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.