ORIGINAL ARTICLE
COSTA, Achylles De Brito [1], BRITO, Clara Kelliany Rodrigues De [2], CAMPINA, Ana [3]
COSTA, Achylles De Brito. BRITO, Clara Kelliany Rodrigues De. CAMPINA, Ana. The Brazilian influence in the new Latin American constitutionalism. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 12, Vol. 02, pp. 72-87. December 2020. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/brazilian-influence, DOI: 10.32749/nucleodoconhecimento.com.br/law/brazilian-influence
SUMMARY
The work on screen aims to demonstrate a new form of constitutionalist movement that has been gaining new contours in Latin America, called by the doctrine of new Latin American constitutionalism. This movement gained its heart due to the political-legal process that occurred in recent decades, aiming at guaranteeing the rights of minorities, whose theoretical framework also comes from the Brazilian Constitution of 1988 and its neo-constitutionalist bias, much criticized, at the time of its promulgation, for being too detailed or “garantista” too. But now, through its positivism certifying fundamental rights and guarantees influences the new constitutional movement, with even deeper changes and guarantees in the constitutions of Latin countries that seek to positive in their affirmative, inclusive and guarantor political constitutions, as well as constitutional and normative evolution based on certain criteria, values, interests and own objectives.
Keywords: Constitutionalist, Latin American, affirmative policies.
1. INTRODUCTION
In times after the striker movements that took place between the late 1970s and the late 1990s, in which social networks allowed the most varied political thoughts to emerge from the most varied groups that formed society, social mobilizations increasingly move away from labor claims, claiming affirmative policies for the various “cultural nations” that make up the Latin American population , resulting in a new constitutionalism movement, which privileges and prestigious exactly this voice of the streets, of ethnic and social groups that previously did not have so much conviction of its strength, especially in neighboring countries of South and Central America, a movement that had a strong influence of the Federal Constitution of 1988.
The purpose of this article is to demonstrate that the new American constitutionalism, although it may seem to be somewhat silent and indifferent to Brazilians, is a movement that is on the agenda of the political moment of our continent, influenced by the taxing and guarantor enumerations of Brazilian neoconstitutionalism, allied to the long marches held in large Latin cities (MERKLEN, 2002), such as those of Mexico City in 2001; Quito in 2002; or, more recently, social rights movements seeking a new legal order in Chile; or, also, the “cliques” that occurred in Argentina, from 2003 and the indigenistic movements in Bolivia that culminated in the election of President Evo Morales in 2006.
In addition, it is worth mentioning the anthological “Que se vayan todos!“, said in the Argent[4]ine, Ecuadorian and Peruvian movements of this decade (from 2000 to 2010), culminating in a series of changes in latin american social movements, which, at this point, sought not only rights, but also social inclusion and affirmation of colonized peoples, with greater political participation of them (GROS, 2001). That is, the 2000s was marked by the expansion of these mobilizations referred to as indigenists and quilombolas, continuing what will certainly become known as “awakening of minorities”, with debates and demands for bilingual binational education, for cultural and religious recognition of the different nations that form these peoples.
Attention should also be drawn to democratic access to natural resources and land ownership, with the affirmation of “Indianity” and “blackness” in the most diverse mobilizations that occurred in various parts of the continent from the celebrations of the “Other Five Hundred Years” in 1992[5]. This transformative and spring-based spirit resulted, for example, in the recognition of the “multicultural and multiethnic” character of the Ecuadorian nation by the 1998 Constitution (VAN COTT, 2005). This is what has been called the “New Latin American Constitutionalism”, whose theoretical framework also is part of our 1988 Constitution and its neo-constitutionalist bias, much criticized at the time of its promulgation, for being too detailed or “garantista”, but that now its positivism certifying fundamental rights and guarantees influences a new constitutional movement, with even deeper changes and guarantees.
As a general rule, without proper legal and diplomatic analysis, such innovations made by this “new policy” are full of social and progressive ideological marks, rejecting denialism and social exclusion, recounting affirmative, inclusive and guarantor policies, as well as the constitutional and normative evolution of these countries based on certain criteria, values, interests and own objectives that sought to intervene in the decision-making process of each country in their respective peoples , among colonizers, settlers, colonized and enslaved, invoking and placing this pluralism of origin of each people as a priority of social recognition.
For this essay, a bibliographic review and documentary analysis were made from several books, consulting the material available in Argentine, Colombian and Brazilian virtual libraries, as well as government websites from countries that are directly involved in this movement called The New Latin American Constitutionalism.
2. THE DEMOCRATIC PROCESS, THE FORCE OF THE MOMENT AND ITS REFLECTIONS BEFORE INTERNATIONAL RELATIONS
The economic reality and the political moment of each people, as well as the international conjuncture, form what the media calls “agenda-setting” or “force of the moment” – a theory formulated by Maxwell McCombs and Donald Shaw in the 1970s – a social phenomenon that proposes the idea that issues that are most important to be considered in the media and not of varied and independent movements are considered more important. , or even singular (CASTRO, 2014). Thus, to make and influence international politics, it is necessary to visualize, accurately, the direction to which “the winds of politics blow”, allowing a more precise identification of the decision-making lines of foreign policy, especially with the agenda-setting decisively interfering in the international action of states, whether in the executive, legislative, judiciary or other interest groups of a given country.
This redefinition of the value searches of contemporary societies opposes materialism to post-materialism – a sociopolitical movement that gained strength from the 1960s with the entry of this political agenda of partisan realignments – with its discourses built around the demands of dignity, respect, social inclusion and the refusal of discrimination and the deepening of popular “participation”, culminating in Latin America , in the emergence of new social democratic parties in the 1980s and in their consolidation of progressive profile in the 1990s (GOHN, 1997). With the electoral victories of the 2000s, the vast majority of these more progressive leaders reaffirmed their commitment to the values that had founded their mobilizations of previous decades, such as the creation of institutions that foster and guarantee a “participatory” democracy (GOHN, 1997).
On the other hand, even with all the principles of international relations and affirmation of maximum respect for the sovereignty of peoples, established by Art. 4th of our Magna Carta, and also with all the fundamental Rights and Guarantees of Art. 5th and the Social Rights of Art. 7th, if we make a minimal effort to review the most recent news about what has been Brazilian international politics of yore and compare it with those of now, it is easy to see that we are caught up with a paradox of political and social backsliding in relation to our Hispanic neighbors, since our governmental agenda is opposed to the consolidation of the social and progressive movements of this new Latin American constitutionalism.
Who demonstrates this condition of countergamousness or paradoxical antagonism is the very scenario of political succession that we see in South America, such as the defeat of Mauricio Macri by moderate Peronist Alberto Hernandez in 2019[6] in Argentina; or with the already probable victory of Luís Arce[7], candidate of former indigenista President Evo Morales for the presidency of Bolivia in this coming month’s october elections; or, with a series of Chilean popular movements initiated in 2019 and which have already been a victory to hold a plebiscite that, very soon, even in October of that year 2020[8], will probably result in the formation of a new Constituent Assembly in Chile.
Most likely, they will have a Charter inspired by the guarantor, inclusive and affirmative model already existing in Ecuador, Bolivia, Peru, Colombia and Venezuela, which will certainly mean a major defeat of the “exemplary” neoliberal project that has prevailed in the Andean country since the Pinochet dictatorship, especially now, in which it demonstrates that we will have a defe[9]at of Donald Trump in the U.S. presidential elections of November 2020 , a fact that will be the final collapse of a rapid but ill-fated trend of retrograde and anti-progressive policies, not only in South America, but throughout the Western world, including Europe.
And it is on this threshold of an even more direct and guarantor democracy that the relations and influences of Brazilian Constitutional Law may well be seen as positivist vanguards for the Andean neighbors in their “spring of the peoples” or “indigenistic awakening” with the addition of concrete affirmative and inclusive policies, which has entailed a true Latin American Constitutionalist Revolution of the various nations that form them.
3. THE NEOCONSTITUTIONALISM OF THE 1988 CHARTER AND INTERNATIONAL RELATIONS
It is obvious that each legal system brings with it the guiding principles of the actions of a State, that is, those fundamental principles of a strictly constitutional nature that regulate the procedures and institutional competences of the different public agents, bodies and powers involved in the issue and that guide the norms aimed at guiding the proposals that have the capacity to promote the normative revolution of each country. Analyzing these guiding constitutional principles is that we perceive the parameters of international relations that a country proposes to establish.
Constitutionally guiding political principles are those that make clear the fundamental political values of the constituent legislators and add to them, in a constitutional text, the fundamental legal principles, in addition to the new constitutional principles imposed and the guarantee principles (BARROSO, 2008). Thus, constitutional political principles are manifested as fundamental constitutional principles, positive in a normative type characteristic of this New Constitutionalism, the “norms-principle” and are distinguished well from the constitutional legal principles informing the national legal order and, often, constitute developments or principles derived from the fundamentals (CUNHA, 2006).
Moreover, we see the explicitness of the principle of cooperation between peoples for the progress of humanity to ally with the formation of a Latin American community of nations, forming a similar constitutional basis among the countries of this community to better serve in the process of institutionalization of Mercosul, or even of UNASUL – of which, packed by a foreign policy, in our view , mistakenly, Brazil withdrew[10] – cited by several other Latin American countries that mention this in their constitutions, such as the neoconstitutionalists Argentina, Uruguay and Paraguay, and now also with the Andean countries in this new Latin American constitutionalism.
Therefore, since the neoconstitutionalism of the Southern Cone has influenced this recent constitutionalism, with ideas of national independence, of non-intervention, of equality between states, on the other hand, there is a more progressive internationalist orientation, which translates into the idea that the international relations of some countries should be used by the prevalence of human rights, self-determination of peoples and the repudiation of terrorism and racism , as well as for the protection of human dignity and the development of that community of nations.
It is in this sense that Constitutionalism presents itself as a process of increasing evolution. But this is not a single rule, because this process does not take place at the same pace and in the same way in developing countries, such as, for example, this new constitutionalism that arises in Latin America brings the concept of consensual and non-hegemonic democracy[11]. This “consensual democracy” has or is not reflected in the external relations of these countries, which promoted or are promoting changes in their constitutional provisions, such as the adoption of instruments derived from direct and participatory democracy, enabling the people’s willto change the political and legal structures of the State in their favor to assume the role of protagonist in the history of their respective countries (TAVARES; FREITAS, 2013).
In this sense, the redemocratization of Latin American countries has had an important impact on the foreign policy of some of these countries, increasingly bringing social policies closer to the international cooperation agenda, in which various themes related to the promotion of human dignity, such as food security and public health, have been strongly attacked. And precisely because some obstacles persist with respect to citizen participation in diplomacy, such as the movements that occurred in Bolivia, which culminated in the resignation of Evo Morales in, 2019, or as in those that have occurred in Chile[12], can result in a new legal order, through a new Constitution.
The consequences of this new policy have been contradictory and untitable, but always with the increasing presence of social movements in transnational networks throughout Latin America, determining changes in the political debate in areas such as the environment, security, social inclusion and human rights, with internal political factions seeking allies abroad to compensate for their domestic fragility, increasing pressure on governments to formulate the diplomatic agenda.
4. WHAT IS THIS NEW LATIN AMERICAN CONSTITUTIONALISM?
After a brief study of these new Latin American Constitutions, as well as on the impact they have on the foreign policy actions of these countries, it is necessary to highlight that we live in an important period in defense of democratic guarantees and freedoms. And this is what we call a new constitutionalism, with its great political-constitutional advances and profound social changes, as well as the increase in the political participation of its citizens, and also with the consolidation of rights previously only idealized and claimed, but now inserted in its legal system, arising with the intention of legitimizing and expanding democracy within all developing countries , throughout the American continent.
Thus, the rights established in its constitutional texts, as in our Constitution of 1988, the Constitution of Colombia of 1991, and, later, in the Venezuelan Constitution of 1999, ended up being effective, having its culmination in the constitutions of Ecuador (2008), Bolivia (2009) and, certainly, the coming Chilean constitution, too. Moreover, this New Constitutionalism is very easy to verify, because it is enough to have in hand the most recent Constitutions of these countries, analyzing that their rationale has its extralegal legitimacy and the effectiveness provided for in the direct Constituent Power itself. This is a theory of constitutional democratic advancement, by which the content must express the sovereign will of its people, its identity, its cultural awareness, religious freedom and the values they aim to preserve, in addition to the best form of social and political organization.
This should be achieved through mechanisms of direct popular participation, such as the guarantee of fundamental rights, constitutionality control procedures and the creation of rules that balance political, economic, social and cultural powers. We can also say that it is a new legal framework of constitutionalism, which comes to satisfy popular struggles and demands for a new model of organization of the State and Law, so that, in addition to recognizing, legitimizing and expanding the list of fundamental rights, can also effect them in the concrete case. And it is from this model that a government is required in which its constitution is legitimized in the ideal of democracy and in the identity of the people and not necessarily in western external standards that do not correspond with the various genuinely Latin American cultures.
And finally, this new constitutionalist wave also has as its core to further promote direct popular participation in the legislative process, as well as in the control of state powers and in government and political decisions, evidencing that this movement of innovative democratic paradigms was also inspired by our Magna Carta and expanded such powers and possibilities, especially with regard to their analytical character , detailed and simplified treatment of the most complex norms through a more popular language, highlighting a fundamental need of the legislative system practiced in South America: the rights (especially those of a social nature) in these countries, to be fulfilled or required, must always be very clearly written.
Thus, in addition to not running the risk of being forgotten, they also prevent them from being “misunderstood” interpreted, which would have, in both cases, their consequent non-application. But we must look at an intriguing issue arising from this popular accessibility, because one of the most striking differences that these new Letters would have from our Constitution of 1988 would be the possibility of constitutional change from the activation of a popular constituent power, something simpler and much more practical than our original constituent power, which requires the convening of a National Constituent Assembly. As an example of this, we have a certain fragility of the Colombian Constitution, in the context of constitutional reforms, when it is allowed to be reformed even by popular suffrage itself (WOLKMER, 2008), by referendum.
There are also the means already known by our Constitutional Law, whether the constituent powers originate dweller and derived, although it has inserted important achievements for Constitutionalism in Latin America, notheisedly in the field in participatory democracy and legal pluralism (WOLKMER, 2008). But here, it is necessary that the political analyst is aware that there is a significant risk, since this “appeal to the people”, the theoretical basis justifying this neoconstitutionalism, can be very problematic, especially when we consider that there will always be the risk that, by the adoption of this mechanism, the result is the annihilation of democracy, especially at times like this that we live now , in which this “inclination” is observed in some more authoritarian and inconsequential discourses of certain more recent leaders of the continent, especially the most populist ones (GARGARELLA, 2011).
It is in this same sense that the combination of “hyperpresidentialism” with mechanisms of broad participatory democracy can generate a kind of “democratic caesarism” that effectively inhibits the development of a real participatory democracy project (UPRIMNY, 2011). And, also, preaching a democracy of content, based on fundamental rights and with strong control of power, it is necessary to highlight the risk of entrusting these powers to messianic and charismatic leaders, given the recent authoritarian history of Latin America. It is at this point that Argentine professor Miguel Carbonell states that every authoritarian form of power breaks with the “marrow” of Constitutionalism (CARBONELL, 2010).
However, if popular sovereignty is granted the possibility of changing the Constitution without limits – since they do not adopt the regime of perseous clauses – one can end up repeating some European Nazifascist experiences, with the formally democratic (and majority) surrender of power to those who only want to annihilate democracy, as this reverberates in an intensification of presidential powers that disregards political-legal pluralism and popular participation. On the other hand, already with regard to guarantees, as well as in our Magna Carta of 1988, one of the main points of innovation that appears in the Letters of this New Constitutionalism is the list of protection of diffuse and collective rights in provisions that pay attention to the care and specificities that must be had with the most varied social groups (women children, old people, etc.) and their differentiated needs.
In fact, they are a series of rights and guarantees in profusion, addressed to these groups, constituting “laws of the weakest”, or even “laws of protection of minorities”, or, simply as we call in our Federal Constitution, diffuse and collective, which mark and signal the reception of international human rights agreements by these Letters, such as the Constitution of Ecuador or Venezuela , in which it is expected that, when there is conflict between human rights treaties in confrontation with the constitutional norm, the most beneficial rule will prevail.
5. FINAL CONSIDERATIONS
The new movements of “constitutionalism”, whether the neoconstitutionalism of our 1988 charter or the New Latin American Constitutionalism of the Constitutions of Bolivia, Colombia, Venezuela, Peru, Ecuador and, most likely, Chile, always bring the insertion of a democratic perspective that allows a very positive popular participation, but without leaving out the equal and the unequal, although, in our view, they should do so with a certain caution , especially as to give the people unrestricted power of constitutional change, to the point that he himself ends the democratic process through populist movements “fantasized” of popular people who flirt with authoritarian temptation.
While neoconstitutionalism is born as a legal-political movement aimed at defining and consolidating concepts and norms, in the exercise of constituent power, dealing with legitimacy, popular participation and the very concept of State, the New Latin American Constitutionalism is, until now, the most faithful expression of recognition of the plurinationalism of states, which absorbs ethnic, social and legal plurality, respecting and ensuring the rights of all , based on inclusive and affirmative policies, with the recognition, by this new South American legal system, of existing rights, but previously ignored or denied to a large part of the population, building states that recognize the peculiarity of each people and their pluralism, because they are all former miscegenated colonies proclaiming a new political independence and the creation of a participatory and effectively democratic State.
The guarantees desired by the constitutional charters become effective, not, however, signifying a break with neoconstitutionalism, but an improvement, with great social and participatory advances. Thus, our observation is that, even with some formal flaws in the constituent process – and that they can, yes, threaten democratic legitimacy, when power is in populist and malicious hands with respect to the solidity of democratic institutions – such fragility does not seem to be sufficient for this, simply analyzing the Brazilian constitutional process, which, in 1988, inaugurated the third phase of constitutionalism , consolidating rights, when he left them positively written so that they could be effectively fulfilled.
Thus, the application of fundamental policies and guarantees have become a reality and, with this, creating conditions for the new Latin American constitutions to promote the recognition of the plurinational populations that make up the peoples of these countries, and that, effectively, all can be treated as equal before the law, as well as the unequal as unequal, seeking to recognize, respect and correct the harmful effects of this inequality , finally, now recognized by the Greater Law of each country.
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APPENDIX – FOOTNOTE REFERENCES
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[1] Graduated in Law from the Federal University of Maranhão (2004), being a specialist in Municipal Law from ESAPI/FAETE (2010) and PhD student in Public Law from UNLZ – Universidad Nacional Lomas de Zamora, Argentina. Master’s degree in Law: Legal-Political Sciences from the University of Portucalense Infante D. Henrique (UPT) – Center for Constitutional Studies and Public Management – CECGP.
[2] Master’s degree in Law: Legal-Political Sciences from the University of Portucalense Infante D. Henrique (UPT) – Center for Constitutional Studies and Public Management – CECGP; Specialist in Public Law with Higher Teaching degree at UNISEB University Center (Union of Higher Courses SEB LTDA); Specialist in Labor Law and Process from Anhanguera University-UNIDERP; Specialist in Business Law at Anhanguera University-UNIDERP; Graduated in Law from the Faculty of Maranhão.
[3] Guidance counselor. Doctorate in Pasado and Gift of Human Rights. Master’s degree in History Contemporánea. Specialization in Teacher Professionalization: Economics / Accounting. Graduation in Sciences Politics y de la Administración. Graduation in Political Science – Esp International Relations.
Submitted: November, 2020.
Approved: December, 2020.
