by Vinício Carrilho Martinez, Vinícius Scherch, and André Pereira César

“Brazil needs a Constituent Assembly (National Constituent Assembly) in 2023!” – say some sectors dissatisfied with the reforms induced in the Federal Constitution of 1988 and with the worst institutional and social results provoked: the examples would be varied, from the Fiscal Responsibility Law, the PEC da Fome, the Labor Reform, the amendment of FHC’s forced reelection and the PSDB’s “dream” of to stay in power for 30 years – a wish that was partially fulfilled, starting with São Paulo.
Other sectors still yearn for the collapse of the Public Power, the State, in a clear reference to the 1990s movement, ratified by “law theorists” who point to the “need for advancement, progress, inevitable historical development” that give rise to “the theses that support political-economic purposes convenient to the implantation of interests, thus presenting themselves as a form of neocolonialism” (MELLO, 2017, p. 110).
Added to this “legal infiltration” is the desire to overthrow social networks for the protection and advancement of human dignity, based on a solid base and bunker on Avenida Paulista and the famous Faria Lima. There are many banks gathered there, even the “businessmen” exploiting the growing slave labor and the executioners who destroy the environment.
The institutional coup d’état is not so gradually erected, as reported by Paulo Bonavides, in which “liberals and globalizers definitively take over not only the government but the institutions, governed by a thought that contradicts the conservation of the basis on which the theory of the sovereign national state rests, refractory, by nature and essence, to the canons of globalization” (BONAVIDES, 2009, p. 23).
In addition to the people who associate almost nothing, there are still sectors of society that evaluate all this and much more, such as privatizations that want to link to public universities and the undoing of the Unified Health System – the famous SUS saves us every day, but it’s broken. However, in this case, the greater the volume of critical analysis of the loss of institutionality and increasing desocialization for these sectors, the greater the certainty that a Constituent Assembly in 2023 would bring even more serious harm to the Civilization Process of this country.
We are in this group and we will indicate a summary of our assessment and position in the face of this fact. The first conclusion, the simplest, indicates that Brazilian culture is corrupted by militia and religious Fascism – despite the worst contradictions. The second conclusion that we reached and that, in the text, we present in summary, concerns the colonization of the National Congress by the most retrograde types of coronelismo: a rancid trait that approved, for example, that banks would pledge the only property of bankrupt families and already very poor. Add to that the dysfunctional and political illiteracy of millions of voters who do not even relate this national tragedy to the current rulers of power.
The result is anticipated: the National Constituent Congress of 2023 will be the same or worse than the one we have in 2022. Why can we say that? Because 90% of the people do not know what the Congress itself is for and, thus, choose their representatives according to the little pulls they have close to their homes, neighborhoods, localities, and municipalities, just as the parliamentarian handles lost funds and tax amendments budget in this great exchange of favors. The people expect federal and state deputies to bring “something” (parliamentary amendment) to their city and one never imagines that the role of the legislator is, exactly, to legislate in favor of the Public Thing and to supervise the ruler who annihilates the collective patrimony.
The choice of the Constituent that resulted in CF88, our closest temporal parallel, was somewhat different from what can be projected from now on. Today, the people are still rocked by the neo- Pentecostalism of results, by the customs of the “good citizen”, armed and influencing churches and social networks. In 1985, the political airs celebrated the resumption of democracy, the civil government, the Law that surpassed the AI-5, the exile, and the most serious crimes against humanity committed by the military regime of 1964. It can be said that the people did not make all these correlations, of course, but the “Diretas Já” (lost in the political struggle), the strengthened unions, and the party licensing franchised to the left brought enormous political vigor, uncontained by the wrinkled and bereaved Paulista and Faria Lima.
In 1985, schools and their associations, law courses, families, law firms, freed parties, and social and popular movements, debated “What is a Constituent Assembly”; countless books were written and, most importantly, we had the greatness of a Florestan Fernandes and a Darcy Ribeiro. The country needed modernity (in fact, the whole of South America) and the 1985 Constituent Assembly reflected this. Today, we have the intellectual minority of the center ruling the mismanagement of duty.
The situation in 1985 was completely different: the country was gradually emerging from fascist spells. Currently, on the contrary, the country is immersed in “fascist reasoning” (sic). Today, the knowledge base is so limited in smallness that economic defeat is not even associated with the current government. The Executive stopped buying vaccines and, even so, was not held responsible for thousands of preventable deaths. That is if there is not even associative capacity in the face of the immediate (empirical) relationship between specific phenomena, let alone in conceptual and constitutive terms.
Let us ask in the streets: What is a Constitution? What is a Constituent? We often receive responses with cognitive dissonance, including from political and legal sectors. An unsatisfactory (but opportune) answer, however, would tell us that the Constitution is the “Law of laws”: the law that delimits the entire legal system, defines, regulates, institutes the constituted powers, legitimizes the form of government, promulgates and defends rights, guarantees, and freedoms; it specifically differentiates between government and state and regulates the existence of parties and political pluralism.
The Constituent Assembly is the political-legal (representative) process that leads to these social, economic, cultural, and educational contours and deliberations, as well as dealing with legal security that translates into health, environment, and public education (or not). In 1985, it was more or less like this, in 2023 it will be the opposite of what we achieved in 1988, even if it can be accused of “Constitution agreed, commissioned”. Today, the supposed “new Constituent” would only be a commissioner of recalcitrant, replicating Fascism.
The Constituent Assembly of 2023, if any, will be to constitute what Fascism centralized in the center, in Paulista and Faria Lima, has not yet been able to enforce. Therefore, in another way, we think, yes, of the popular capacity to pressure the Legislative elected in 2022, so that it ceases the deconstitution of the CF88 and recovers lost rights, interests, and institutions – at least since 2016, with the coup d’état -, to then make the Federal Constitution of 1988 advance the milestones of the Civilizing Process already registered as a historic achievement.
If the CF88 is a historic achievement, as a synthesis of the best European constitutionality of the 1970s-80s, and unprecedented in America, there is no reason to run the risk of revoking it; there is no reason to run the risk of a blank letter for the center and its tentacles. What we need is to stop the bloodletting, the deconstitution of the CF88 and collectively promote the historical gain and the teleological postulation promulgated by Ulysses Guimarães: that we are not, once again, “traitors to the Constitution”, precisely so that we do not agree with all the traitors’ homeland, people and intellectual honesty. In politics, as has always been known, adventurers are the worst.

References

Mello, Celso Antonio Bandeira de. Administrative law course. 32 ed. São Paulo: Malheiros, 2017.

Bonavides, Paul. From the Constitutional Country to the Neocolonial Country (The overthrow of the Constitution and the recolonization by the institutional coup d’état). 4th edition Sao Paulo: Malheiros, 2009.

Vinícius Alves Scherch, André Pereira César and Vinício Carrilho Martinez (2022) "A New Constituinte?". Brazilian Research and Studies Blog. ISSN 2701-4924. Vol. 3 Num. 1. available at: https://bras-center.com/a-new-constituinte/, accessed on: September 21, 2022.