—Juliano Zaiden Benvindo, University of Brasília
Jon Elster once wrote that “… the task of constitution-making generally emerges in conditions that are likely to work against good constitution-making.” Passion – as he puts it – prevails over reason in such turbulent circumstances. When it comes to other forms of substantial constitutional change, such as what Richard Albert has recently called “constitutional dismemberment,” whose purpose is “to unmake the constitution” by passing a change that “is incompatible with [its] existing framework,” do Elster’s words also apply? Brazil, which passed through a traumatizing impeachment process of President Dilma Rousseff in August 2016, is still facing a major political crisis. At this very moment, over one hundred political figures are under investigation for corruption at the Supreme Court, a situation Foreign Affairs perfectly described as “Brazil’s Never-Ending Corruption Crisis.” As dramatic as this political crisis is, constitutional change is gathering pace as rarely since democratization in 1985, affecting areas that have been historically deemed to constitute the social core of the 1988 Constitution. An extensive overhaul of the national pension system, as set out in the constitutional text, is about to be voted on in Congress. Labor legislation is also being attacked. All this follows an already passed constitutional amendment which freezes federal spending for two decades, only allowing increases according to the previous year’s rate of inflation. Elster’s words thus seem to be a good match for Brazilian reality, but isn’t it paradoxical that a sort of “constitutional dismemberment” takes place exactly when the political system is sinking fast?
It is true that “constitutional dismemberment,” according to some of Richard Albert’s examples, can take place in seemingly stable contexts and be the outcome of calculated steps that, through distinct means, radically modify the constitutional text. The cases of the Japanese Constitution’s Peace Clause, and Canada’s Constitution Act of 1982, for instance, would possibly qualify as such. But, like typical processes of constitution-making, sweeping and structural modifications to the constitutional framework seem to be more easily introduced in such circumstances of crisis, when passion and reason – to use Elster’s terminology – are clashing with each other. The case in Brazil is of particular interest, because such changes are taking place amid a soaring antipolitical sentiment and through technocratic means. While there is a deepening distrust of politics in society, the political sphere is passing legislation without any serious democratic debate and through a typical top-down process of decision-making. Using a discourse of economic rationality sold by some pundits and members of an extremely unpopular government, these changes are sold as a necessary safeguard for the Brazilian future and which must be passed urgently. There is no discussion of whether these changes would disrupt some of the commitments of the Brazilian Constitution aimed at improving and guaranteeing social rights to its most vulnerable populations. Perhaps one could argue that the constitution must be modified to face some real fiscal challenges in realizing those social rights, especially in a context of economic downturn. However, these changes – as Marcelo Medeiros, one of the greatest researchers on inequality in Brazil, argues – “impose undue constraints on the poorest, create an unfair pressure on women, and grant privileges to influential groups.”
This “constitutional dismemberment” is particularly painful when it is confronted with the history of the Brazilian Constitution of 1988, whose Constituent Assembly was marked by the participation of distinct sectors of organized civil society and many of whose provisions were clearly aimed at establishing a welfare state. Its preamble, for example, sets out “the purpose of ensuring the exercise of social and individual rights,” and labor rights, social security rights, among others, are all comprehensively regulated in the constitutional text. Since democracy, many attempts to reverse those rights have been made, but no change has ever taken place in such magnitude and pace as today, with damaging effects especially for those most in need. A strong deregulation of longstanding social safeguards is in full steam, while the government claims it is “modernizing” legislation.
These changes notwithstanding, the political crisis is impressive. After President Dilma Rousseff’s impeachment in August 2016, corruption scandals, which were already popping up before this event, have become even more prominent, especially resulting from the so-called “Car Wash” probe.. Plea-bargains involving CEOs, CFOs and employees of the largest Brazilian companies, such as Petrobras, the national oil company, and Odebrecht, Latin America’s largest construction conglomerate, have disrupted the entire political system. The former speaker of the Lower House, Representative Eduardo Cunha, who had a major role in President Rousseff’s impeachment, has been in jail since October and was in March sentenced to more than 15 years in prison for the crimes of money laundering, tax evasion, and passive corruption. On March 11, Justice Luiz Edson Fachin, of the Brazilian Supreme Court, authorized a corruption investigation against 8 ministers of President Michel Temer’s government, 3 state governors, 24 senators and 39 representatives, leading to a massive setback in President Temer’s discredited and unpopular government and his broad coalition. The huge workload needed only at the Supreme Court to examine and try all these cases has even led to the creation of a working group dedicated exclusively to speeding up those trials. The situation has so significantly affected its regular activities that the Supreme Court may change precedent. In May, it will decide whether some of those cases should be removed from its jurisdiction. Justice Luís Roberto Barroso has, for example, already indicated that the constitutional text should be interpreted in a more restrictive way, thereby excluding some of those elected officials from standing trial in front of the Court.
The political environment has been poisoned by these events. On the one hand, there is the public uproar calling for a change in the political system and, more immediately, the conviction and imprisonment of those involved in corrupt practices. This seemingly indicates a more active social mobilization and, for many, a sign that, widespread corruption is at least finally being uncovered and tackled through institutional means. This would thus indicate institutional improvement. After all, as never before, prominent political figures and influential businessmen are being prosecuted and sentenced to prison. The judiciary, by the same token, is heading this movement and providing a long-awaited response to Brazilian society. Now, both at the federal and state levels, prosecutors and judges seem strongly involved in tackling this type of corruption, although relevant controversies arise when they overlook procedural guarantees imposed for such a purpose.
Yet, on the other hand, this incident also reveals a deep distrust in politics, which is a likely environment for the ascendance of populism. Curiously enough, this antipolitical sentiment and legitimacy crisis has catalyzed the political system to advance a constitutional agenda that is aimed at gutting the social benefits set out in the 1988 Constitution. This may signal a defense mechanism of the political system against its very dire situation. Certainly, the fact that Brazil has a Vice-President who became President in such a turbulent impeachment procedure plays a role. President Temer always says that despite being unpopular, he wishes to be remembered as the one who has advanced long-awaited structural reforms. He feels less checked by popular pressure since he was not originally elected as President, which, however, raises serious questions on the legitimacy of those reforms. But, structurally speaking, the main reason why these changes are gaining momentum lies in the weakening of the opposition following the impeachment. Never before since democratization have the conservative parties been in such a favorable position to advance their agenda and attack some of the democratic gains of the Constituent Assembly of 1987/1988. The paradox thus lies in the following: while corruption is being uncovered and the political system is being dismantled, this has paved the way for the rise of an antipolitical sentiment that fends off any effective opposition to those constitutional changes.
It is in such a context that the judiciary has gained strength as a prominent player. In a sense, Ingeborg Maus’s concept of the “Judiciary as the Superego of the Society” fits contemporary reality in Brazil. More than ever, the judiciary seems to be exerting a moral duty of salvation in such a stormy context, which contradicts what should be expected of a healthy system of checks and balances. Brazil will overcome this turbulent moment, but when “constitutional dismemberments” gather pace amid a sinking political system, widespread anti-political sentiment, and a rising judiciary acting as the “superego of society,” this is certainly not a good omen. Populism is knocking on the door.
Suggested citation: Juliano Zaiden Benvindo, “Constitutional Dismemberment” and Political Crisis in Brazil: Populism in Sight? Int’l J. Const. L. Blog, May 6, 2017, at: http://www.iconnectblog.com/2017/05/constitutional-dismemberment-and-political-crisis-in-brazil-populism-in-sight/
 Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke Law Journal 364, 394 (1995).
 Albert, Richard, Constitutional Amendment and Dismemberment 3 (November 25, 2016). Yale Journal of International Law, Vol. 43, 2018 Forthcoming; Available at SSRN: https://ssrn.com/abstract=2875931
 Albert, supra Note 2, at 11-40.
 See 1946 Japanese Constitution, art. 9.
 I discuss more deeply the participation of civil society in Brazilian constitutionalism in: Juliano Zaiden Benvindo, The Forgotten People in Brazilian Constitutionalism: Revisiting Behavior Strategic Analyses of Regime Transitions, Int’l J. Const. L, 2017 (forthcoming).
 See Leonardo Augusto de Andrade Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 145-247 (2012).
 See Brazilian Constitution, art. 6-11; 193-232.
 See Barbosa, supra note 6.
 Ingeborg Maus, Justiz als gesellschaftliches Über-Ich: Zur Funktion von Rechtsprechung in der vaterlosen Gesellschaft, in Sturtz der Göter? 121–149 (Werner Faulstich & Gunter E. Grimm eds., 2008).