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What do “Constitutional Reforms” on the 30th Anniversary of the Brazilian Constitution Really Mean?

[Editor’s Note: This is the sixth and final entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Estefânia Maria de Queiroz Barboza, Federal University of Parana and International University Center (Uninter); Melina Girardi Fachin, Federal University of Parana

Like many contemporary democratic constitutions, the Brazilian Constitution establishes a normative framework for constitutional amendments seeking to follow the dynamics of social life. There is a fundamental aspect in the tension between the Constitution and time, which reproduces the one between democracy and constitutionalism: in order for the Constitution to last, does the amendment process need to change or to maintain the constitutional order?

On celebrating its 30th anniversary, the Brazilian Constitution has 99 amendments, a high rate in comparative perspective.

In such a scenario, the first difficult topic is to explain how a relatively rigid constitutional model, such as the Brazilian one, went so far in changing the Constitution. As a relatively rigid model, Brazilian Constitution has a specific and complex procedure to carry out those changes, requiring qualified majorities for its approval, which is much more difficult than the one for ordinary legislation. There are, in addition, circumstantial limits that refer to abnormal circumstances, when the Constitution cannot be amended, such as the state of emergency (in case of war, for example) or federal intervention.

Finally, there is still a barrier to parliamentary deliberation in certain subjects. These are the so-called unamendable or petrified clauses. Considering the substantive content of these provisions, Article 60, § 4 states that a proposal of amendment aiming to abolish the federative form of the State; the direct, secret, universal and periodic vote; the separation of powers; and individual rights and guarantees will not be a subject of deliberation.

All this rigidity and formality, restraining Parliament’s amending power, is justified in order to protect the hard-fought agreements embodied in the Constitution against the dangerous effect of opportunistic majorities. Such constraints are projected into the future in order to avoid contingent constitutional changes: allowing the adjustment of the Constitutional text as a living constitution, but at the same time, granting protection to fundamental constitutional choices that are the target of the legislative process of amendment.

From the arguments presented above it is clear that it was not the rigid model that changed, but the constitutional practice that allowed the modifications to occur.

The second point of difficult is that the answer to the aphoria between stability and change is not necessarily in the constitutional rules, but also, and especially, in the interpretation of constitutional language. Therefore, significant Constitutional reforms in past years came from informal processes that some scholars in Brazil would call constitutional mutation.

Theoretically, constitutional mutations are informal amendments to the Constitution, that is, changes to the meaning of constitutional provisions by informal means.

On the one hand, Brazilian constitutional practice would appear to have reservations about the idea of constitutional informal change, particularly because of the difficulty to control its constitutionality and because the judiciary would gain significant power. On the other hand, this argument loses strength given that interpretation was the source of major constitutional reforms in recent years in Brazil.

In this past 30 years, the Judiciary became, along with Congress, the protagonist of this debate. Not only from the interpretative point of view, but also because in Brazil the Supreme Court has already ruled that constitutional amendments can be unconstitutional. This power is justified as a mechanism to protect the constitution and constitutionalism, but it can also be deemed a way to diminish the power of Executive and Legislative branches. The strong judicial review of amendments, experienced in Brazil, could be an example to avoid abusive constitutionalism by means of the constitutional reform process as far as Congress is able to control the executive.

The ruling of the Brazilian Supreme Court (STF) in ADI 939/DF was a cornerstone to this understanding. The STF, in this action proposed by the National Confederation of Trade Workers against Complementary Law 77/93, decided that Article 2, paragraph 2, of the Constitutional Amendment n. 3 was unconstitutional, arguing that it was inconsistent with the federative principle as it promoted the breach of reciprocal immunity among the Union, states, the Federal District and municipalities. The case reinforced the ultra-strong model of judicial review adopted in Brazil that has fostered many controversies in the last few years.

The Brazilian National Parliament did not remain passive, but rather reacted to those decisions by passing other amendments. As a result, more constitutional reforms came into force. A good example is the Brazilian Parliament reaction to the Supreme Court decision on the Social Security Reform implemented by the 41st Amendment. The STF decided that the Constitution did not require public officials to contribute to social security (ADI 2189) and Parliament reacted by amending article 40 of the Constitution, sustaining that all public agents, including retired ones, were obliged to contribute.

As a reaction to judicial activism, there are some proposals of amendment to formally change the constitutional text in order to limit the power of judicial review, especially in the constitutional reform process. In this regard, we can refer to the Amendment Proposal nº 33 (PEC 33) that intended to modify the minimum number from six to nine votes of the Supreme Court Justices to rule on the unconstitutionality of a  statute,  and to submit the decision to the final approval of Parliament in case of constitutional amendments.

Another example is the 96th Amendment, that establishes that “sport practices that make use of animals are not considered cruel, since they are cultural manifestations, according to § 1 of art. 215 of this Federal Constitution deemed as an intangible asset that is part of the Brazilian cultural heritage, and must thereby be regulated by a specific law ensuring the welfare of the animals involved.” Eight months before, the Supreme Court decided that the law that regulated the vaquejada (a bull-toppling competition in Northeastern Brazil) was unconstitutional because there was an “intrinsic cruelty” applied to animals during that practice (ADI 4983).

Some would refer to such reactions as backlash; some would say that is an important tool for defending the rule of law and the Constitution itself. Giving the recent events in Brazil, it is hard to determine whether these changes preserved or altered core constitutional commitments. The difficulties noted show that in order to preserve the Constitutional core, the formal amendment process it is not the only and main source of constitutional change, but also the interpretation by the Brazilian Supreme Court.

Suggested citation: Estefânia Maria de Queiroz Barboza and Melina Girardi Fachin, What do “Constitutional Reforms” on the 30th Anniversary of the Brazilian Constitution Really Mean? Int’l J. Const. L. Blog, Oct. 17, 2018, at: http://www.iconnectblog.com/2018/10/what-do-constitutional-reforms-on-the-30th-anniversary-of-the-brazilian-constitution-really-mean/

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