[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.
Marcus André Melo offers a good analysis on this matter in his article on Mudança constitucional no Brasil. According to Melo (2013, 199), Brazil’s high rate of constitutional change can be explained by the choices made by the National Constituent Assembly, which, in his account, were: a detailed and comprehensive Constitution but with permissive rules of amendment. He also considers the role of the STF and a kind of judicial activism by the Court that was not contemplated at the time of the National Constituent Assembly, which Hirshl refers as the judicialization of mega-politics. Furthermore, he argues that in spite of the apparent flexibility of the Brazilian Constitution, one can properly identify constitutional change in two distinct moments: from 1995 to 1997, in the first half of Cardoso’s presidential term, and from 2008 to 2012 during Lula’s second presidential term and Dilma’s first presidential term thanks, especially, to the activism of the STF.
Nevertheless, most constitutional scholars in Brazil would not entirely agree with his account: they would agree on the fact that our Constitution is extensive but disagree on the fact that constitutional rules such as article 60 are permissive in terms of change. A general look at most Brazilian constitutional handbooks shows that procedures of change are fairly complex and strict, not permissive in the sense Melo affirms, regarding formal and material constraints. On the other hand, in comparison with other Latin American constitutions, Brazil’s is the third least rigid and, so far, has ninety-nine amendments.
The relationship between constitutional rigidity, procedures of change and amendment rates are, of course, controversial and become even more controversial when measurement or calculation is at stake. Ginsburg and Melton say that institutions are not the primary determinant of amendment rates i.e., one has to take into account the amendment culture.
One could say that amendment rules (such as article 60) are not permissive, yet the legislative branch is, or rather that there is a culture of permissiveness in the Congress (and not in the Constitution) in matters of constitutional change by means of amendments. By permissiveness of the legislature, we mean the weakening of the idea of constitutional rigidity whenever it is convenient for ordinary political reasons, even if propositions and approvals of constitutional amendments represent a threat to democratic order. Take as an example constitutional amendment (CA) # 95/2016, which limits for twenty years spending on public policies and social programs in order to release funds for interest payment, prioritizing the financial system rather than Brazilian citizens. An important aspect of constitutional rigidity is that the power to amend cannot be used against those principles that express the democratic-constitutional commitments taken by the popular constituent power.
It is worth mentioning that just a few amendments among all ninety-nine so far made changes that go to the core of the text and when they did, claims of unconstitutionality were raised and the dilemma of unconstitutional constitutional amendments took place as well as the possibility of judicial review by the STF. In our opinion, this is the case of CAs # 6/1995, 7/1995, 8/1995, 9/1995, 10/1996, 12/1996, 13/1996 and 19/1998 that redesigned the economic order by opening it to foreign capital at the same time the State took a step back from important economic strategic sectors; CA # 18/1998 that recognized members of states’ military police and fire fighters as part of military; CAs # 20/1998 and 41/2003 that redesigned our social security structure; and CA # 95/2016 which we have already mentioned above. A possible insight is that in those four cases of change (economic order, military police, social security order and limitation of public policies spending) ordinary and extraordinary political reasons were at stake and this pushed the legislature to make the changes despite amendment rules that are not particularly flexible.
It is also noteworthy that according to article 60, the president has a formal role in the constitutional amendment process, being able to propose amendments, an ability that had previously existed in the constitutions of 1937, 1967 and 1969, all enacted during authoritarian regimes.
From the viewpoint of STF activism, there are several landmark cases of constitutional change. We selected the following: First, MSs # 26602, 26603, 26604/2007, in which the STF ruled that a representative’s mandate belongs to his or her political party and not to him- or herself. Thus, changing one’s party means the loss of one’s mandate, in spite of the text of the Constitution (article 55), which enumerates the cases for loss of mandate and does not mentioning this reason. Second, ADI # 4277 and ADPF # 132/2010, in which the STF ruled that same sex union and marriage is under the protection of the Constitution in spite of the text of the Constitution (article 226, par. 3) that literally refers to the family as constituted by a man and woman. Finally, HC # 126292/2016, in which the STF ruled that requiring a defendant to start serving a sentence after an intermediate appellate court’s confirmation of a criminal conviction does not offend the constitutional principle of the defendant’s presumption of innocence in spite of the text of the Constitution (article 5, clause LVII), which says that no one will be found guilty until a definitive verdict by an independent and impartial tribunal. That is, a person charged with a criminal offense must be treated and considered as not having committed an offense until being found guilty by the last judicial instance.
In the case of the Brazilian Amnesty Law of 1979 (ADPF # 153/2010) despite the guiding principles of the Constitution such as human dignity, democracy and republicanism, the majority opinion of the Court ruled that the Law is constitutional even though Article 1, paragraph 1 grants amnesty to state agents that perpetrated human rights abuses such as murder, torture, and disappearances at the time of military dictatorship.
Our normative claim is that the Constitution is always in dispute and our descriptive claim is that constitutional changes replicated the struggle over the meaning of the Constitution that took place in the National Constituent Assembly of 1987-88. We identify –with more of less enthusiasm – both moments as ones of transformation. Paraphrasing Reva Siegel, transformation through preservation.
After the impeachment of President Dilma, at this very moment when most constitutional changes seem to seriously threaten our constitutional democracy, our diagnosis is not of enthusiasm but rather fear. Fear as a mechanism of turning the constitution into a weapon against itself.
Suggested citation: Vera Karam de Chueiri and Katya Kozicki, Constitutional Reforms in the Brazilian Constitution of 1988: Preservation Through Transformation? Int’l J. Const. L. Blog, Oct. 16, 2018, at: http://www.iconnectblog.com/2018/10/constitutional-reforms-in-the-brazilian-constitution-of-1988-preservation-through-transformation/
 Hirschl, Ran. The Judicialization of Mega‑Politics and the Rise of Political Courts. Annual Review of Political Science, vol.1, 2008, 93‑118
 Why equal protection no longer protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1113 (1997).