The Constitution as a Basic Law –
the constitutional control and the balance of the State powers
In England,
there is no such thing as a written constitution, as a supreme law, a basic law
(“ Grundrechte” for the germanic
doctrine; Supreme law of the land” in
the North American Constitution).
It does not exist, consequently, the
constitutionality control, because the
Parliament can always legislate on constitutional issues. The British
Parliament is thus a permanent constituent, and it has legitimacy to legislate
on constitutional substance, without any another limit beyond the traditions,
the customs and the will of the people (titular of the constituent power).
In the United Kingdom, the
judges have no power of control on the laws of the Parliament. Meanwhile, in
the countries that had adopted written constitutions, erecting as dogmas the
democratic principle and the separation of powers, there is a consensus of that the basic constitutional rules must be obeyed, especially those referring to the rights and the freedoms of the
people.
Thus, to assure
the respect to the Constitution, many democratic States had created judicial
courts in order to control the regularity of the infra-constitutional acts in
face of the Fundamental Law. The jurists have debated the question, showing
that the magistrates, who are nominated and nor elected, are too much
independent, and can perfectly exceed the limits of its function of
interpreters of the Constitution, what would lead to the Government of the
Judges, incompatible with the democracy. But in these countries, where the
constitution is considered a supreme
law, this also demands the adoption of some rules on its amendment.
The secondary
constituent power, or the amendment power, fits normally to the legislative
body. These constitutions, that the doctrine uses to classify as rigid, usually
demand some special proceedings and a qualified “quorum”, so that the
Legislative could approve the constitutional amendments.
The
constitutional reform uses to be, therefore, much more difficult than the
simple elaboration of an usual law, or of any infra-constitutional law. Also in
result of the principle of the constitutional supremacy, appears the debate
regarding the subject of the “stony clauses”, or either, of those untouchable
subjects, excluded by the originary constituent, from the amendment competence
of the parliament.
The “stony
clauses” refer, normally, on the basic decisions of the State and on the rights
and guarantees of the people. This is a very controversial issue, because on it
depends, of an angle, the necessity, or the desire, of the stability and the
legal security, and the guarantee (utopian) of permanence of a legal system,
necessity that is connected to the ancestral idea of that the laws must be
perpetual, and for another angle, apparently irreconcilable, the idea of
popular representation and democratic legitimacy of the State founders
decisions. Could the constitutional supremacy limit the constituent power
itself?
The will of the people (supreme power)
would be limited by the constitutional text? If the people decided to modify
the Constitution, and to modify those previous basic decisions, how could be
justified the existence, or the immutability, of the stony clauses? Could a generation establish perpetual,
vinculative and invariant legal rules, for the future generations?
Another very
important issue is the one related with the separation of the powers, and with the effective limit of the power of
the Constitutional courts, in the performance of its function of maximum
interpreter of the Constitution. The separation of the powers is taken as a guarantee of the existence of
a democratic system, or a rule of law State, and the usurpation of the power by
the Constitutional Court would transform it into a legislator, or a permanent
constituent, instead of being the guard of the Constitution. If the
Constitution is a Basic and supreme Law, it is necessary, therefore, to control
the regularity of the laws, or either, of all and any infra-constitutional
acts.
Ironically, the
roots (case Bonham) of the jurisdictional control of constitutionality are in
England, that today does not adopt this mecanism (althought the subject is
being debated, in the context of the european alterations), because its
Constitution is common and flexible, even so either more steady than the
Constitutions of many South American republics, because it is evident that the
stability or instability of the institutions does not depend only on legal
formulas, but mainly of the people’s culture. Any judge or court, in the countries
that adopt the diffuse control, when deciding the concrete case, will not apply
the unconstitutional law.
The judge does
not revoke the law. He does not apply
the law to the case, because the
unconstitutional law is null, thus being not able to generate a legal
effect. To affirm the opposite would be
to deny the constitutional supremacy itself.
It was
developed therefore, in some countries, the constitutionality control, in its
several nuances, through the diffuse and the concentrated system.
In Brazil, the
constitutionality control is extremely complex. We have the diffuse control and
the “direct lawsuit of unconstitutionality”, in the federal scope, through
which the Supreme Federal Court decides regarding the regularity of federal and state laws and normative acts, in face of the Federal
Constitution. In the States, the Courts of Justice control the regularity of
the state and municipal laws and normative acts in face of the State
Constitutions. We also have, since 1.993, even so very criticized by the
doctrine, but accepted by the Supreme Federal Court, who judged it
constitutional, the Declaratory Lawsuit of Constitutionality, that establishes
the binding effect of the decisions of the STF.
Beyond these
mechanisms, we had some attempts of adoption of the binding “súmula” and the
“avocatória” (or incident of unconstitutionality), always in intention to
center each time more the power to decide in the Supreme Federal Court. There
are some proposals in the Congress. It is interesting that, at the same
time we adopt, in Brazil, the binding
effect, with the Declaratory Lawsuit of Constitutionality, Portugal followed
the inverse way, with the revocation of art. 2 of its Civil Code, that
established the general binding force of the decisions of the Supreme Court of
Justice. The reason pointed to that revocation was exactly the respect to the
principle of the separation of powers.
With the
maintenance of the binding effect, the doctrine and the jurisprudence had
understood that the attributions of the Legislative would be being usurped.
Moreover, the Court would be, in a sovereign way, deciding
constitutional issues, without any limitation, even being able to unpunishedly annul
the “stone clauses”. In Brazil, the Supreme Federal Court is being
transformed into a permanent constituent, without any legitimacy. After all,
supreme must be the Constitution.
The Powers must be independent and harmonic, exactly to
prevent the tyranny, according to the ideas definitively systemized by
Montesquieu. Only the people has the constituent power. The separation of the
State Powers is one of the basic principles of our legal system.
However, in
Brazil, while the President legislates through “Provisory Laws” that are
eternalized through successive new editions, and the Supreme Federal Court,
through the binding effect of its decisions, excludes from the appreciation of
the judges and courts the defense of the basic rights of the people, the
Congress, that theoretically would have the legitimacy to legislate and to
approve the Constitutional amendments, is not playing, in reality, its constitutional function,
because it is constantly entangled in the denunciations of corruption of many
of its members and many of the high employees of the other powers.
Thus, I would
like to ask for your contribution, so that we can study and debate, especially,
the problems related to the constitutional control and to the binding effect f
the Constitutional Courts decisions.
I know that my
project is very ambitious, especially because I intend to contact with some
constitutionalists of Portugal, Italy, Spain, England, France and United
States, so that they publish in this page its doctrinal articles and
participate of the debate, that will certainly serve to enrich our legal
knowledge.
It is truth
that each constitutional system possess its proper principles and its
peculiarities, and it is also truth that it is impossible to transplant the
legal norms and institutes, without the necessary adaptation, but the results,
the advantages and the inconveniences of each one of these systems can and
must be critically studied and
compared, so that we can discover the formula for the perfectioning of our own constitutional system.
That’s why I
propose, thus, the following subjects, all of the biggest importance for the
democracy and the constitutional effectiveness:
Constitutional supremacy - government of laws, or government of
men?
Constituent Power –
legitimacy, representation, democracy, globalization (mundialização)
Checks and Balances - the Constitution is the
supreme Law, and none of the State powers can exceed the limits that are
determined to it by the Constitution. How to exert, practically , this control?
In the Federal States, there is also the problem of the federative balance.
Stone clauses – How can they be considered really
invariant and eternal, in face of the principle of the popular sovereignty?
Constitutionality control - can the Judiciary be the supreme arbitrator of the economic
and social policy adopted by the legislative? Can the decisions of the
Judiciary restrict the consecrated rights and the basic guarantees in the
constitutional text?
Binding effect of the courts decisions
– are the constitutional courts usurping the attributions of the
parliaments? Is it possible to control
the constitutionality of the decisions of the constitutional courts?
Government of the Judges - how can be controlled the court that is
in charge of the constitutionality
control?
Belém, 23 de julho
de 2.001
Fernando Machado da Silva Lima
e.mail:
profpito@yahoo.com.