—Juliano Zaiden Benvindo, University of Brasilia
On February 17, the Brazilian Supreme Court, after having overturned its precedent on presumption of innocence, spurred a heated debate over the limits of interpretation of petrified or unamendable clauses of the Brazilian constitution. In an unexpected decision on a writ of habeas corpus, the majority held that the enforcement of a sentence can take place once a judgment has been affirmed by a court of appeals, rather than waiting until all appeals have been exhausted. Pragmatically, the Supreme Court argued that allowing the presumption of innocence to stand until the last possible appeal would foster lawyers’ delaying tactics and a sense of impunity in society. The decision significantly changed the criminal system landscape, and raised many concerns about the already overcrowded prisons, the cases in which appeals to higher courts remain undecided, and the increasing fervor for punishment found among state authorities and in society at large. Moreover, in issuing this decision the Court radically changed the established meaning of an unamendable constitutional clause. How far can and should a court go in reinterpreting a petrified or unamendable clause?
Article 5 of the Brazilian Constitution of 1988 sets out the fundamental rights and guarantees of Brazil. It is the most extensive constitutional provision, in which many freedoms and guarantees are enshrined as a symbol of the democratic meaning of this document, especially in contradiction to the years of military dictatorship (1964-1985). In order to protect these freedoms and guarantees from any formal change, the constitution, in Article 60, Paragraph 4, states that “no proposal of amendment shall be considered which is aimed at abolishing: … IV – individual rights and guarantees.” Article 5 is thereby the paramount example in the constitutional text of a petrified or unamendable clause. No formal mechanism of constitutional amendment of these constitutional provisions is allowed, and, if Congress makes any proposal in this direction, the Supreme Court can preventively strike it down once any member of Congress files a writ of mandamus.
The Brazilian Constitution, like many others, states in Article 5, clause LVII, that “no one shall be considered guilty before the issuing of a final and unappealable criminal sentence,” which clearly merges the presumption of innocence with res judicata. Under the established interpretation of the clause, no one can be considered guilty if he or she can still pursue, in a competent court, the reversal of a conviction. In the Brazilian criminal system, this means that, except for some specific circumstances where pre-trial detention is allowed, the defendant cannot be arrested if an appeal is still pending in front of any higher court, such as the Superior Court of Justice (“STJ”) or even the Supreme Court (“STF”).
In this case, Justice Teori Zavascki, the rapporteur, provided a comparative analysis of other criminal systems in the world, and argued that such a guarantee does not mean that a progressive demonstration of guilt in criminal courts is incompatible with the principle of presumption of innocence. According to him, even if appeals to the higher courts are on the defendant’s horizon, the provisional enforcement of the sentence does not jeopardize this constitutional principle. Moreover, he contended that the ordinary legislator has a broad discretionary power to determine the procedures for each one of the degrees of conviction. Other members of the Court followed a similar reasoning. Justice Luís Roberto Barroso, for instance, stated that the very concept of presumption of innocence, as it had been interpreted until then, was somewhat overstated. He mentioned that, once an individual is convicted by a trial court, and this conviction is confirmed by a court of appeals, the presumption of innocence is “broken,” and further that such an understanding would restore the “prestige” of the lower courts.
But it was the pragmatic argument that broke into the headlines. Justice Gilmar Mendes, for example, stated in an interview that the Court’s shift in opinion was also grounded on the “surreal” criminal system, in which there are many pre-trial detainees and others who remain free despite being convicted by a final judgment. Some judges and prosecutors, also stressing the need to put an end to impunity and the lawyers’ delaying tactics, cheered this new precedent. The Attorney General of the Republic, Rodrigo Janot, commented that this was “a decisive step against impunity in Brazil.”
The dissenting opinion argued that this shift in doctrine would disrupt one of the main guarantees and achievements of the democratic constitution. Justice Celso de Mello, the oldest on the bench, noted that about 25 percent of all convictions are overruled by the Supreme Court, and thus argued that the new jurisprudence was simply a “conservative turning point” in the interpretation of the presumption of innocence. Justice Marco Aurélio de Mello cited the well-known maxim that it would be better to have “one thousand guilty individuals free than one innocent arrested.” Disappointed, he said: “I don’t see a happy afternoon in juridical terms in the life of this Court, in the life of the Supreme Court.”
Scholarly reaction was also very hard-hitting. Emilio Meyer, Professor at the Federal University of Minas Gerais, argued that this precedent is sheer “interpretative excess,” clearly in contradiction with “transnational constitutionalism,” and expresses a lack of integrity that would allow the Supreme Court to blatantly violate a petrified clause. Thiago Bottino, from the Getúlio Vargas Foundation in Rio de Janeiro, placed emphasis on statistics to show that many convictions are overruled at the higher courts, and also stressed that this precedent would circumvent the prohibition of amending any petrified or unamendable clause as set out in the constitutional text. José Ribas Vieira and Ranieri Lima Resende, from the Federal University of Rio de Janeiro, went even further and suggested that this case should be brought to the Inter-American Court of Human Rights based on the pro homine principle.
Beneath this disagreement lies a fundamental debate over the limits on constitutional courts to interpret constitutional provisions that are formally made unamendable. As Richard Albert points out, “political actors often make changes to the furnishings of the constitutional framework, by establishing new authoritative interpretations of the text or by formally adding or removing part of the text in formal amendment, but these are changes to the constitution, not of the constitution.” History proves that constitutional courts play a fundamental role in transforming constitutionalism, making changes to the constitution, even though not of the constitution. When a constitutional court provides a radical shift in its interpretation of a constitutional text, it is expected that commentators will critique its interpretive methodology. And when it comes to a shift in interpretation of a petrified or unamendable clause, this interpretative quarrel escalates substantially. In this case, after all, the counter-majoritarian difficulty is pushed to extremes.
The constitutional text is “both democracy-enhancing and-protecting.” It constrains the interpreter as an outcome of a longstanding project that fosters democratic values. As a political choice, the Brazilian constitutional framers sought to merge the presumption of innocence with res judicata as a better guarantee of those democratic values. This argument may also be evidence of how Brazilian institutions ought to protect that constitutional principle as a cornerstone of its constitutional culture against pragmatic arguments relying on a punitive approach.
Yet, as in any other matter of significant political disagreement, constitutional constraints, no matter how strong they are, may not be enough. As a mechanism of institutional design, petrified or unamendable clauses are aimed at imposing barriers against formal changes in the constitutional text, but are quite fragile when it comes to interpreting them. Indeed, the paradoxical side-effect of having petrified or unamendable clauses in the constitutional text is that they implicitly grant constitutional courts greater powers for constitutional change. Since “the tale of constitutional stability is a myth,” the energy for change will be channeled into the institution that can somehow make it happen.
Institutional design is thereby faced with a structural dilemma. The more formally entrenched the constitutional text is, the more pressure may be placed on constitutional courts to foster or make the change. This conclusion naturally raises many concerns of legitimacy, for it is not yet clear what the limits of judicial interpretation of an unamendable clause are. Such clauses possibly put an additional burden of justification on decision-making, but what this actually means is rather nebulous. In the end, it is unclear whether and how one might limit interpretation of an unamendable clause.
The Brazilian case is paradigmatic in showing how far this clash of interpretative methodologies and conceptions over petrified or unamendable clauses can go. For now, it seems that the pragmatic argument is winning the game. It might not be a good argument, and some might even say that it is clearly wrong in light of Brazilian constitutional history and its profoundly unfair criminal system. But the lesson of this case is that the constitutional text, even if protected by an unamendable clause, is just the tip of the iceberg in this vast ocean of interpretations, dilemmas and expectations.
Suggested citation: Juliano Zaiden Benvindo, Interpreting Unamendable Clauses: Brazil’s New Precedent on the Presumption of Innocence, Int’l J. Const. L. Blog, Feb. 28, 2016, at: http://www.iconnectblog.com/2016/02/interpreting-unamendable-clauses-brazils-new-precedent-on-the-presumption-of-innocence/
 S.T.F, HC 84.078, Relator: Min. Eros Grau, 05.02.2009, Diário de Justiça Eletrônico [D.J.E], 25.02.2009 (Braz.).
 S.T.F. HC 126.292, Relator: Min. Terri Zavascki, 17.02.2016 (Braz.), Diário de Justiça Eletrônico [D.J.E], 17.02.2016 (Braz.).
 Concurring: Justices Teori Zavascki (rapporteur), Edson Fachin, Luís Roberto Barroso, Luiz Fux, Dias Toffoli, Cármen Lúcia, and Gilmar Mendes. Dissenting: Justices Rosa Weber, Marco Aurélio Mello, Celso de Mello, and Ricardo Lewandowski (Chief Justice).
 See Ronald Dworkin, Law’s Empire, 151 (1986).
 See STF muda jurisprudência para permitir prisão depois da 2a. instância, Jota (Feb. 17, 2016), http://jota.uol.com.br/ao-vivo-sessao-plenaria-do-stf.
 Previously to the precedent HC 84.078, supra note 1, the Supreme Court adopted however a more flexible understanding of the presumption of innocence. See HC 68.726, Relator Min. Néri da Silveira, 28.06.1991, Diário de Justiça [D.J.], 20.11.1992, 21612 (Braz.); HC 74983, Rel. Min. Carlos Velloso, 30.06.1997, Diário de Justiça, 29.08.1997, 40217 (Braz.).
 See Thiago Bottino, Os problemas da decisão do STF sobre execução provisória da pena, Jota (Feb. 18, 2016), http://jota.uol.com.br/os-problemas-da-decisao-do-stf-sobre-execucao-provisoria-da-pena.
 S.T.F, MS 20257, Rel. Min. Moreira Alves, 08.10.1980, 1201 Diário de Justiça [D.J.], 27.02.1981, 312 (Braz.).
 For example, the Constitution of Angola of 2010 (art. 67, 2): “All citizens shall be presumed innocent until their sentence has become res judicata”; Constitution of Croatia of 1990 (art. 28): “Everyone shall be presumed innocent and may not be considered guilty of a penal offense until his guilt has been proved by a final court judgment.”; Constitution of Italy of 1947 (art. 27): “No defendant shall be considered guilty until the final conviction”; Constitution of Portugal of 1976 (art. 32, 2): “Every defendant shall be presumed innocent until his sentence has transited in rem judicatam…”; Constitution of Cape Verde of 1992 (art. 33, 1): “Every indicted person shall be presumed innocent until his conviction becomes “res judicata”…; Constitution of Romania of 1991 (art. 23, 11): “Anyone shall be presumed innocent until found guilty by a final decision of the court.”; Constitution of Ecuador (art. 76, 2): “All persons shall be presumed innocent, and shall be dealt with as such, until their guilt is stated by means of a final ruling or judgment of conviction.”
 See Emilio Peluso Neder Meyer, Presunção de inocência até a condenação em segunda instância?, Jota (Feb. 19, 2016), http://jota.uol.com.br/presuncao-de-inocencia-ate-a-condenacao-em-segunda-instancia.
 See Código de Processo Penal [C.P.P], 3 de Outubro de 1941, Diário Oficial da União [D.O.U.], 13.10.1941, Art. 301-316 (Braz.).
 See supra note 2. See also O voto de Teori Zavascki no HC 126.292, que mudou a jurisprudência do STF sobre execuçãoo de pena, Jota (Feb. 17, 2016), http://jota.uol.com.br/o-voto-de-teori-zavascki-no-hc-126-292-que-mudou-jurisprudencia-do-stf-sobre-execucao-de-pena.
 Brazil has now more than 600.000 prisoners, of whom 39 percent are still awaiting trial. It is an inefficient and profoundly racially and economically segregationist criminal system. See Clara Velasco, Rosanne D’Agostino e Thiago Reis, Número de presos dobra em 10 anos e passa dos 600 mil no País, G1 (June 24, 2015, 7:34 PM), http://g1.globo.com/politica/noticia/2015/06/numero-de-presos-dobra-em-10-anos-e-passa-dos-600-mil-no-pais.html. For a detailed analysis of pre-trial detentions in Brazil, see Rogério Dultra dos Santos & Douglas Guimarães Leite (ed.), Excesso de Prisão Provisória no Brasil: Um Estudo Empírico sobre a Duração da Prisão nos Crimes de Furto, Roubo e Tráfico (2015).
 See Mateus Coutinho, Sistema criminal brasileiro é “surreal”, diz Mendes ao defender prisão para condenados em 2a. instância, Estado de S. Paulo (Feb. 18, 2016, 10:25 AM), http://politica.estadao.com.br/blogs/fausto-macedo/sistema-prisional-brasileiro-e-surreal-diz-mendes-ao-defender-prisao-para-condenados-em-2a-instancia/.
 See Fausto Macedo & Ricardo Brandt, ‘Fechou uma janela de impunidade’, diz Moro sobre decisão do Supremo, Estado de S. Paulo (Feb. 17, 2016, 9:34 PM), http://politica.estadao.com.br/blogs/fausto-macedo/fechou-uma-janela-da-impunidade-diz-moro-sobre-decisao-do-supremo/.
 See STF muda jurisprudência para permitir prisão depois da 2a. instância, Jota (Feb. 17, 2016), http://jota.uol.com.br/ao-vivo-sessao-plenaria-do-stf.
 See Livia Scocuglia, Com nova jurisprudência do STF, criminoso terá interesse na rapidez do processo, Jota (Feb. 23, 2016, 12:48 PM), http://jota.uol.com.br/com-nova-jurisprudencia-do-stf-criminoso-tera-interesse-na-rapidez-do-processo.
 See Celso de Mello e Marco Aurélio comentam mudança na jurisprudência do STF, Consultor Jurídico (Feb. 18, 2016, 4:28PM), http://www.conjur.com.br/2016-fev-18/decanos-supremo-comentam-virada-jurisprudencia-corte.
 See Julgamento Histórico: O STF muda jurisprudência e permite prisão a partir da decisão de segunda instância, Mgalhas (Feb. 17, 2016), http://www.migalhas.com.br/Quentes/17,MI234107,51045-JULGAMENTO+HISTORICO+STF+muda+jurisprudencia+e+permite+prisao+a.
 See Ronald Dworkin, Law’s Empire 225 (1986).
 See Meyer, supra note 10.
 See Bottino, supra note 7.
 José Ribas Vieira & Ranieri Lima Resende, Execução Provisória – Causa para a Corte Interamericana de Direitos Humanos?, Jota (Feb. 20, 2016), http://jota.uol.com.br/execucao-provisoria-da-pena-confirmada-pela-segunda-instancia-uma-causa-para-a-corte-interamericana-de-direitos-humanos.
 Richard Albert, How Unwritten Constitutional Norms Change Written Constitutions, Dublin U. L. J. 405 (2016).
 See Bruce Ackerman, 1 We the People (1993).
 See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2011).
 See Albert, supra note 30, at 406.
 Cass R. Sunstein, A Constitution of Many Minds 3 (2009).