Saul Tourinho Leal, Visiting researcher at SAIFAC, PhD in Constitutional Law and President of the "Sub-Committee on Foreign Relations with South Africa" of the Brazilian Bar Association.

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Justice Albie Sachs, when closing his presentation in The College of Law’s Ray Distinguished Lecture at the University of Kentucky on April 12, 2013, stated that he believed that the establishment of the Constitution of South Africa by the Constitutional Court “brought a lot of happiness and a lot of emancipation to many people”[1]. Would it be a role of the Judiciary to assure happiness for the people? Is it appropriate for a Supreme Court to consider happiness to be a right?

Happiness has been one of the constitutional themes ever since the United States Declaration of Independence (1776). It is present in the Constitutions of Japan (1947), South Korea (1948), France (1958 – preamble) and Bhutan (2008). Likewise, the French Declaration of Human and Civic Rights (of 26 august 1789)[2] as well as the American Declaration of the Rights and Duties of Man (1948)[3] mention happiness. In the United States, thirty-one States also introduced it in their constitutions. There “have been 90 cases at the Supreme Court since 1821 that used the expression ‘pursuit of happiness’”[4].

Many other revolutions associated happiness with popular participation: The Haitian Declaration of Independence (January 1, 1804), the Venezuelan Declaration of Independence (July 5, 1811), the Texas Declaration of Independence (March 2, 1836), the Declaration of Independence of Liberia (July 16, 1847) and the Declaration of Independence of the Democratic Republic of Vietnam (September 2, 1945).

Even in the international sphere, the General Assembly of the United Nations Organization proclaimed March 20th as the International Day of Happiness. At that time it approved a resolution addressing happiness as a right and exhorted all of the countries to consider it in the development of their public policies.

Brazil

In Brazil, legislation does not explicitly provide for the right to happiness. Brazil opted for the neutral term “well-being”. Even so, in 2010, the National Congress received two proposals of constitutional amendment that wished to include the right to happiness among the social rights[5]. These proposals are pending before the House of Representatives and the Senate, but none of them has yet been approved. However, the Brazilian Supreme Court has mentioned the right to happiness in several rulings, regardless of the fact that this word – happiness – is not present in the Constitution.

An important decision regarding same-sex unions has moved this right to the center of controversy. One of the majority votes in favor of same-sex unions included a topic on the right to happiness. It was said that it is constitutional in nature, considering the principle of human dignity, which is one of Brazil’s objectives. It could thus be regarded as an implicit constitutional principle.

Genesis

This evolution can not only be seen in Brazil. Important decisions of respected supreme courts have recognized happiness as a right and, by means of it, have assured other rights. All of this has an impact on global constitutionalism.

The first constitution to address, on current terms, the power given to the courts to assess the constitutionality of the laws and of the normative acts, was the Constitution of the State of Pennsylvania, in the United States, in 1776.

Chapter Two, Section 47, disciplines the choice of the “Council of Censors”, which has the duty of “examining whether the Constitution was preserved in all of its parts without any single damage”, as well as “if the responsible bodies of the Legislative and Executive Branches fulfilled their functions as guardians of the people, or if they appropriated or exercised any other or greater rights than those that were granted to them by the Constitution”. 

The genesis comes with the provision for the calling, by the Council of Censors, of an extraordinary commission whenever “it appears to them that there is the absolute need to correct any defective article of the Constitution, to explain any one of them that had not been expressed clearly or to add articles that could be necessary for preservation of the rights and of the ‘happiness’ of the people”[6].

Brazilian Supreme Court

Inspired by the above evidence, the most important Brazilian decision mentioning the right to happiness came  in 2011. The Supreme Court was supposed to decide on the interpretation to be given to article 1.723 of the Civil Code, which only recognizes as family unit a common-law relationship between a man and a woman, which is of public knowledge, continuous and long-lasting and was established for the purpose of building a family. The need to discipline which interpretation was compatible with the Constitution resulted from the fact that government bodies refused rights to homo-affectionate couples[7]. It was up to the Court to decide if this union also covered same-sex couples, although the provision mentions “man and woman”.

During trial, two judges used the expression ‘happiness’. The first one, in a short statement, was Justice Luiz Fux, who said: “more than a life plan, we will give this segment of noble Brazilians a plan for happiness”. Associating the tolerance and acceptance with happiness is not a figure of language. Surveys show that “a greater tolerance of gays and other minorities increases the national happiness”[8].

Justice Celso de Mello opened a specific point to speak about the right to happiness, and even discoursed on its origin, philosophical roots and evolution in other countries, such as in the United States, France, Japan and the Kingdom of Bhutan.

The Justice’s opinion was called “The right to the pursuit of happiness, a true implicit constitutional postulate, as expression of the conviction that derives from the principle of human dignity”. He started by saying “I recognize that the right to the pursuit of happiness – which is severely compromised when the National Congress, due to the influence of majorities, fails to formulate measures to ensure that minorities enjoy fundamental rights – represents a variation of the human dignity principle. It thus qualifies as one of the most significant implicit constitutional postulates, the roots of which go historically back to the Declaration of Independence of the United States”.

The Justice carried on: “the constitutional postulate of the pursuit of happiness, which results implicitly from the same core that irradiates the human dignity principle, takes on an extremely important role in the affirmation, enjoyment and expansion of fundamental rights. Due to its own teleology, it qualifies as a neutralizing factor of harmful practices or omissions, whose occurrence may compromise, affect or even sterilize individual rights and freedoms”.

After invoking human dignity, Justice Celso de Mello introduced the right to the pursuit of happiness. He said: “Considering that the fundamental objective of the Republic is to promote the general well-being, without any prejudice as to origin, race, gender, color, age or other types of discrimination, it seems irrecusable that the recognition of the right to the pursuit of happiness, which is the conviction that comes directly from the constitutional postulate of human dignity, allows us, given the context before us, to breach the obstacles that hinder the intended qualification of homosexual civil unions as family units”[9].

When the Supreme Court recognized the common-law relationship between the gentleman that was insured by the Instituto de Previdência dos Servidores Públicos do Estado de Minas Gerais (Minas Gerais State Public Servants Welfare Institution) and his partner, the insured man’s daughter filed an appeal claiming that “the thesis of the right to happiness may not override the existing law, since everyone has a different opinion on what that subjective metaphysical state of euphoria is”. She also argued: “As for the Judiciary being open to social changes and accept them even if there is no law to support them, barring better judgment, it would be up to the National Congress to interpret those changes and include them”. Finally, she wrote: “Only the law or an amendment to the Federal Constitution could provide legitimacy to what the gentleman hereby claims, i.e. for a man to receive the pension from a man he allegedly lived in a ‘homoaffectionate relationship’”[10]. The Supreme Court denied her appeal.

Judicial activism

The controversy brought about by the trial, added to the fact that one of the opinions mentioned the right to happiness, raised questions as to whether the Supreme Court was moving towards judicial activism. In the House of Representatives, the coordinator of the Evangelical Parliamentary Front, João Campos, did not only refer to the decision as “judicial activism”, but also said that “only a minority of society wishes to have a debate to change this concept of the Constitution. Who can make this change? Only the National Congress, through an amendment”[11].

According to at least one of the members of the Brazilian Supreme Court, the right to happiness is implicitly contained in the Federal Constitution, and could therefore be used as ground for a court decision. This position becomes very relevant in discussions regarding the normative density of the right to happiness; those discussions currently place it as merely a declaratory introductory norm, and, on the other hand, place the right to happiness as a right that is as relevant as any other, for example the right to property, which can irradiate its effects and be ground for a court decision.

By presenting such aspects, it was intended to demonstrate the consequences that global constitutionalism – in the light of the Brazilian experience – will feel as to the need to increase the density of the concept of happiness, often it to other rights of explicit constitutional provisions.


[1] SACHS, Albie. 2013-2014. The Sacred and the Secular: South Africa’s Constitutional Court Rules on Same-Sex Marriages. Kentucky Law Journal, Volume 102, 2013-2014, Number 1, p. 160.

[2] (…) “to the end that the demands of the citizens, founded henceforth on simple and incontestable principles, may always be directed toward the maintenance of the Constitution and the ‘happiness’ of all”.

[3] American Declaration of the Rights and Duties of Man (Adopted by the Ninth International Conference of American States, Bogota, Colombia, 1948) WHEREAS: The American peoples have acknowledged the dignity of the individual, and their national constitutions recognize that juridical and political institutions, which regulate life in human society, have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness; (…).

[4] LIM, Jibong. Pursuit of Happiness Clause in the Korean Constitution. Journal of Korean Law, Vol.1, Nº.2, 2001.

[5] These proposals wish to amend Art. 6 of the Federal Constitution by including the right to the pursuit of happiness in the welfare rights. Proposal No. 19, of 2010, was submitted by Senator Cristóvan Buarque and proposal No. 513, of 2010, pending before the House of Representatives, was submitted by Representative Manuela d’Ávila. Both Senator Buarque and Representative d’Ávila stated in the justification of their proposals: “the history of the pursuit of happiness principle shows how it has been present in the most important libertarian documents that ensured fundamental rights, as in the Declaration of the Rights of Man and of the Citizen”.

[6] Accessed in May 2015. Available at: http://avalon.law.yale.edu/18th_century/pa08.asp

[7] In Brazil, when Supreme Court justices allowed same-sex unions, the expression “homosexuality” was banned from the decision and replaced by “homo-affection” in response to accusations made by groups fighting for the freedom of sexual orientation that “homosexuality” sounded like a disease. 

[8] Ronald Inglehart, Roberto Foa, Christopher Peterson and Christian Welzel, "Development, Freedom, and Rising Happiness – A Global Perspective (1981-2007)" Perspectives on Psychological Science (2008), p. 271.

[9] ADPF 132/RJ.

[10] RE 477554 AgR/MG.

Statement released to the Press Office of the House of Representatives on 05/11/2011.

 

 

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