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  • Artur Pericles Lima Monteiro

    PhD candidate, MSc (2017) and LLB (2013), Faculty of Law, University of São Paulo.

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    Publications by Artur Pericles Lima Monteiro

    Book Chapters

    2017

    Monteiro, Artur Pericles Lima

    Liberdade de profissão e economia de compartilhamento: desafios do trabalho na multidão Book Chapter

    Zanatta, Rafael A F; de Paula, Pedro C B; Kira, Beatriz (Ed.): pp. 217-236, Juruá, Curitiba, 2017, ISBN: 978-85-362-7389-1.

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    Monteiro, Artur Pericles Lima

    Um horizonte mais amplo para o direito à saúde: a ação governamental em escala e processo admnistrativo para formulação de protocolos clínicos Book Chapter

    Bucci, Maria Paula Dallari; Duarte, Clarice Seixas (Ed.): Judicialização da saúde: a visão do poder executivo, pp. 486-519, Saraiva, São Paulo, 2017, ISBN: 978-85-472-1127-1.

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    Masters Theses

    2017

    Monteiro, Artur Pericles Lima

    Online anonymity in Brazil: identification and the dignity in wearing a mask Masters Thesis

    Faculty of Law, University of São Paulo, 2017.

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    Website submissions by Artur Pericles Lima Monteiro

    Carlos Bernal (Constitutional Court, Colombia): Is Transformative Constitutionalism an Illusion for the Global South?

    The International Dialogues in Constitutional Law event resumed its activities in the second semester of 2018 with the lecture “Is Transformative Constitutionalism an Illusion for the Global South?”, presented by the judge of the Colombian Constitutional Court Carlos Bernal Pulido. In this conference, the Minister presented the path for Courts’ transformative action to promote a representative, deliberative and participatory democracy.

    According to Bernal, there is a conceptual uncertainty as to what “transformative constitutionalism” is, especially given the lack of clarity as to the objectives to be achieved. As a response, he identifies two purposes: reducing extreme poverty and reducing inequality. The performance of the Courts in the constitutional jurisdiction should, then, be guided by these principles.

    Substantially, Bernal points out that non-interventional Courts do not help in achieving these goals. On the other hand, interventionist Courts are more likely to be discredited due to the lack of results, to the creation of perverse incentives and to the destruction of wealth due to the prioritization of the interest of small groups in detriment of common interests.

    Thus, the path defended by the judge is intermediary: an active Court in constitutional jurisdiction, but guided by proportional and deliberative constitutionalism. In this sense, the judicial performance should favour the dialogue between those involved and consider the financial consequences of the cause, avoiding the attribution of unenforceable charges.

    Report by Ana Clara Pamplona, translated by Natalia Langenegger. Photos by Artur Pericles Lima Monteiro.

    Christopher Mbazira (Makerere University, Uganda): Transnational judicial dialogues and the enforcement of socioeconomic rights

    On October 17, 2018, our guest was Prof. Dr. Christopher Mbazira, professor at Makerere University in Uganda. From the analysis of constitutional jurisdiction and constitutionalism in three African countries (South Africa, Kenya and Uganda), Mbazira identifies the existence of a transnational judicial dialogue. This dialogue is mainly expressed by direct interaction between judges from different countries which voluntary quote votes from other Courts.

    Mbazira argues that the best explanation for this phenomenon is that judges have progressively increased the amount of times foreign Court’s decisions are quoted because they identify themselves as peers. Thus, organically, they have come to recognize similarities in the agenda pursued, in the methods used and in the purposes sought by the institutional structure in which they belong.

    To illustrate this relationship, he presented a set of concrete examples. In this movement, South Africa emerges as the Country leading the changes and inspiring other countries to emulate them, as a leader of the pack. However, in recent times, Kenya has also emerged as a possible influence for other Courts in advancing rights. This was mainly due to the adoption of the new constitutional text, also influenced by other Countries. Among other provisions, this constitution establishes that State must prove the absence of financial resources to finance public policies.

    After professor’s Mbazira’s presentation, he answered questions presented by the audience, among which (i) about the possibility of naming the phenomenon as dialogue if no actual exchanges between Courts occur, (ii) related to the evidence of the existence an effective influence, and (iii) resulted in an invitation to conduct a normative reflection on the consequences of this phenomenon.

    Written by Ana Laura Pereira Barbosa. Translation by Natalia Langenegger. Photos by Artur Pericles Lima Monteiro and Fernanda Mascarenhas de Souza.

    Carlos Bernal: Is Transformative Constitutionalism an Ilusion for the Global South?

    Are a constitution and a constitutional court capable of effecting social transformation? These are some of the questions our next guest will be addressing.

    We are back this week with the International Dialogues in Constitutional Law, with Carlos Bernal Pulido, justice of the Constitutional Court of Colombia. He will give the lecture “Is Transformative Constitutionalism an Illusion for the Global South”.

    Aside from sitting in one of the most influential constitutional courts in Latin America, Carlos Bernal, a leading scholar in constitutional law, is the author of several books and has published in the some of the world’s most important journals.

    Is Transformative Constitutionalism an Illusion for the Global South
    Carlos Bernal Pulido
    Constitutional Court of Colombia
    October 10th, 10 am
    Faculdade de Direito da USP, auditório do 1º andar

    Udo Di Fabio (U. Bonn) to give lecture on political parties

    Few topics are as controversial in the public debate in Brazil as the financing of politics, particularly political parties. This will be one of the central subjects for our next event, next week.

    On Thursday, May 10th, at 10 am, Dr. Udo Di Fabio, a professor at University of Bonn and a former judge on the German Constitutional Court will give a lecture, followed by a debate, titled Political Parties: Constitutional Status, Financing and New Challenges. Everyone is welcome to attend.

    Political Parties: Constitutional Status, Financing and New Challenges
    Prof. Dr. Udo Di Fabio
    May 10, 10h
    Faculdade de Direito da USP, auditório do 1º andar

    ‘International Dialogues’ hosts Francisco Urbina

    On Thursday, April 26, at 10am, our International Dialogues in Constitutional Law is back, with Professor Prof. Dr. Francisco J. Urbina (Pontificia Universidad Católica de Chile).

    He will talk about his book A Critique of Balancing and Proportionality. Urbina is one of the main critics of balacing and proportionality as methods for settling disputes and applying the law. His 2017 book is unquestionably a major contribution in the topic.

    Urbina will also join us in a closed-doors seminar on April 27, also at 10am, when we will discuss his working paper “Separation of powers: the minimal view”. RSVP required via email: dialogues@usp.br.

    Ralf Poscher (Universität Freiburg, Germany): Codifying the right of assembly

    Our International Dialogues on Constitutional Law hosted Ralf Poscher (Universität Freiburg). He talked about freedom of assembly, drawing from his experience in devising a ‘master code’ for freedom of assembly in Germany.
    Poscher started his talk by emphasising what he thinks is the central aspect of the freedom of assembly, the physical presence of demonstrators, who ‘stand with their bodies’ for the ideas they advocate, he said. This makes protests a special kind of expression, different from writing an op-ed piece for a newspaper, for instance. It is precisely because a demonstrator’s body is exposed that he is afforded the special protection of the freedom of assembly.
    Regulation must have this aspect above all, Poscher argued: while some restrictions required to prevent harm should be admitted, those are second-level concerns. The primary goal of regulation should be to “enable and facilitate the exercise of the right of assembly”.
    Law should then respect the autonomy of the assembly: organisers should be free to pick the purpose, the time, the route and generally how to organise it. The master code consequently admits assemblies that have no leaders or formal organisation even, although it does provide for a kind of assembly which is directed by a leader, who is given power to take decisions which are legally binding upon demonstrators. The police, in that case, are only allowed to interfere with the assembly after calling upon the leader of the assembly to address an issue (by removing a demonstrator engaging in disorderly conduct, for instance) by themselves.
    The master code also includes a mandante that organisers give the police 48h notice of the assembly, or face a misdemeanour charge. This is mitigated for spontaneous assemblies and assemblies called with less than 48h before the time of the assembly.
    The police are only allowed to interfere with the assembly when there is a ‘imminent, concrete risk to public safety’, Poscher explained. This means that abstract speculations and even concrete risk of minor illegal behaviour do not sanction police interference. And the police are only allowed to disband an assembly when it deems there is no alternative to preventing harm. Only following this formal decision by the police, and after demonstrators are warned and given appropriate notice, are then the police allowed the proceed under ‘regular police law’.
    Demonstrators are also generally entitled to wear masks and protective gear. Those might be needed so that individuals are able to exercise their freedom of assembly, wearing masks to avoid retaliation for joining a protest, and protective gear to protect against those who would explore their bodily exposition to harm them. Conceding that those may also be use to facilitate illegal conduct, the master code provides that the police may order demonstrators to remove those, again in a formal decision which may be challenged in court afterwards.
    Similar rules apply to assemblies in privately-held public places: if those are used for transit as streets and parks are, demonstrators are not required to secure consent of the owner.
    Poscher finally highlighted that while those provisions are all important in preserving freedom of assembly, a democratic culture in policing is just as important; police, he insisted, must have a clear view of their professional responsibility to enable and facilitate assemblies, instead of limiting or managing them.