Introduction
Unamendability appears to be quite a contradictory concept in Latin America, where constitutional change has long been a natural feature of its many constitutionalisms. Though the rate among its countries varies strongly,[1368] and the pace of constitutional replacements waned in the last years,[1369] Latin America has long been portrayed as the region in the globe where the idea of changing the constitution, either by amending or replacing it, is a common pattern.[1370] As Detlef Nolte counted, “in the period between 1978 and 2010, 350 constitutional amendments have been passed in Latin America, and the annual rate of amendments has increased in most of the countries in the region
1Nolte and Schilling-Vacaflor (2012).
2Negretto (2012), pp. 752-753.
3Nolte and Schilling-Vacaflor (2012), p. 753. in the decade 2000-2009 compared to 1990.”[1371] In such a context, the prospect that any particular constitutional provision is not prone to amendment appears to be quite a challenge. Countries like Brazil and Mexico, in particular, where the amendment rate clearly places them among the champions in the world[1372] (Brazil has already amended its 1988 Constitution more than 100 times, while Mexico has surpassed the mark of 700 amendments to its 1917 Constitution),[1373] may interpret flexibility as a fundamental principle of its constitutional culture and a way of making their Constitutions more resilient to replacement. Other countries, such as Argentina, where for an amendment to pass a convention must be called,[1374] the very concept of amendment quite merges with that of revision, and such a rigidity could better explain why the 1853 Argentinean Constitution, as last revised in 1994, has since not been amended.
In this case, it is as if the very concept of unamendability, due to the rigidity of the Argentinean constitutional framework, has become a practical effect at least in the last 20 and few years. Other Latin American countries, in their turn, do not differ from the average amendment rate in the world. Indeed, as Gabriel Negretto argues, “the mean number of amendments is significantly higher in western Europe than in Latin America.”[1375]Unamendability is, therefore, a much more complex concept when confronted with the varying constitutional frameworks and cultures in Latin America. There is not a single pattern of how amendments are undertaken in the distinct countries in the region, some using this mechanism quite routinely, others practically avoiding it, and most using it in not very different ways from many other countries in the globe. It is no wonder that also the way courts have dealt with such a concept varies across the region. Unamendability tends to play a more visible role as a normative concept in countries where there is no unamendable clause in their constitutions or where the hypotheses for formal unamendability are not broad enough to reach distinct situations. In countries where unamendability is inscribed in the constitutional text and those provisions are vague, open, and far-reaching, there is, at least in principle, a formal barrier to such changes, so the appeal to unamendability as a normative and abstract concept, at first sight, seems less necessary. In both circumstances, the role of Supreme Courts in exerting judicial review of constitutional amendments, though not a condition,[1376] has become a more prominent feature of contemporary constitutionalism. Especially in countries where Supreme Courts have gained strength[1377] in the form of declaring the unconstitutionality of an amendment based on either explicit or implicit unamendability, the debate over the limits of the judiciary in some sensitive matters or the encroachment on political affairs has also gained momentum.
In Latin America, this symptom has been visibly felt as, first, supreme courts have become more powerful and socially trusted as a legitimate body for determining the boundaries of constitutional change,[1378] and, second, constitutionalism has itself been increasingly regarded as the needed counterpart of a successful democracy.In the comparative constitutional literature, whenever the debate over unamendability appears, the most cited and studied examples in Latin America come from Colombia, whose Constitutional Court has become the most acclaimed constitutional court in the region. Manuel Jose Cepeda Espinosa and David Landau, for instance, argue that “few if any courts in the world have had such a profound impact on different spheres of society and public policy.”[1379] One such impact is its far-reaching interpretation of the concept of unamendability even in the absence of any explicit unamendable provision in Colombia’s 1991 Constitution. The Colombian Constitutional Court has largely been praised, along with the Indian Supreme Court, as the one that has best developed the concept of unconstitutional constitutional amendments and has deployed it quite frequently.[1380] The so-called “substitution of the constitution doctrine” is based, among others, on the premise that “the power to amend the constitution does not imply the power to replace it, but only to modify it.”[1381] It would be then a way to “protect the constitutional democracy against a merely majoritarian account of democratic procedures.”[1382] The Constitutional Court has applied it to the distinct circumstances,[1383] the most famous of which is the decision that declared unconstitutional a call for a referendum allowing President Alvaro Uribe to be reelected for the third consecutive term.[1384] In that decision, the Court stated that such a reelection “would involve a breakdown of the constitutional order and would substitute various definite axes of the 1991 Constitution.”[1385] Its frequent application, however, has raised some controversy over the limits of the Constitutional Court, and scholars have argued that the Court has, in some circumstances, used it to defend vested interests[1386] or to strike down “ordinary exercises of the amendment power.”[1387]
Though Colombia is certainly a rich source, other countries in Latin America have also provided relevant contributions to the subject.
The comparative constitutional literature, however, has practically overlooked those other Latin American realities,[1388] following the natural trend of concentrating on the same countries whenever a new topic gains ground.[1389] This paper will explore how this debate has taken place in Brazil, a major player in Latin America whose constitutionalism has been rather underexplored, though unamendability has long been interpreted as a logical concept in its constitutionalism and been deployed in distinct cases by its Supreme Court. Brazil, as many countries in Latin America, is a young democracy whose past was marked by severe instabilities and constitutional changes. It has endured a civil- military dictatorship from 1964 to 1985 and, in 1988, a new democratic and largely participative Constitution was drafted, which boosted a reconfiguration of the relationship among the three branches. In particular, the Supreme Court has since gradually gained the presence as a central player not only in typical activities of constitutional courts, such as exerting the judicial review and serving as a check on the other powers, but also in sensitive political matters. If, in the period right after the transition to democracy, the STF was still a very self-restrained court, much having to do with the legacy of the military dictatorship,[1390] over the years of democratic life, its participation in defining the limits of activity of the other branches has become much more visible. The judicial review of constitutional amendments—and, thereby, the adoption of the very concept of unamendability—has been regarded as a natural consequence of its role as guardian of the Constitution.This paper will fill this gap by presenting a country which, unlike Colombia, has inscribed, in its 1988 Constitution, broad and far-reaching unamendable provisions. While Colombia, for example, had to build a new theoretical concept based on the premise that “the power to amend the constitution does not imply the power to replace it, but only to modify it,”[1391] Brazil could directly make reference to one of its unamendable provisions to strike down a constitutional amendment.
However, the fact that it had explicitly set out those unamendable clauses in the constitutional text has not prevented its Supreme Court and the constitutional literature from going much further in interpreting the scope of such amendments. The debate over the extension of those amendments, especially the one that protects “individual rights and guarantees,”[1392] has been remarkably fruitful. Moreover, the way the Supreme Court has dealt with such unamendable provisions has shown a gradual, though still self-restrained, behavior toward a more active role in shielding the Constitution from changes by parliament. This paper will explore how this debate has taken place in the Brazilian constitutional literature and how the Supreme Court has dealt with such a concept in its decisions. It will conclude by asking whether and to which extent, as a rising influential Supreme Court, unamendability may function as a general concept to expand its powers even further.2