The Brazilian Supreme Court and the Unamendable Clauses
The Brazilian Supreme Federal Court (STF) consolidated the understanding that it is part of its role as guardian of the Constitution to exert the judicial review of constitutional amendments in 1993, whose basis, however, was already presented in a previous case under the 1967/1969 Constitution.[1448] In a decision of October 1980,[1449] the STF had already introduced the argument that a proposal for constitutional amendment that violates an unamendable provision—in the case, one that aimed at abolishing the republic—could not even be subject of deliberation in Congress.
The case was dismissed, but the argument made explicit that not even a proposal for constitutional amendment could have its proceedings in Congress taken effect if it were in contradiction with the unamendable provisions. The thesis of a prior control over those acts, which the Court currently adopts, was as such introduced:In such cases, the unconstitutionality pertains to the very progress of the legislative proceedings, and this is because the Constitution does not want - in view of the seriousness of these deliberations, if consummated - that it even reaches deliberation, forbidding it explicitly. The unconstitutionality, if occurring, already exists before the bill or the proposal turns into law or constitutional amendment, because the very proceeding already frontally disrespects the Constitution.[1450]
Under the 1988 Constitution, a Direct Action of Unconstitutionality[1451] (ADI n. 820-3)[1452] aimed at questioning the constitutionality of an amendment whose purpose was to anticipate the plebiscite to define the system of government as set out in Article 2 of the Temporary Constitutional Provisions Act[1453] led the Court once again to adopt that argument. Though it was also dismissed, Justice Moreira Alves was very direct in defending the role of the Supreme Court for such a matter —and even went further by making a comparison with the United States.
He also argued in favor of the Supreme Court exerting this control in cases of not only explicit but also implicit unamendable provisions:There is no doubt that, in view of our constitutional system, this Court has the authority, in diffuse or centralized judicial review, to examine the constitutionality or not of a constitutional amendment, as it happens in the case, which is contested because it violates explicit and implicit unamendable clauses.
Contrary to what has taken place in the United States of America, where the Supreme Court - as the Attorney-General of the Union well registered and manifested - has hesitated to acknowledge questions of such a nature because it understands that it is often a political question, immune thereby to judicial review, in Brazil, the Supreme Federal Court has long sustained its authority for the judgment of such matters.
The Supreme Court would finally strike down a constitutional amendment in the Direct Action of Unconstitutionality n. 939 in 1993.[1454] The case originated from a constitutional amendment aimed at authorizing the Union to implement a tribute on financial transactions in the same year of its approval by Congress. The main claim was that the so-called IPMF (Imposto sobre Movimentagao ou Transmissao de Valores e de Creditos e Direitos de Natureza Financeira) would be in direct clash with Article 150, III, b, of the Constitution, which clearly forbids any member of the federation from “[collecting] tributes. in the same fiscal year in which the law which instituted or increased such tributes was published.”
Though not in Article 5 of the Constitution, the Supreme Court interpreted that this provision was also covered by the protection of unamendability since this is an individual right of the taxpayer. Such a broader interpretation derived from Article 5, §2, which says that “the rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party.” Its final ruling had the following content:
1.
A Constitutional amendment, emerging then from the derivative constituent power, when in violation of the original Constitution, can be declared unconstitutional by the Supreme Federal Court, whose essential role is to guard the Constitution [.]. 2. The constitutional Amendment n. 3, of March 3rd, 1993, which, in Article 2, authorized the Union to institute the IPMF, committed the vicious of unconstitutionality when it set out, in paragraph 2 of this Article, that, as regards to the tribute, Article 150, III, b and VI, of the Constitution does not apply, because, in doing so, it violated the following principles and immutable provisions (just them, not others): 1 - the principle of anteriority, which is an individual guarantee of taxpayers [.].The scope of the expression “individual rights and guarantees” among the hypotheses of unamendable clauses has been used as an important parameter to strike down distinct constitutional amendments, though the controversy on its reach has been permanent in the constitutional literature.[1455] The Supreme Court, however, has progressively, though sparingly, adopted the thesis that such protection extends to distinct circumstances that are not immediately derived from the vast list of individual rights and guarantees of Article 5 of the 1988 Constitution, as the precedent on ADI 939 demonstrates. In the last years, it has, for instance, applied this concept to hypotheses such as changes in (a) the maximum term for the members of the federation to pay their debts by virtue of court decisions (Art. 100)[1456]; (b) how the social contributions should be collected (Art. 195, §6)[1457]; (c) the principle of ex-post-facto electoral rule (Art. 16)[1458]; and (d) the social security contribution of federal, state and municipal public servants since a new tax would impose a discriminatory treatment among them.[1459]
The Court has not yet ruled on a possible extension of such concept to also embrace social rights, as part of the constitutional literature has defended,[1460] but, indirectly, one could argue it did so in a case related to women’s rights to maternity leave.[1461] A constitutional amendment which altered the social security system[1462] defined “the maximum limit for the amount of benefits of the general social security scheme referred to in Article 201 of the Federal Constitution” to R$ 1.200,00, adjustable...
“to the end that its real value is permanently maintained...”. The Brazilian Socialist Party (PSB) filed a Direct Action of Unconstitutionality[1463] arguing that that provision would affect the maternity leave since it would set a cap on the maximum amount a woman could earn during the exercise of her right. The Supreme Court argued that constitutional amendment should be then interpreted as if it did not apply to the maternity leave, because this would create a “discrimination the Constitution sought to combat when it prohibited the difference in wages, in the performance of duties or in hiring criteria based on sex (Art. 7, XXX, of the 1988 Constitution).”[1464] Yet, the final argument connected such a prohibition to the individual right to equality (Art. 5, I), which is an explicit unamendable clause: a “prohibition which, in essence, is an outcome of the principle of equal rights between men and women as set out in Article 5, I, of the Federal Constitution.”[1465]Noticeably, the concept of “individual rights and guarantees” set out in Article 60, §4, IV has been the primary source for the rising empowerment of the Brazilian Supreme Court to exert the judicial review of constitutional amendments. Though it has not yet directly applied it to circumstances that would allow for an even greater scope of that protection as to explicitly reach social rights, it has gradually laid the groundwork for a potential turning point in this direction. The Supreme Court has indeed stated that it should keep open the reach of the unamendable clauses in the best way to protect the “principles” of the Constitution, without, nonetheless, explaining much further what such “principles” would effectively entail. Justice
Gilmar Mendes, in this regard, for example, argued that “the effective content of ‘eternity guarantees’ can only be obtained through an hermeneutic effort”, which, as a matter of fact, is the “only activity [that] can reveal the constitutional principles which, though not expressly embraced by the unamendable clauses, carry a narrow link with the principles protected by them and thus covered by the immutability guarantee therefrom.”[1466] It is clear from such words that the Supreme Court has strategically left open the space for an even far-reaching scope of unamendable clauses, whose “principles”, grasped from a systematic interpretation of the constitutional text, can be both explicit or implicit. The question is, however, how far the Supreme Court can go in the protection of such core “principles” those unamendable provisions may embrace.
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