Malcolm Rivera
The constitutions of Brazil and South Africa have served as models for other constitutions around the world. Brazil's Constitution of the Federative Republic of Brazil establishes the country as a legal democratic state founded on principles such as political pluralism and social and individual rights. South Africa's Constitution, the supreme law of the republic, outlines human rights, citizen duties, and the government's structure. Both documents emphasize democratic values, rights, and social justice, influencing and inspiring constitutional frameworks globally. This influence is particularly notable in nations transitioning to democratic rule or seeking to strengthen their democratic foundations.
| Characteristics | Values |
|---|---|
| Country | Brazil |
| Constitution | The Constitution of the Federative Republic of Brazil |
| Constitution type | Social democratic model of State organization |
| Date of independence | 7 September 1822 |
| Previous Constitutions | 7 other constitutions, beginning with the Constitution of 1824 |
| Current form of government | Presidential, federal republic |
| Number of states | 26 states and the Federal District (Brasilia) |
| Judiciary speed | 30th slowest judiciary among 133 countries |
| Country | South Africa |
| Characteristics | Tax State |
| Watershed constitution |
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What You'll Learn
- Brazil's 1988 Constitution organized the state according to the Welfare State model
- Brazil's Constitution is the foundation and source of the legal authority of the federal government
- Brazil's Constitution created restrictions for foreign companies in several fields
- Brazil's Constitution has led to a slow judicial system
- South Africa and Brazil's constitutions addressed racial and regional divides in different ways
Brazil's 1988 Constitution organized the state according to the Welfare State model
Brazil's current constitution, enacted in 1988, defines the country as a democratic federal republic. It is the foundation and source of the legal authority underlying the existence of Brazil and the federal government of Brazil. The 1988 Constitution is the seventh enacted since the country's independence in 1822 and the sixth since the proclamation of the republic in 1889. It was promulgated on 5 October 1988, after a two-year process in which it was written from scratch. The 1988 Constitution replaced the autocratic 1967 constitution, capping 21 years of military dictatorship and establishing Brazil's current republic, often referred to as the New Republic.
The 1988 Constitution is criticized for being very extensive, long-winded, and analytical, which has forced it to be amended several times to adapt to changes in society. It has also been criticized for reproducing a model of state capitalism, expanding state monopolies and regulations, and creating restrictions for the performance of foreign companies in several fields with harmful consequences for the country's growth. Some scholars argue that this economic model favours patrimonialism and corruption and that it is responsible for creating a slow judicial system. Brazil's judiciary is the 30th slowest among 133 countries, according to the World Bank.
Despite these criticisms, the 1988 Constitution is also praised for organizing the state according to the Welfare State model, as defined by the president of the Brazilian Academy of Constitutional Law, Marco Aurélio Marrafon. This model intends to reconcile "the liberal component of preservation of individual rights and limitation of state power, with direct economic intervention and the promotion of public policies, in order to redistribute resources and reduce social inequalities." The Constitution provides for a vast system of human and individual rights protection, social welfare, and democratic tools. For example, it established a universal health care system and guaranteed health as a right of all citizens, to be financed by funds from the social welfare budget of the Union, states, Federal District, and municipalities.
To finance the Welfare State, it was necessary to raise taxes, which increased the tax burden on the country's GDP. This decrease in government maneuverability affected investments and led to criticism that the Constitution extended the privileges of civil servants, aggravating income inequality in Brazil. Remuneration and retirement benefits for civil servants are disproportionately high, and the federal government's deficit associated with retirement for government employees is significant.
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Brazil's Constitution is the foundation and source of the legal authority of the federal government
Brazil's Constitution is the cornerstone of the country's legal system and the federal government's authority. The Constitution of the Federative Republic of Brazil, established in 1988, serves as the supreme law of the land. It outlines the fundamental principles of the Union, including the roles of the states, municipalities, and the Federal District as integral parts of the Union.
The Constitution establishes a democratic state committed to ensuring social and individual rights, liberty, security, well-being, development, equality, and justice. It promotes a fraternal, pluralistic, and unbiased society, emphasizing social harmony and peaceful conflict resolution. The Constitution also establishes three independent and harmonious branches of government: the Executive, the Legislative, and the Judiciary, each with its defined roles and responsibilities.
One of the key aspects of Brazil's Constitution is its adoption of the social democratic model of State organization. This model seeks to balance individual rights and limitations on state power with direct economic intervention and the promotion of public policies aimed at reducing social inequalities. The Constitution also includes provisions for democratic mechanisms, such as plebiscites and referendums, to involve citizens in decision-making.
The Brazilian Constitution has been influential in shaping the country's legal system and addressing social issues. For example, it has provided legal remedies against hate speech and discrimination, ensuring equal treatment for all citizens. It has also reserved a percentage of jobs in public service and large companies for individuals with disabilities and enabled Afro-Brazilians to seek reparations for racism in court.
However, the Constitution has also faced criticism. Some scholars argue that it has contributed to a slow judicial system, with Brazil ranking 30th slowest out of 133 countries according to the World Bank. Additionally, a World Bank study criticized the Constitution for extending excessive privileges to civil servants, exacerbating income inequality.
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Brazil's Constitution created restrictions for foreign companies in several fields
Brazil's current Constitution, drafted in 1988, was a reaction to the period of military dictatorship. It is the foundation and source of the legal authority underlying the existence of Brazil and its federal government. It is considered to have organized the State according to the Welfare State model, which seeks to reconcile the liberal component of preserving individual rights with direct economic intervention to reduce social inequalities.
The Constitution has been criticized for reproducing a model of state capitalism, expanding state monopolies and regulations. This model has created restrictions for foreign companies in several fields, which has had harmful consequences for the country's growth. For example, Brazil's Federal Constitution prohibits foreign companies and foreign capital from investing in the national healthcare system, either directly or indirectly. Similarly, foreign investment in the mass media sector is restricted, with companies requiring at least 70% of their shares to be owned by Brazilian residents or long-term residents.
In addition, Brazil's labor laws mandate that firms with three or more employees must ensure that Brazilian nationals constitute at least two-thirds of all employees and receive at least two-thirds of the company's total payroll. The Constitution also restricts foreign investment in the telecommunications, aerospace, rural property, maritime, and insurance sectors.
Despite these restrictions, Brazil has become an attractive investment center globally, with foreign investment not generally subject to government approval or authorization.
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Brazil's Constitution has led to a slow judicial system
Brazil's Constitution, which outlines the country's federal republic system, has been criticised for its role in creating a slow judicial system. The Constitution, established in 1988, aimed to decentralise federal power and give state and municipal governments administrative autonomy. However, the judicial system has become overburdened, and Brazil now ranks 30th slowest out of 133 countries, according to the World Bank.
One factor contributing to the slow judicial process is a constitutional amendment that allows any case to be appealed to the Supreme Court, leading to a backlog of cases. The Supreme Federal Court, composed of 11 justices, has the power to declare laws unconstitutional and null. However, the Court has been criticised for allegedly undermining the Constitution and making pro-corruption decisions. For example, Justice Dias Toffoli cancelled $2 billion in fines against J&F for corruption, benefiting a company his wife represents as a lawyer.
The Constitution's emphasis on individual rights and limitations on state power has also contributed to the slow judicial system. While this aspect of the Constitution is intended to protect citizens' liberties, it has enabled persistent corruption in Brazilian politics. For instance, 'Operation Car Wash' (2014-2019) exposed corruption at the state-owned oil firm Petrobras, but it also created division and suspicion of the justice system. The investigation drained faith in the Workers' Party, which had promised a cleaner form of politics.
Furthermore, the Constitution's economic model has been criticised by some scholars for favouring patrimonialism and corruption, which further slows down the judicial process. The military has played a significant role in Brazil's history, and during periods of authoritarian rule, powerful landowning interests dominated politics. Even in more recent democratic elections, there have been allegations of corruption and judicial persecution, with some calling for military intervention.
Overall, Brazil's Constitution has contributed to a slow judicial system through a combination of factors, including constitutional amendments, an overburdened court system, corruption, and economic policies that favour patrimonialism. These issues have led to a loss of faith in Brazil's democratic institutions and a perception of judicial dictatorship among citizens.
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South Africa and Brazil's constitutions addressed racial and regional divides in different ways
South Africa and Brazil's constitutions are products of their respective histories and political contexts. Both countries have experienced racial and regional divisions, but their constitutions address these issues differently.
Brazil's 1988 Constitution, also known as the "Brazilian Magna Carta", establishes the country as a social democratic state. It aims to reconcile individual rights and limitations on state power with direct economic intervention to reduce social inequalities. Brazil's constitution has been criticised for its slow judicial system and the mandatory vote, which some Brazilians reject as undemocratic.
South Africa's constitution, on the other hand, has undergone several iterations, reflecting the country's struggle to establish a non-racial democracy. The current constitution, enacted in 1996, is the country's fifth and was preceded by an interim constitution in 1993, which guided the country's transition from apartheid. The end of apartheid in 1994 paved the way for democratic reforms and the election of Nelson Mandela as the first non-white president. South Africa's constitution is considered one of the most progressive in the world, emphasising human dignity, equality, and human rights. It establishes a multi-party democracy with universal adult suffrage and a Bill of Rights that guarantees fundamental freedoms and civil liberties for all citizens.
The differences in the constitutions of South Africa and Brazil can be attributed to their unique historical contexts. Brazil's constitution reflects a focus on social democracy and economic intervention, while South Africa's constitution emphasises the establishment of a non-racial democracy and the protection of human rights and freedoms.
While Brazil's constitution has faced criticism for its slow judiciary and mandatory vote, it also establishes important foundations for the country's legal system and addresses social inequalities. South Africa's constitution, praised for its progressiveness, seeks to heal the divisions of the past and establish a society based on democratic values, social justice, and human rights. The constitution-building processes in both countries were influenced by their respective historical contexts, with Brazil focusing on social democracy and economic intervention, and South Africa prioritising racial equality and democratic reforms.
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Frequently asked questions
The Constitution of South Africa is the supreme law of the Republic of South Africa. It was created to end apartheid and introduce a democratic government, with the protection of human rights and the definition of the structure of the government as key principles.
The Interim Constitution contained 34 constitutional principles, including multi-party democracy with regular elections and universal adult suffrage, the supremacy of the constitution over all other laws, a quasi-federal system, non-racism and non-sexism, the protection of all fundamental rights, freedoms and civil liberties, equality before the law, the separation of powers with an impartial judiciary, and the protection of the diversity of languages and cultures.
The Constitution of the Federative Republic of Brazil was established to ensure the exercise of social and individual rights, liberty, security, well-being, development, equality, and justice as core values of a fraternal, pluralist, and unprejudiced society.
