice, I had the pleasure of being the author of Article 133, which establishes that the lawyer is indispensable to the provision of justice. I always say very often that it's very important to preserve the constitution. Moreover, as they said, there is no way out of the constitution. The Supreme Court is the guardian of the constitution, the legislative produces the law, but if there is a controversy, who ultimately says is the Supreme Court. But I think the Supreme Court has an even greater mission, becuase the to the constitution to have full applicability, that is to say, all rules were affective and therefore not only by constitutionally control by legal action. Minister Marco Aurélio pointed out, "the rights listed do not prevent others from being evoked that arise from the constitutional text". It also says that international treaties referring to human rights, connected to individual rights, approved by the same criterion of constitutional amendments, are incorporated into the constitutional text.

              Constitutions exist in time. Not only in the linear count of the days, months and years in which they seek to provide a legal regulation to the society. Constitutions are made of memories, traumas, projections and expectations. Constitutional documents deal with past experiences and fears that address the future. Although bound to the present time, they are marked by these temporal inflections. In less than two centuries, Brazil produced seven constitutions. A significant finding in Brazilian constitutional history is the relationship between political change and the elaboration of a constitution. The 1988 constitution completes 30 years at a true crossroad between past, present and future. The main issue related to the pre-1988 period involves the legacy of the military regime. The constitution affirms that in the dictatorial period "acts of exception" were committed, that is, it makes clear that the basic elements of the rule of law were not respected. It prevents the opening of criminal cases to assert the responsibilities of agents of the dictatorship who committed serious violations of jus cogens of international human rights law. This immobility led to two Brazilian convictions in the Inter-American Court of Human Rights: in the cases of the Araguaia guerrilla group and the murder of journalist Vladimir Herzog. The consideration of the trajectory of the thirty years of the Brazilian constitution of 1988 invites us to ponder the present challenges in its apllication. Such challenges are not alien to contemporary constitutional democracies, but require, for their understanding a careful look at the complexity of applying the constitution to social relations. In this way, social guarantees progressively acquired by the historical trajectory of this community can be perceived as patrimony of a present generation and a legavy to the future ones. What about the future? This prospective dimension can only be presented in the form of an inquiry, of a concern about the persistence or not of the democratic principles that inspired the drafting of the Charter of 1988. The current and more important challenge in maintaining the opening of the senses of the Brazilian constitution for the future is to be attentive to the possibility of using the constitution against itself. Only one question is certain: as long as there is a constitutional text, there will be a public space, arguments and weapons for resistance, for the dissemination of emancipatory solutions and for the affirmation of the precepts that motivated the Brazilian re-democratization: freedom and equality.