Constitutional retrocession and reproductive rights: the curtainling women’s political participation through constitutional means

Abstract

The purpose of this paper is to discuss democratic theories and their association with constitutionalism, in order to demonstrate how democracy - with a special focus on Brazilian democracy - shows a qualitative decline that occurs exponentially through democratic and constitutional provisions. Firstly, it intends to briefly present the concept of democracy and its necessary association with fundamental rights, only to conclude that the democratic model adopted in Brazil is insufficient to implement in practical terms the promises of the programmatic constitution. In the sequence, it is attempted to demonstrate the ways of offending to the democracy, suggesting that, in Brazil, one observes subtle and discreet disrespect to the basic premises of the constitutional democracy - to what is denominated “constitutional retrocession”. From these initial analyzes, it will be demonstrated, through the discussion of Proposed Constitutional Amendment n° 29/2015, how the constitutional retrocession is practical, using democratic and constitutional mechanisms. In order to do so, the way democratically elected parliamentarians make use of this Constitutional Amendment to marginalize minorities - in the present case, women, who have their reproductive rights curtailed and, therefore, are excluded from the democratic debate, as this has as premise the freedom and equality between citizens. Finally, it is concluded that there are flaws in the Brazilian democratic model and the need for its reformulation, in order to guarantee the fundamental rights enshrined in the Federal Constitution of 1988. It remains evident, therefore, that in order to present a model of limited constitutional democracy that, for the time being, has not been fully implemented in practical terms, Brazil is facing a threat to its democratic regime in the terms developed in the present work. The need to foster legal pluralism, with a population free to choose and manifest itself in political debates, is reinforced as a reaction against these events, in order to qualitatively recover the model of Brazilian constitutional democracy. It is therefore necessary to promote a democratic government that is especially committed to equal participation, freedom of expression and the exercise of human rights. In regards to the object of this work, in particular, , it is indispensable that governments provide the means for the participation of women in political life, since they are citizens in the same way as men and therefore, under the terms of article 1 of the Federal Constitution, are required in the decision-making process.