[Editor’s Note: This is the fifth entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]
–Vera Karam de Chueiri, Federal University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq); and Katya Kozicki, Federal University of Parana, Pontifical Catholic University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq)
Brazil has a relatively new Constitution that is the outcome of a process of negotiated transition. We would rather refer to our constitutionalism from 1988 on as progressive and strongly committed to democratic procedures and democratic outcomes, but this is just part of the narrative. In the last four years it has been severely attacked. Since the impeachment of former president Dilma Rousseff in 2015, Brazilian democratic constitutionalism has faced great challenges and another narrative has started to be written.
Constitutionalism and democracy are two clashing commitments which entail a kind of paradoxical relationship in theoretical and practical terms and there is no big news on that. Yet the bad news is that constitutionalism and democracy and its unavoidable paradox have suffered serious offensives, naturally disrupting our traditional legal and political narrative. Given that narrative, our argument is that, until President Dilma Rousseff’s impeachment, constitutional changes replicated the struggle over the meaning of the Constitution that took place in the National Constituent Assembly of 1987-88. After the impeachment, it is difficult to find a standard for constitutional changes as far as the government is not accountable to a Constitution equally enforced, independently adjudicated and consistent with international human rights norms and standards.
One could identify a standard of constitutional changes from 1992 to 2014, which means a high number of amendments (eighty-four amendments) done by the legislative branch (Deputy’s Chamber and Senate) and a relatively high number of changes done by the Brazilian Federal Supreme Court (STF). The Brazilian Constitution has one of the highest amendment rates in the world (3.8 from 1992 to 2014). It sounds counter-intuitive for most constitutional scholars that a detailed and comprehensive constitution like ours with relatively strict rules of amendment (article 60) would change that much, but the phenomenon has been explained well by many political scientists.