THE BRAZILIAN CHARTER OF FUNDAMENTAL
RIGHTS: A BRIEF INTRODUCTION.
Working paper written for the II Courting Justice IBSA Conference, Delhi,
April 28-29, 2008
Sponsored by Ford Foundation
Oscar Vilhena Vieira
Fundação Getúlio Vargas
Escola de Direito – São Paulo
Conectas Direitos Humanos
SUR – Human Rights Univeristy Network
Introduction 1. Transition to democracy, and the Constitutional
Assembly. 2. The Reactive Constitution. 3. Fundamental Principles
of the Constitution. 4. The Brazilian Charter of Fundamental
Rights. 5. General Regime of Fundamental Rights.
Introduction
This paper has a very modesty propose. It aims to offer to foreign readers a brief
introduction to the Brazilian Charter of Fundamental Rights. The paper is divided in
five sections. The first one describes the context in which the 1988 Constitution
was produced; the second section depicts the result of the constitutional assembly
as a reactive constitutions against a immediate past of authoritarian rule and a long
history of inequality and search for development; a third section brings attention to
the fundamental principles that organizes the Brazilian polity, in which fundamental
rights are immersed; the fourth section analyses the content of the Brazilian
Charter of Rights; and finally, the fifth section provides some information regarding
the regime of rights adopted by the 1988 Constitution.
1.
Transition to democracy and the Constitutional Assembly
After a slow and gradual process of transition to democracy, the Brazilian society
adopted a new constitution in October of 1988. This lengthy process called
“abertura” (opening) imposed by the military regime, began with the adoption of an
amnesty law, in 1977, which benefited both sides of the political spectrum, allowing
the return of left wing dissidents to Brazil, and leaving impugned those involved in
human rights violations . The regime also restructured the party system, liberalizing
the creation of new political parties and reestablishing the parties that were
abolished by the military coup in 1964. This distension of the political system
caused the fragmentation of opposition parties (Skidmore, 1988: 447-433). In this
new environment, civil society organizations became more vocal and critical of the
military regime. The Brazilian Bar Association (OAB), under the presidency of
Raymundo Faoro, and organizations like Justice and Peace Commissions, in São
Paulo and Recife, under the leadership of cardinals Paulo Evaristo Arns and Elder
Câmara, were determined to denounce human rights violations and to pressure for
democratization and a new constitution. During 1983 and 1984 a significant
alliance between opposition parties and major social forces mobilized the whole
country to reestablish the right to vote for the presidency, in a free and direct
election called “diretas já”. Congress, however, failed to approve the necessary
amendment to the 1969 Constitution. This failure resulted in a compromise
between the moderate sectors of the military regime and part of the opposition
parties that permitted the election of Tancredo Neves and José Sarney, as
President and Vice-President, by an Electoral College, forged during the military
regime.
The enormous social energy frustrated during this process was finally released
during the constituent process, called by Congress, in 1985 (by Amendment 25 to
the 1969 Constitution). The Constitutional Assembly was elected in 1986 and
started to work in January 1987. In fact, it was a congressional Constitutional
Assembly. A first draft produced by a “commission of notables,” presided over by
Afonso Arinos de Mello Franco, a liberal politician, was abandoned by the
Assembly, which decided to start from point zero. Representatives of thirteen
political parties, in a very-fragmented environment, made up the Assembly. The
majority of the politicians that had been united in opposing the military regime had,
however, distinct perspectives of how a new constitutional order should be
organized. The participation of social movements, civil society organizations, and
interest groups, was massive. More than twenty thousand people circulated
through the Assembly every day, in a process that is considered the most
democratic moment of Brazilian political life (Coelho, 1988: 43; Whitaker et al,
1989).
2.
The Reactive Constitution
The result was a constitution that reacted against the immediate experience of
arbitrary rule and a long history of social injustice and inequality. Different from the
constitutions forged after the fall of the Berlin Wall, in Eastern Europe, or even the
post-apartheid Constitution of South Africa, the Brazilian Constitutional Assembly
was insular to major international influences. Perhaps the only foreign model taken
into account in a more systematic way during the Constitutional Assembly was the
socially oriented Portuguese Constitution of 1976. The result was a document that
kept our traditional political model: a presidential system within a federalist state.
The constitution adopted, however, a clear aspirational drive aimed at coordinating
social and economic change. In this sense it attributed to the state a key role in
promoting social welfare and economic development. The economic chapter of the
Constitution, however, was almost completely reformed in the nineties to adapt to
the neo-liberal wave.
The text of the 1988 Constitution is extremely ambitious, regulating in detail most
aspects of the Brazilian state, economic and social spheres. The original document
counts with 250 articles in its main part, and 94 articles as transitory disposition.
Many constitutional articles, however, have dozens of clauses, as Article 5,
composed of 78 clauses, regulating civil rights.
The 1988 Constitution is organized into eight parts (titles), respectively arranged
with regard to: fundamental principles; fundamental rights and guarantees; the
organization of the State; the organization of the powers; the defense of the State
and of the democratic institutions; taxation and budget; the economic and financial
order; and the social order.
3. Fundamental Principles of the Constitution
In the first title of the 1988 Constitution it is established that Brazil is a Federative
Republic, constituted as a democratic rule of law. Among the fundamental
principles of the Republic are citizenship, human dignity, and political pluralism.
Demonstrating from the beginning its aspirational nature and social drive, the
Constitution lays out, as the main objectives to be pursued by the Brazilian state,
the following: the construction of a free, just, and solidary society; national
development; the eradication of poverty and substandard living conditions and the
reduction of social and regional inequality; and the promotion of the public welfare,
free from discrimination, arising from race, sex, color, age, and any other clivage.
Finally, it establishes a group of principles that should govern the conduct of the
Brazilian State in the international arena, among which it should be highlighted: the
prevalence of human rights; self-determination of all people; defense of the peace;
and repudiation of terrorism and racism.
If in the past there was some strong disagreement over the juridical nature of these
principles on the part of Brazilian constitutional doctrine, today there is a
substantial consensus between jurists and the courts themselves that all these
principles have binding force, and that they must be imposed in all spheres of the
Brazilian State.
Regarding the political configuration of the Brazilian State, the 1988 Constitution
kept federal structure, which is comprised of twenty-seven member states and
more than five thousand municipalities. The presidential system, inaugurated by
the 1891 Constitution, was also preserved in 1988. The principle of separation of
powers (with an independent executive, legislative and judiciary) applies both to
the national and member-states spheres. Municipalities count only with executive
and legislative branches. The democratic principle governs elections far all
legislative and executive posts. The nomination of members of the judiciary is
carried out, in general, by means of public civil service entrance exams. Only the
members of the superior courts, on the federal level, are chosen by a process,
which involves nomination by the President of the Republic and ratification by the
Federal Senate.
Perhaps the major peculiarity of the Brazilian system of separation of powers, in
relation to other countries, is the status and attributions conferred to the Attorney
Generals office, organized both at the national and member-states level. According
to Article 127 of the Constitution, the Attorney Generals office is responsible for
defending the legal order, the democratic regime and the inalienable social and
individual interests. In this sense it does not act only in criminal prosecution, as in
many other countries, but exerts a representative role for the public interest. Given
its administrative and financial autonomy, and the guarantees of independence
insured to its members, mimicking the prerogatives of the judiciary, the Attorney
Generals office emerges as a quasi fourth power in the Brazilian political system.
4. The Brazilian Charter of Fundamental Rights
Reversing the traditional order of the Brazilian constitutions that, since the Empire
(1824), placed the charter of rights in the final part of the text, the 1988 Constitution
brought the charter of rights to the beginning of the text, thus symbolizing that
these rights should be understood as presupposed in the exercise of power. The
title of rights and fundamental guarantees is divided into twelve articles. The first of
these, Article 5, is currently composed of seventy to eighty clauses (normative
statements), Article 6th to article 11th address social rights, which are taken up at
length in the constitution, from article 193 to article 215, when it is addressed in
detail the rights to health, social security, social welfare, education, culture, etc.
Articles 12 and 13 refer to nationality. Articles 14 to 17 address political rights and
the rights of the political parties. Article 170 deals with economic rights, and article
150 establishes taxpayers’ rights.
In the following sections a brief description of the rights expressed by the
Constitution will be made.
4.1. Civil Rights
The fifth article of the Constitution basically recognizes all civil rights established by
the international legal order. It recognizes the rights of equality and nondiscrimination; it guarantees the freedom of conscience, expression (excluding
censorship), belief, demonstration, work and association; it guarantees intimacy
and the secrecy of correspondence; it insures the right to material and non-material
property, provided its social functions are observed, and guarantees the right of
inheritance; it establishes, as well, a long list of rights related to due process,
beginning by the principle of legality; it insures the right to access the judiciary in
the case of violation of or threat to a right; it guarantees free judicial assistance
provided by the state; it ensures the right to substantial legal defense, to due
process (sensu strictu), to reasonable duration of the legal process, presumption of
innocence, and prohibits evidence obtained through illicit means; it prohibits,
finally, torture, the death penalty and other punishments of a cruel nature.
Article 5 additionally establishes diverse remedies, or constitutional actions,
concerned with the protection of fundamental rights, which are: habeas corpus;
habeas data, to guarantee access to information about oneself; the “mandado de
segurança”, to protect all other rights not secured by habeas corpus or habeas
data; and the “mandado de inunção”, which is intended to ensure the efficacy of
fundamental rights against legislative omission, which impedes the immediate
application of rights.
4.2. Social Rights
The Brazilian Constitution defines, in its sixth article, social rights as the right to
education, health, work, habitation, leisure, safety, social security, social welfare,
and protection for motherhood and childhood. These rights, however, are divided
into two large blocks. The first of them, regulated from the 7th to the 11th article of
the Constitution, refers only to the area of work relationships. They are rights of the
worker on an individual level, such as protection of employment, a work
environment free of discrimination, the minimum wage, a workday not greater than
eight hours, holidays, maternity and paternity leave, etc., and rights related to the
organization of the working class, such as freedom to form unions and the right to
strike. Workers’ rights are directly opposable to the employer and assured by the
labor courts .
Other social rights are found dispersed throughout the Constitution. They are
distributive rights, directly opposable to the State. The criterion for the distribution
of these distinct rights differs in each case. The right to health is recognized by
Article 196 of the Constitution, as an universal and egalitarian right. The right to
social security, protected by Article 201, in turn, has a contributive nature, which
depends on contributions made by the worker himself, the employer and
budgeting by the Union. The right to social welfare, shaped in Article 203, should
be assured in respect to the necessities of each individual, not dependent on prior
contribution. The right to basic education, established in Article 205, is an
obligation of the State and has a universal nature. The State should progressively
universalize secondary education and ensure, with regard to the capacity of each
individual, the access to university education. Also protected are the rights to
preschool education for children of up to five years of age, and the rights to
education of disable people, preferably in the regular school network.
To secure the efficacy of social rights, the 1988 Constitution established mandatory
budget allocation clauses. In the case of the right to education, Article 212 of the
Constitution stated that the Union would apply never less than eighteen, and the
States and Municipalities, never less than twenty-five percent of tax revenue on
education. In the case of the right to health, a formula linking social expenditures to
revenue was also created; in this case, however, the Constitution determines that a
complementary law should establish a percentage, for a period of five years. The
establishment of mandatory investments on social rights, for spheres of the
federation, had a strong impact on public spending in the social sector. It is
estimated that the 1988 Constitution imposed on the Brazilian State an increase of
more than 40% in social spending, when compared to the previous system. From
the decade of the eighties to the year 2000, social indicators demonstrate a rise in
life expectancy, from 62.5 years to 72.5 years; a reduction in the mortality rate from
69.1/thousand children, to 30.1/thousand children; as well as a reduction in the
illiteracy rate, from 31.9% to 16.7% of the total population.1
The rights to habitation and public safety, outside of statements at the end of the
sixth article of the Constitution, don’t receive a clear delimitation in the length of the
Vanessa Elias de Oliveira, Política Social no Brasil: da cidadania regulada à universalização regressiva –
assistência social, educação e saúde, in Introdução à Política Brasileira, Humberto Dantas e José Paulo
Martins Junior, orgs., São Paulo, Paulus, 2007, p. 224.
1
text. In the same way, outside of there being a chapter on agrarian reform, the
Constitution did not define a right to access to land, but only authorized the State to
carry out expropriation, of unproductive properties which did not fulfill their social
function (Art. 184), with the objective of promoting agrarian reform.
The Constitution also established a group of fundamental rights in the area of
culture, imposing on the State obligations to expand and democratize access to
cultural resource and cultural manifestations; a duty to protect popular, indigenous,
and afro-brazilians cultural manifestations; a duty to preserve ethnic and regional
diversity; responsibilities in the protection of historical and cultural heritage; and an
obligation to establish incentives for the production, promotion and diffusion of
culture (Art. 215 and 216).
In its environmental plan the Constitution ensured to everyone the “right to an
ecologically-balanced environment,” regarding it as a public asset of the people
and essential to a healthy quality of life, as something that must be preserved for
future generations. Through this intergenerational pact, the 1988 Constitution
imposes on the State and subsequent generations, a clear obligation to preserve
and restore the environment, the diversity and integrity of the inherited public
space of the country; to define and protect areas of preservation; to require a
previous environmental impact study in relation to activities that are potentially
harmful to the environment; to control the production, commercialization, and
employment of techniques that possess a risk to life, to quality of life, and to the
environment; to promote environmental education; and to protect flora and fauna.
4.3. Economic Rights
The 1988 Constitution, by means of Title VII, constructs the legal framework for the
Brazilian economic system. From a perspective of fundamental rights, the
Constitution ensures the right to property, conditioned by its social function. Thus
the power to use, enjoy, and have property at one’s disposal is conditioned by its
conciliation with other values that are also constitutionally-protected, such as the
environment, the rights of the consumer, free competition, the reduction of
inequality, labor rights, and favor of a dignified existence and social justice (Art.
170). In this sense the right to property and the free exercise of free economic
activity, ensured by Article 170 of the Constitution, fits into the context of a State
that receives constitutional power to regulate the economic activities, reprimanding
the abuse of economic power that gives rise to “the domination of the markets, the
elimination of competition and the arbitrary increase of profits” (Art. 170, Para. 4).
In the area of taxation, the Constitution establishes a series of taxpayer rights. Only
those taxes which have been previously authorized by the Constitution can be
instituted. Moreover, their collection and increase will always depend on law
enacted on a previous fiscal year. The Constitution also bans the creation of taxes
with a confiscatory nature. It is important to point out, however, that the
Constitution states that whenever possible taxes will have a “personal character
and will be graded according to the economic capacity of the taxpayer…” (Art. 145,
III, Para. 1). This provision is fundamental in understanding the mechanisms of
redistribution of wealth instituted by the Constitution, by means of social rights.
4.4. Political Rights
Citizenship rights are extended to all Brazilians, native or naturalized. There are,
however, some limitations for naturalized citizens, with respect to the posts they
can hold. The formal tool of participation is the universal vote, with equal value to
all. Citizens have rights to participate in the electoral process, as voters or
candidates. The illiterate are not allowed to run for office. The elections for the
legislature and the executive branch at municipal, state, and federal levels are
direct and carried out every four years. With the exception of senators that have a
mandate of eight years, all other elected posts have a mandate of four years.
There is also the possibility of citizens’ direct participation through plebiscites,
involving referendums and popular initiatives for the proposal of laws. These
instruments of direct democracy, however, depend on legislated authorization,
which has largely been restricting its use in the Brazilian political system.
Political rights cannot be suspended, except in cases of cancelation of
naturalization, by judicial decision; absolute civil incapacity; criminal condemnation
conferred through a final judicial decision; refusal to meet universally-imposed
public obligations or render a required service, as in the case of military service; or
in cases corruption.
There is freedom to create political parties, provided that they respect the
principles of national sovereignty, democracy, pluralism, and the fundamental
rights of human beings. The political parties must have a national character, and
are prevent from having a paramilitary nature or from receiving funds from foreign
entities or governments. Political parties are ensured autonomy in defining their
internal structures and access to resources of the public party fund, as well as free
access to radio and television, conforming to the guidelines of the law.
The 1988 Constitution established, through Articles 118 to 121, a speciaized
Electoral Court system, that has the responsibility to monitor the electoral process.
4.5. Rights of Vulnerable Groups
The Constitution makes express reference to three vulnerable groups that receive
specific constitutional treatment: children and adolescents, indigenous peoples,
and the elderly. The rights of children and adolescents to life, health, food,
education, leisure, professionalisation, culture, dignity, freedom, and familial and
community care have “absolute priority,” according to the text of Article 227 of the
1988 Constitution. This is the only moment in which the constitutional text
prioritizes a specific group of rights. It is the obligation of the State, of the society,
and of the family to place children and adolescents safe from all forms of
negligence, discrimination, exploitation, violence, cruelty, and oppression. In 1989,
Law No. 8.069 was edited, establishing the Statute for Children and Adolescents.
This statute describes, in detail, the rights and guarantees of children and
adolescents, besides establishing a special jurisdictions for monitoring these rights.
The Constitution also recognized the right of indigenous peoples to their specific
social
organizations,
customs,
languages,
beliefs,
traditions
and
judicial
representation. In this aspect, it put an end to centuries of a State tutorial practice
that in effect eliminated any possibility of autonomy for the native Brazilian
communities. The Constitution even ensured to native Brazilian rights to their
traditional lands. This gave rise to a long process, full of conflict, of land
demarcation. The remnants of Quilombola communities, or, that is, descendents of
slaves that formed communities in the time of slavery, were also ensured rights to
traditionally lands, consistent with what is outlined by Article 68, in the Acts of the
Transitory Constitutional Dispositions.
Finally, even if there is no further reference to vulnerable groups, the Constitution
confers on the State, on society and on the family, in a generic manner, the task of
supporting elderly persons.
5. General Regime of the Brazilian Fundamental rights Charter
The general regime of application of the fundamental rights was basically
organized by three paragraphs (clauses) set in the end of article 5. The first
paragraph (article 5) establishes that fundamental rights are to have immediate
application, independent of further legislative regulation. It is not a matter of crystal
clear understanding, given that a large number of constitutional clauses expressly
require complementary legislation, or demand a complex set of public policies to
secure the proper implementation of fundamental rights. This mechanism was
conceived, however, as a guarantee against the omission of the legislator or the
administrator. The most acceptable interpretation to this paragraph states that
fruition of fundamental rights does not depend on ordinary legislation, so that the
omission of the ordinary legislator does not work as an excuse denying rights to a
person. This independence does not mean however that the ordinary law does not
have a central role in the outlining of a specific right, especially when they clash
with each other. But in the absence of ordinary legislation, the judiciary is
authorized to directly extract from the Constitution the content of the fundamental
rights to be applied to a concrete case.
5.1. Non-expressed Fundamental Rights
The second and third paragraphs of Article 5, in turn, open the doors of the 1988
Constitution to the recognition of human rights not expressed in the constitutional
text.
The
second
paragraph
reproduces
a
traditional
model
of
liberal
constitutionalism, outlining that the rights expressed in the Constitution do not
exclude others resulting from the fundamental principles adopted by the
Constitution. This gives the judiciary the possibility of updating the charter of rights
without the necessity of constant alteration in the text of the document. On the
other hand, the third paragraph, of Article 5, provides that human rights stated in
international human rights treaties that Brazil are part of, can be incorporated into
the Constitution, provided that the approval of these treaties is given by the
National Congress through the same procedure required for the approval of a
constitutional amendment. In the event that the approval is given through the
standard system of approval for treaties (simple majority), these rights will have the
same hierarchy as federal laws.
5.2.
Circumstances for that Allows Restrictions of Fundamental Rights
With regard to extraordinary circumstances, which authorize the restriction of
fundamental rights, the 1988 Constitution established two hypothetical situations:
the state of defense and the state of siege. The state of defense is a tool for the
preservation and prompt reestablishing of public order and social peace, in
restricted and determined locations, seriously threatened or facing imminent
institutional instability, or affected by public calamities of grand proportion. It is the
responsibility of the President of the Republic to declare a state of defense, after
receiving input from the Council of the Republic and the National Defense Council.
The decree should be en route in twenty-four hours to the National Congress, who
will decide on its validity. A decree that institutes a state of defense will state the
length of its duration and will be able to impose restrictions on the rights of
assembly, secrecy of correspondence, and secrecy of other communications (Art.
136). The state of siege, in turn, regards situations of serious disturbances at a
national level or situations of war. In this case the President of the Republic must
ask for prior authorization from the National Congress, in order to declare it. In the
case of state of siege, the only measures restricting rights that will be permitted are
the following: requirement to remain in a specific place; detention in a building not
designated for persons accused of or condemned for common crimes; restrictions
related to secrecy of correspondence, communications, and liberty of press;
suspension of the freedom to assemble; search and seizure in homes; intervention
in the carrying out of public services; and requisition of property (Art. 137 to 139).
5.3. Fundamental Rights as Limits to the Amending Power of Congress
Finally, the general system of fundamental rights establishes that a proposal for a
constitutional amendment that intends to abolish individual rights and guarantees
will not be the object of deliberation by Congress. Through this clause the 1988
Constitution creates a kind of reserve of constitutional justice that cannot be
eliminated through the power of the constitutional reformer. According to what the
Federal Supreme Court has already decided, in more than one circumstance, the
fundamental rights constitute material limits to the power of constitutional reform,
enabling the Court to invalidate amendments passed by the National Congress.