Transforming the legislative: a pending task of Brazilian and Colombian constitutionalism*

Transformando o legislativo: uma questão pendente dos constitucionalismos brasileiro e colombiano

1. Introduction; 2. Brazil 1988 and Colombia 1991: the establishment of value pluralism and the reinforcement of democracy; 3. Transformative constitutionalism and Political Institutions; 4. Conclusions and Final Remarks; 5. References.

The enactment of the Constitution of the Federative Republic of Brazil, in 1988, marks a starting point for a time of constitutional transformations in Latin America. This Constitution, issued in an environment of distrust in the established public powers, is considered as the beginning of an era of democratization in the country, in which the Federal Supreme Court has had an increased role in its responsibility of “safeguarding the Constitution”1. Almost in parallel with this, and within the same perception of institutional distrust, in 1991 Colombia adopted its new Constitution based on democratic values and the protection of a wide range of fundamental rights (not only the classical liberal but also social and economic), establishing the Constitutional Court as an institution entrusted with safeguarding “the integrity and supremacy of the Constitution”2.

Although both countries share a long history of judicial review, after the 1988 and 1991 Constitutions, both the Federal Supreme Court in Brazil and the Constitutional Court in Colombia have had international recognition as agents of social change within systems in which democratic values ​​are threatened due to somehow dysfunctional political institutions. Notwithstanding this, there have been several objections made to these Courts in the context of pluralist and rifted democratic societies, in particular, regarding their capabilities of transforming the political institutions, rather than making by themselves most of the decisions of principle and public policy.

This paper will analyze if the Constitutions of 1988 in Brazil and 1991 in Colombia were aimed at disenfranchising the political representative institutions. As it will be seen through a brief study of the formation of these Constitutions and their main institutional designs, instead of this, they aimed at reinforcing such institutions, opening them to “the people”. In spite of the above, Courts have had a central role in developing these Constitutions, and despite the good decisions delivered when deciding particular cases, overall, transformative constitutionalism based on the prominent role of the Courts has not been that transformative in terms of reforming political institutions. In this sense, what this paper seeks to highlight is that, in order to develop an adequate theory on judicial review, it is crucial to truly identify the limitations of constitutionalism and what judicial review can and cannot do.

In 1985, after more than two decades of military rule in Brazil, the newly elected civilian government adopted a constitutional amendment empowering the next Congress to serve as a constituent assembly3. Through a process of deliberation which involved the participation of 13 political parties that conformed an Assembly of 559 members, on October 5, 1988, and within the framework of a slow and gradual process of transition to democracy called abertura (opening)4, the new Constitution of the Federative Republic of Brazil was adopted. This constitutional process is highly valued by the idea of pluralism it implied, to the point that the 1988 Constitution is a highly complex document, which includes a long set of rights5, and judicial injuctions. Its content also has “a strong emphasis on human dignity (one of the constitution’s fundamental principles), democratic rule, and a vast raft of fundamental rights, including a range of social and economic rights (although the text is silent as to whether they are justiciable)”6. The 1988 Constitution has been regarded as being designed to weaken the executive and to strengthen the legislature and judiciary7.

The judiciary, as established in the 1988 Constitution, “checks both the legislature and the executive through the power of judicial review”8. The Federal Supreme Court’s review powers were enhanced by expanding access to an existing abstract review mechanism (the direct action of unconstitutionality)9. Notwithstanding the amplified role of the Court at the center of the constitutional order as being the “guardian of the Constitution”10, said powers were established with recognition to the other public powers (specially the legislative), and even exercised, at least during early stages of the new charter, with caution and restraint.

One example of this can be seen in the 1988 Constitution’s measure regarding legislative omission, contained in paragraph 2, article 103 of the constitutional text11. This provision, rather than encouraging the Court to determine the content of the lacking measure or get into public policy making, is aimed at the issuance of a declaration of unconstitutionality and a notification to the competent power for the adoption of the necessary actions. The judiciary is called to raise a ‘red flag’ when action is needed, but not to take action by itself12. In exercising this power,

[u]nlike the Hungarian Constitutional Court’s energetic and expansive use in the early 1990’s of its power to address legislative omission (before it fell out of favor with the judges), the Brazilian Supreme Court took a relatively cautious approach to its new power to address legislative omission, keeping to simple declarations that legislation was required to give effect to a constitutional provision13.

In addition to this, it should be noted that the institutional design established in the 1988 Constitution gave great prominence to the legislative branch, which was entrusted with the power of regulating constitutional provisions through statutory lawmaking, thus recognizing the importance that Congress should have in the development of constitutional values14. In this sense, more than seeking to disenfranchise the political representative institutions, the Constitution aimed at confronting the previous hegemonic supremacy of the executive branch, in favor of a harmonious collaboration with the legislative branch which was in charge of regulating the content of the constitutional text, and with a Federal Supreme Court granted with renewed powers.

In the Colombian context, in 1991 a Constitutional Assembly, that enjoyed the support of the majority of society15, was regarded as a “consensual attempt to broaden democracy, as a means to confront a generalized state of political corruption and violence”16. This Assembly became an icon of a peaceful transition, and the recognition of value pluralism that achieved an inclusive dialogue between different sectors of the Colombian society. Even guerrilla groups, indigenous and afro communities were given a seat at the Assembly. Furthermore, the M-19 -a former guerrilla group- won an important part of the Assembly seats17. The enacted constitutional text introduced a wide catalogue of rights18, and new and more inclusive judicial procedures for the enforcement and protection of fundamental rights like the acción popular, acción de grupo and acción de tutela were adopted.

The institutional design adopted by the 1991 Constitution was complex: the Constitutional Court was created as a ‘powerful court’, but entrusted with an exhaustive list of functions such as judicial review of laws, judicial review on procedural grounds of constitutional amendments, and as a check on the executive branch during ‘times of emergency’ (among others). In addition to this, said Court was entrusted with the fundamental rights adjudication, when undertaking the review of the expedite protection of such rights via accion de tutela19, by other judges.

However, one of the main aims of this Assembly was to rescue the legislative branch from the ostracism that it had under the 1886 Colombian Constitution, due to the excessive power given to the executive branch. In this sense, for instance, one of the delegates at the Constituent Assembly expressed that:

[t]he Legislative branch cannot transfer to the hands of another the power to make laws, due to the fact that it only has that power by delegation of the people (…) the legislative branch cannot transfer its power to another branch, it must be kept where the people bestowed it. In our country, the Executive branch through its famous extraordinary faculties expedites ninety percent of our statutes, such powers must disappear20.

Although both the Brazilian and Colombian Constitutions have instantiated a complex process of transformative constitutionalism associated with the protection of rights21, and the inclusion of minority groups, it should be stated that both Constitutions recognized the importance of the legislative branch within this process, on the one hand, and empowered the Courts in its limited functions as “guardians” of the Constitution, on the other. The question that remains open is whether a strong intervention by the judiciary is instrumental to put the legislature back in shape22 and put it in tune with the transformation that both Constitutions seek to achieve.

Even though, both the Brazilian and the Colombian Constitutions aimed at strengthening the political process23 and the legislative branch, most of the constitutional law literature continues to portray legislators, in theoretical studies, as self-interested individuals seeking only to win reelection and maximize their private interests. Thus, they are shown as not to be trustworthy of “the people”, and even more, as individuals who can not take the Constitution and the values and rights it includes seriously24. Legislators are not only depicted as being vulnerable to the public opinion, as the result of being dependent on the electoral democratic process, but also Congress itself is shown as a dysfunctional institution worried only on bargaining on self-interest, but not in achieving the well-being of the citizens. Congress is shown as being unable to have discussions of principles, while the judiciary is a ‘forum of principles’25. Perhaps, in countries like Colombia and Brazil, it is hard to undertake an empirical defense of legislatures26, but it is worth considering that their Constitutions were not aimed at disenfranchising Congress as a political-representative institution, but rather to transform it into a pluralist forum that can truly exemplify their citizens, as well as the plurality that lies at the base of the population, cultures, and moral-political thought.

Even if both the Brazilian Federal Supreme Court and the Colombian Constitutional Court play a central role in the constitutional arrangements of both Constitutions, it must be acknowledged that Congress has not disappeared from constitutional designs. Congress, in a Constitution like the Colombian and the Brazilian “is not a supreme institution”, it is limited by it, “but this desirable limitation of the power of the legislature should not be taken to mean that is has lost its status as the best reflection within government of the source of political power- the people-”27. There is an urgent need in constructing a narrative of Congress as an institution that, in the light of pluralism and disagreement, can truly respect the equality of all citizens by the democratic process of decision-making, by giving them the opportunity of having their interests equally considered28 and by the same token giving them the possibility to influence the decision stage. Thus, there is a need to recover the willingness of citizens to engage in a deliberative process with those who they disagree, in the political arena and not only through litigation29.

During the last decades, and due to the good particular results that judicial decisions have achieved30, there has been very few scholarly interest in examining legislatures, and thinking on how they can be improved, in order to implement the values that were entrenched in highly plural and democratic Constitutions like the Colombian and the Brazilian. However, building an aspirational idea of Congress can instantiate a healthy discussion on the legal and constitutional reforms that are needed to put this institution back in shape.

Such depiction of Congress should depart from the same idea of value pluralism entailed by these Constitutions. As a result of such pluralism, the Constitution includes abstract and open-ended clauses that are undeniably essentially contested concepts31. As Marmor describes them, they are “general constitutional provisions containing abstract moral-political principles” which “might be seen as a kind of vague and general framework, setting the language in which moral-political concerns need to be phrased, but leaving the content of the relevant expressions free for us to shape as we deem right at any given time”32. Such approach leads to the question of who should shape those general constitutional provisions.

In a pluralist society committed with some form of equal distribution of political power33, the answer seems to be in favor of the people themselves or through their elected and accountable representatives, in a deliberative scenario, under the rules of some epistemic procedures where political equality is guaranteed by openness of deliberation, and voting as aggregation comes after a careful public debate34.

It far exceeds the aim of this paper to provide a comprehensive description of what reforms should be undertaken as to have a well-ordered legislative branch. But a sound institutional design of Congress must arise as a truly deliberative institution which not only hears but also values the voices of the minority groups, of regional interests, and of the laymen. It should be an institution with clear and easy to understand rules of deliberation that not only enhances debate and allows the intensity of preference to be duly channeled, but also respects equality at the decision stage. The electoral arrangements should be constructed to allow elections to be truly ruled by the principle of one-person one-vote, and not to be distorted through the flow of money to politics35. Congress should be committed to deliberation, as Vermeule and Garret explain,

deliberation exploits the collective character of legislatures in ways that can, in principle, improve Congress’s constitutional performance. Among the concrete benefits of deliberation are its tendencies to encourage the revelation of private information, to expose extreme, polarized viewpoints to the moderating effect of diverse arguments, to legitimate outcomes by providing reasons to defeated parties, and to require the articulation of public-spirited justification for legislator’s votes […] In addition, deliberation makes congressional decision-making more accessible and transparent to the public, which increases accountability of the decision makers and may enhance the perceived legitimacy of the outcome36.

Also, a culture of accountability must be promoted among citizens, so that the self-interest of reelection can be connected to the broad interest of respect for the Constitution and people’s rights.

As some authors have pointed out, discussions at legislative level with the involvement of citizens and their representatives might instantiate a culture of tolerance among citizens. Jeremy Waldron has stressed this argument by following the thoughts of the philosopher Bernard Williams and pointing out the difference between being able to say to a losing opponent, “Well, you lost” and saying to him, “You were wrong” or “You were proved wrong.” The former saying, “Well you lost,” is compatible with recognizing his position as honest and honorable; it’s like saying, “Better luck next time.”37. In his view, the first attitude, being associated with the democratic and majoritarian procedures, and the last one being more common with ‘moral victories’ within the process of interpretation of abstract terms by courts, a process that might send a message that such decisions might be reached in a sort of timeless fashion, declaring a timeless moral truth, as it were; with the problem for civil tolerance, that such a message conveys to the losing party that it has got its profound moral principles wrong38. Although these arguments are not conclusive, they should give us some pause as for thinking on courts as the sole agents in the application of a transformative constitution, -usually ruling in highly divided societies, aiming at reconciliation and at a higher level of tolerance and civility- and should call for more attention to improve the shape of representative institutions like legislatures.

After these brief considerations on the role of Congress in the context of constitutionalism, it is important to ask whether the strong intervention of the Courts, by means of judicial review, that has been the consequence of both the Brazilian and Colombian 1988 and 1991 constitutions, respectively, can be helpful for shaping a ‘healthy legislature’. Sometimes it is assumed that a strong substantial intervention by Courts will improve the quality of legislative outcomes, provided that “if legislators know in advance that a piece of legislation they seek to enact is likely to be struck down as unconstitutional, they would refrain from trying to enact it”.

However, as Garret and Vermeule explain, “that it is just not necessarily, or even typically, the case; scholars have long pointed out that legislators often go ahead with an act they expect to be struck down as unconstitutional because it gives them the populist political benefit vis-à-vis their constituents without actually bearing the responsibility for the unwanted consequences of the proposed legislation”39. In this sense, critics of judicial review doubt that substantive judicial intervention is good for putting back into shape a dysfunctional legislative institution. For instance, Tushnet has argued that since legislators act in the in the court’s shadow, “we really cannot know how Congress would perform if the courts exited, if Congress does badly because the Courts are on the scene”40.

On the other hand, Marmor also questions this possibility, based on the fact that unconstitutionality is not regarded as a sanction on the legislature, and therefore it does not deter Congress from proposing and enacting questionable measures, thus opening the doors for openly unconstitutional and populist proposals. At the end, following Marmor’s observations, a strong intervention from the constitutional courts can promote the disenfranchisement of a culture of political accountability, based on constitutional grounds41. Furthermore, even defenders of judicial review, as Waluchow, call the attention on the need to undertake reforms to improve the legislative branch, and not to solely rely on the decisions of courts, even if they might yield good decisions42.

Other accounts, which favor judicial review, but take a modest approach towards the changes it can achieve43, highlight that judicial intervention can be instrumental to strengthen the democratic decision making, and even fortify the representative institutions as the legislatures. Hart Ely, for example, argued that judicial review could be used as a guardianship on the existence conditions of laws44, and especially in the deliberative conditions that a representative democracy needs, like the inclusion of the minorities in the debates and decision-making on topics that certainly affect them45. In a case-based study of new democracies, including Brazil and Colombia, Daly has shown that this assertion is not conclusive, but that even said courts themselves cannot achieve all the changes needed for a well-shaped democracy there are some steps that these courts can help to take toward democratization46.

Therefore, the question on whether constitutional courts are good at promoting deliberation and democracy, is a contested matter, but a constitutional court can be regarded as an antidote to the pathologies of the democratic process47, and therefore, as having a limited role as to be in charge of reviewing the existence conditions of the laws, and undertaking a procedural review of the legislature, but not as a mere review of formalism, but also as making sure that the rules of deliberation48, and the inclusion of the minorities and disenfranchised groups are met. Those are minimal conditions of a pluralist democracy, as the one aimed by both the Brazilian and Colombian Constitutions.

As a result, in Constitutions like the Brazilian and the Colombian, the role of judges should be aimed at the transformation of the legislative branch49, not as to disappear it or to disenfranchise it from the discussions on questions of principle, rights and public policy, but rather to promote the conditions of deliberation in the political branches, and to truly transform it into a pluralist, and politically accountable forum where the discussions needed in the context of the transformative constitutionalism can take place. It has been a long-contested issue whether courts can bring about social change50, but even when the answer to this issue goes to the court’s side, it is uncontested that legislatures are also needed in the process of achieving a true and lasting social change. First, because they are instrumental to open spaces where decisions are taken in the midst of a pluralist assembly, that reflects the differences and the diversity of societies, and that at the end are accountable to the citizens51. Legislatures in well shape, can promote deliberation not only at the elected representatives level, but also at the laymen level, thus promoting a democratic culture where the questions of principle and public policy are opened to all the persons affected by them and not only to elites of either politicians or jurists.

Latin-American scholars have pointed out how the constitutions regarded as transformative have not been so ambitious in reshaping the political institutions52. In spite of the rich catalogue of rights that they have included, and the positive role that they claim from the State as to make them available for all citizens, the organic structure of these constitutions remains similar to the one that the constitutionalism from the XIX century promoted. However, this process of transformation should also be taken to the organic level, and perhaps more efforts should be made to rescue the legislative branch, as a forum where the content of these rights, and social changes could be achieved, in light of an inclusive deliberation among equals53, where the representatives of the people are free to speak without unwanted interruptions or intimidations, by arguments justified with reasons, and where equal respect and consideration is paid to the multiple arguments that are presented54.

An objection to these arguments can be raised by stating that not only by writing positively about Congress will things become better. To this objection it should be replied, that knowing the limitations of the capabilities of courts in processes of democratization, and transformation of political institutions can help to construct realistic demands on the Courts role, and to acknowledge that the political branches are at least as crucial to the functioning of democracy as are the courts55. Also, in a theorethical level, the fact that a conception of democracy is hard to achive, does not entail that as a matter of principle it should be deemed as wrong56.

As a modest conclusion, and even if it sounds as a truism, it should be stated that both the Brazilian and the Colombian Constitutions aimed at transforming their legislative institutions into pluralists, and deliberative forums, accountable to citizens, and capable of undertaking discussions of rights and principle. Even if the empirical situation does not favor this aspiration, there is an urgent need to rescue the legislatures and put them back in good shape, since they are institutions that can channel the voices of pluralist and diverse groups when deliberation is taken seriously. Also, it is hard to rescue the legislative branch from the ostracism if it is shown as a dispensable branch of government, a perception that can be easily exacerbated if most of the discussions on principle, rights and even public policy are made by the judiciary.

There is obviously a need to undertake legal reforms that strengthen political parties, aimed for example at the promotion of the participation of minority parties and social groups, and to guarantee the openness and honesty in political campaigns and congressional deliberation. Perhaps the role of the Brazilian and Colombian Courts in this transformation is better played by being the guardians of the rules of deliberation, by taking actions to promote pluralism, and by promoting the discussion among equals at the legislature, as a modest antidote to the dysfunctionality of such branch, than by making most of the decisions of principle, rights and public policy.