INEQUALITIES, INTERSECTIONALITIES AND VULNERABILTIES IN TIMES OF DEMOCRATIC EROSION

In times of democratic setback, the Courts can safeguard rights and guarantees - one of the ways to do that, is through the exercise of conventionality control. Such control reveals itself as a conventional filter of the national legal system, especially relevant to reinforce national protection in struggling periods. An active role of Courts regarding human rights is key to empower public policies, being the conventional and constitutional filter an important tool for enhance rights and provide means for vulnerable groups, as example: the recognition of inclusive education, the criminalization of homophobia, the legitimacy of quotas for women´s political participation and protection of indigenous communities. Brazil is under a period of democratic erosion, carried out by an authoritarian conservative anti-human rights regime, therefore, it is important that Courts‘ embrace its role as a catalyst for human rights having international jurisdictions as its allies.

This paper discusses the glorification of the past by fascist movements as a justification to attack groups that are already in a position of marginalization in a context of democratic erosion. It discusses how fascist discourse creates a romanticized/fictionalized version of the past to create a narrative of a superior “us“ against an inferior “them“ who will be incarnated by marginalized and persecuted groups within a democratic society. Fascism doesn‘t necessarily create hates as much as it feeds from the inequalities and prejudices that are already present in a society. Fascism can breed from an apparently healthy and functional liberal democracy by utilizing the dehumanizing discourse that is already present within society. In Brazil the glorification of the military dictatorship by neo-fascist groups served as fuel for turning social groups such as indigenous people, “favela“ residents, artists, etc as enemies, justifying hate crimes and anti-democratic policies against them.

Borrowing the term “unconstitutional state of affairs“ (ADPF 347), Siddharta Ferreira states that, in relation to the brazilian prison system, it is also possible to declare an “unconventional state of affairs“. This is because the elements required for the creation of the first category are present in terms of the alleged unconventional state, namely: 1) the repeated violation of the Pact of San José of Costa Rica - 2) the persistent failure of the State to bring a solution - 3) and a structural dispute between the bodies in charge of solving the problem. The various convictions of Brazil in the Interamerican Court provide support to the analogous concept. Thus, the declaration of an “unconventional state of affairs“ aims to integrate both the OAS Commission and the Court in the structural controversy, demanding from these international bodies a more concrete intervention, which would increase the possibility of realizing the human rights in question.

The COVID-19 pandemic crisis has brought the challenge of, on the one hand, restricting freedoms such as the freedom of belief, by means of public immunization policies and, on the other hand, of preserving the right to life by means of the same policies. Public policies at the Federal, state and local level diverged, either for immunization by means of vaccines, or by herd immunity. The pandemic must be understood as a moment of tension, as it requires rethinking the arrangements between constitutionalism and democracy. For a diminished protection of individual rights that preserves collective heath, and, that is not always supported by the majority of population, it is necessary to prioritize reasonable arguments for the adoption of measures that aim at protecting the groups, whose material conditions are the result of arbitrary inequalities.

As an account of the political morality of the community, Constitutions often reflect stereotypes and discourses about gender roles in society, contributing to the normalization of the unequal relationship between men and women. Produced in a context of unequal power relations, constitutional law perpetuates this inequality by organizing a given community from a predominantly male perspective. As a reflect of masculine narratives, Constitutions distinctly impacts men and women, reason why the construction of a feminist constitutionalism requires dispute and engagement in the constitutional narrative. The occupation of the city - a space also built by and for men - by women's movements can propose new constitutional arrangements capable of breaking with the logic of gender inequality. This experience provides a critical engagement with the law highlighting its conflicting and contingent character to transform or invent new spaces for a feminist constitutional narrative.

Is democracy good for children or are children good for democracy? Until recently, the prevailing understanding was that the democratic regime would benefit children, but it was not considered that children could actively participate in democracy and contribute to public deliberations. The doctrine of integral protection and the deliberative and substantial perspective of democracy underlie the need to guarantee the effective participation of children in public debate. The expansion of institutional and non-institutional spaces of collective decision for children means recognizing the maximum amplitude of the democratic principle, according to the design given by the Brazilian constitution. Therefore, some actions seem to have the potential to promote the insertion of children and adolescents in public life.