The Debate Over Unamendable Clauses in the Brazilian Constitutional Literature
Unamendability in Brazil is a concept that, at first sight, seems to require a less abstract approach as a mechanism to defend the Constitution from changes in its core principles.
The argument in favor of implicit unamendability, which, as Yaniv Roznai puts it, “entails the idea that even in the absence of explicit limitations on the amendment power, there are certain principles which are beyond the reach of the constitutional amender,”[1393] would apparently not have much reason to gain ground in Brazil due to a prosaic reason: The 1988 Brazilian Constitution sets out very vague and far-reaching unamendable provisions, which can effortlessly be used as the primary argument to strike down a constitutional amendment. Article 60, §4, of the 1988 Constitution defines that “no proposal of amendment shall be considered which is aimed at abolishing: I—the federative form of State; II—the direct, secret, universal and periodic vote; III—the separation of the Government Powers; IV—individual rights and guarantees.” Particularly for “individual rights and guarantees,” the doctrinal understanding is that it at least entails the whole Article 5 of the Constitution, which in its 78 clauses, is comprehensive enough to protect those principles normally associated with the concept of implicit unamendability.As a young democracy after 21 years of civil-military dictatorship, it sounds logical that, better than putting much faith in implicit unamendable clauses, those core principles should be entrenched in the constitutional text, easing thereby possible political tensions the Supreme Court could suffer to strike down a constitutional amendment. Brazil followed, in this regard, a similar path to Portugal’s, whose 1976 Constitution has one of world’s broadest set of unamendable clauses.[1394] The Portuguese Constitution features, in Article 288, 14 unamendable clauses, ranging from common explicit clauses such as “the republican form of government” and “universal, direct, secret, and periodical suffrage” to very unusual ones, such as “the existence of economic plans within the framework of a mixed economy” or “the rights of workers, workers committees, and trade unions.” Like the Brazilian Constitution, it was also the outcome of transition from a dictatorial period—the so-called “Estado Novo,” which ruled the country for 41 years and only ended with the Carnation Revolution in 1974,[1395] and was aimed at establishing a new democratic moment.[1396] Brazil’s Constitution inherited somehow the programmatic feature of the Portuguese Constitution, though in a more measured and less detail-oriented way.
One such contribution is the protection to the “rights, freedoms, and safeguards of the citizens” (Art. 288, c, of the Portuguese Constitution) and the “individual rights and guarantees” (Art. 60, §4, IV, of the Brazilian Constitution). It is worth noticing that this provision was absent in the previous Brazilian Constitutions, whose unamendable clauses limited to the protection of the republican federal form of government or the equal representation of the States in the Senate.[1397]It is natural that such comprehensive unamendable clauses would spark interesting debates over the legitimacy of the constituent power to impose limits on the sovereignty of the people to change the Constitution whenever they see fit. In a comparable manner, also in Brazil, the well-known clash between Madisonians and Jeffersonians on why and how the constitution should bind the future[1398] has had some resonance. As elsewhere, the argument that “without tying their own hands, the people will have no hands”[1399] has been central for Brazilian democracy. No wonder that this paradox has also extended to whom or which institution has the last say in setting the limits of the will of the people, a consequence that reflects on the rising role of Supreme Courts. If the people have limits to change the Constitution, how far can Supreme Courts go to exert control over their will? By explicitly laying down unamendable clauses in the Constitution, as is the case of Brazil, this endeavor has seemingly some backing by the original constituent power, but, even so, such general and broad clauses are ripe for divergent interpretations and for questions on whether the Supreme Court has overstepped the boundaries of its duty of protecting the Constitution.
Rodrigo Brandao, a professor of constitutional law at the State University of Rio de Janeiro, for example, brings some relevant insights about this conflict between the limits of the secondary constituent power[1400] and the will of people.
According to him, there are serious difficulties in democratically justifying such limits in view of the supermajorities needed to pass a constitutional amendment, in particular when it comes to defend privileges some minorities have entrenched in the constitutional text as unamendable (he calls it the “constitutional entrenchment of privileges”).[1401] The second point is that those “constitutional principles are marked by high semantic abstraction and moral density,”[1402] which not only largely extends the judge’s freedom of interpretation but also may clash with the moral disagreement of any pluralistic society (the so-called countermajoritarian difficulty).[1403] In any case— he argues—the democratic feature of the Constituent Assembly of 1987-1988[1404] created a legitimate barrier for the secondary constituent power as long as, particularly in the 1988 Brazilian Constitution, the rather flexible framework for constitutional amendments (the threshold is the approval of 3/5 of the members of the two Houses in two readings)[1405] and the absence of any plebiscitary mechanism has “a lower deliberative quality than the one presented at the National Constituent Assembly.”[1406] He defends, therefore, a more proactive role of the Supreme Court in exerting the judicial review of constitutional amendments, particularly in view of the “Brazilian constitutional model and experience,” the risk of National Congress or the Executive branch “to incorporate, in practice, the popular sovereignty,” and, finally, “essential values such as human dignity would be left to the adventurism of political groups.”[1407]This favorable point of view of the Supreme Court in defending the Constitution from the “adventurism” of political groups that could undermine the democratic values entrenched by the Constituent Assembly is, however, not consensual. Scholars who have historically been placed in the very conservative spectrum of constitutional law, and, in particular, those who had, in the past, contributed with some legal justifications for the civil-military dictatorship (1964-1985) could not easily cope with the very concept of unamendability.
One such scholar is Manoel Goncalves Ferreira Filho, a professor of constitutional law at the University of Sao Paulo who is famous, among others, for writing the book “A Democracia Possivel”[1408] (The Possible Democracy)—a clear attempt to justify the authoritarian military government. In 1995, he wrote the article titled “Significa^ao e Alcance das ‘Clausulas Petreas’” (Meaning and Reach of Petrous Clauses), in which he argues that those unamendable provisions do not have the power to “petrify” the legal system.[1409] His argument is structured in the following premises: (a) the legal doctrine of the constituent power is unrealistic in view of the many exceptional ways constitutions have been drafted in history[1410]; (b) “constitutions do not follow a social pact., but replace previous organizations., which are the ‘material constitu- tions’”[1411]; (c) “there is no intrinsic superiority—derived from the democratic legitimacy—of those, the constituent-representatives, from those, the ordinary representatives[1412];” and (d) the constitution is the supreme law that the representatives of the people must respect, but “by reason of a convention... whose nature is not metaphysics.”[1413] He concludes that “if the original constituent power cannot give a solid basis for the unamendable clauses, much less can do so the derived power.”[1414]Yet, he, based on Carl Schmitt, contends that there is an essential core “that is out of reach by the power of reform,”[1415] the question lying in identifying which contents are part of this fundamental core, whose protection is nonetheless political. Therefore, in practical terms, those unamendable provisions are as such untouchable “as long as they are in force.”[1416] For Ferreira Filho, those unamendable provisions can be “modified or abolished,”[1417] an argument originating from the so-called “double revision thesis,” strongly advocated by the Portuguese constitutional scholar Jorge Miranda[1418] in light of all those extensive set of unamendable clauses inscribed in the 1976 Portuguese Constitution.
According to this thesis, in order to change an unamendable provision, it suffices to revoke or amend the constitutional norm that sets out the distinct hypotheses of unamendable provisions. For Miranda, these “are constitutional norms as any other and can be themselves subject of reform, with the inherent consequences.”[1419] Since those constitutional norms are themselves not among the hypotheses of unamendability, they could thereby be amended and revoked. For Ferreira Filho, moreover, any appeal to an abstract and implicit concept of unamendability to protect such provisions has no basis at all:This thesis is only founded on the argument that it would be a fraud to the Constitution to admit the suppression of the ‘petrous clause’. But this would stand if the Constitution had inscribed, among the ‘petrous clauses’, the procedure for constitutional change it enshrined... Otherwise, it is a gratuitous statement, or that it is only based on the appeal to implicit clauses, because these are up for grabs for all tastes.[1420]
In the case of the 1988 Brazilian Constitution, this would mean revoking any of those clauses of Article 60, §4, laying thereby the groundwork for amending, for instance, an individual right as set out in Article 5. He contends, moreover, that Article 60, §4 only forbids proposals of amendment that are aimed at “abolishing” any of those four clauses, not the ones aimed at modifying or regulating them.[1421] As would be the typical argument by someone who interpreted the Brazilian transition to democracy as a continuation of the so-called “revolutionary cycle” of the civil-military dictatorship,[1422] Ferreira Filho ends his paper by sustaining a very controversial argument. For him, since the 1988 Constitution was the outcome of a constitutional amendment to the 1967/69 Constitution (Constitutional Amendment n. 26/85),[1423] those unamendable provisions are, in fact, not originally from the primary constituent power, but from the secondary constituent power: “the ‘petrous clauses’ in force came out from a constitutional reform and are the work of the derived constituent power.
What the derived power establishes, the derived power can change.”[1424] Of course, based on these arguments, there would be no reason whatsoever to authorize the Supreme Court to exert the judicial review of constitutional amendments. In the end, after all, the unamendable provisions (in the Brazilian case, according to Ferreira Filho, not even a product of the primary constituent power, like the whole 1988 Constitution) are no different from any other constitutional provision. And, if there exists any obstacle, there is no prohibition to change Article 60, §4, which would then authorize changes in any of those four unamendable clauses.Virgllio Afonso da Silva, also a professor at the University of Sao Paulo, provided a very direct argument against Ferreira Filho’s main claims. For him, even though it sounds logical that, once revoked or modified Article 60, §4, those unamendable provisions would lose this quality, Ferreira Filho’s thesis is “weak.”[1425] What is beneath that claim, according to Silva, is nothing other than the non-acceptance of the so-called implicit limits.[1426] His defense of the existence of implicit limits lies in the premise that “if a competence derives from a higher authority, it seems logical that its limits can be modified only by this higher authority, but never by the derived authority.”[1427] Furthermore, Ferreira Filho’s claim that the 1988 Constitution is the result of a simple constitutional amendment to the prior Constitution, and, as such, a Constitution drafted by the secondary constituent power does not stand up to scrutiny. As he clearly points out: “this change to the constitution from 1969—by means of which a new constitution was created— cannot be understood as mere product of a constitutional amendment, but as a political solution in order to break with the illegitimate constitutional order of that time.”[1428] Virgllio Afonso da Silva shares the understanding of many other scholars[1429] who contend that very moment was indeed a rupture with the past, and thereby there is no other possible conclusion than calling that amendment an “act of usurpation,”[1430] because, logically speaking, that amendment could not “convene an Assembly to destroy the constitution that should be amended.”[1431]
Therefore, in contrast to those who defend the “double revision thesis,” most Brazilian constitutional scholars have sustained that the rules regulating the procedure for constitutional amendment cannot be modified in a way that would make it more flexible.[1432] The same is true for Article 60, §4, since it also imposes limits on the secondary constituent power. Despite that, Brazil has a long history of attempts to soften the rules for constitutional amendment through the so-called “constitutional revisions,”[1433] aimed at reforming a specific subject, such as the political system, the tax system, or any other disputed topic that would demand a massive support of Congress to have it passed. Unlike the general provision regulating the procedure for constitutional amendment, these “constitutional revisions” would set up a temporary and particular fast-track procedure—normally requiring only the absolute majority of the members of Congress in a unicameral session—to make changes on a set of specific provisions of the constitutional text. The Proposals for Constitutional Amendment with such a purpose, nonetheless, have all failed up until now,[1434] and, though the Brazilian Constitution has already been amended more than one hundred times, those changes have been the outcome of the regular procedure for constitutional amendment as originally set out in the 1988 Constitution. This signals that constitutional thresholds and institutional constraints may have so far worked quite well against proposals aimed at breaching the precommitments undertaken by the primary constituent power.[1435] If this outcome has to do with the theory of implicit unamendable clauses, it is hard to conclude, but some scholars have clearly pointed out that the secondary constituent power has no
legitimacy to make such changes, in particular, in view of the overly democratic moment of the Constituent Assembly of 1988.[1436]
More controversial, though, is the extent of those unamendable provisions in the Brazilian constitutionalism. For example, based on the social core of the Constitution, part of the constitutional literature has long contended[1437] that also the extensive list of social rights—and not merely the individual rights and guarantees, as set out in Article 60, §4, IV—is also protected by unamendability. Ingo Wolfgang Sarlet, a constitutional professor at the Pontifical Catholic University of Rio Grande do Sul, may be the one who more widely advanced such a thesis. In a paper titled Os Direitos Fundamentais Sociais como “Clausulas Petreas” (The Social Fundamental Rights as “Petrous Clauses”), he claims that the 1988 Constitution visibly enshrines the premise of Brazil being not only democratic, but also a social welfare state, as defined in Articles 1 and 3.[1438] “There is no doubt that the social welfare state principle as well as the social fundamental rights integrate the essential elements, that is, the identity of our Constitution.” As a consequence— he says—those “social rights (as well as the fundamental principles) could be regarded—even though not expressly set out in the list of unamendable clauses—as authentic implicit material limits on constitutional reform.”[1439]
Indeed, this expansive understanding of the unamendable clauses of the Brazilian Constitution has recently gained strength during the discussion of the Constitutional Amendment n. 95/2016,[1440] which curbs annual growth of public spending by adjusting it only to the previous year’s inflation rate during a period of twenty years (though this methodology could be revised after a period of ten years). The so-called “new fiscal regime” sparked various controversies among scholars and policymakers. Some praised this measure as it would restore confidence in Brazil that would translate into sustainable public policies.[1441] Others, however, have argued that such a constitutional amendment would strongly affect the social rights, especially health, education, and social welfare, while not helping to restore economic growth.[1442] Marcus Faro de Castro, a professor of economic law at the University of Brasilia, argued that this proposal adopts macroeconomic policies that “in practice... become political expediencies as far as they are perceived as effective by those who benefit from them, and not because they demonstrably embody ideals of justice that society aims to achieve.”[1443] The Economist, which acknowledged that “austerity could have distributional consequences” and “has been a misguided approach in recent years,” pointed out that Brazil is a “special case” that may, however, justify it. But it did so not without first titling the article “there is more than one kind of economic mess to be in.”[1444]
Beneath this controversy lies the very discussion of the social core of the 1988 Brazilian Constitution as part of its identity, recalling Sarlet’s argument of the implicit unamendability of the social welfare principle enshrined in the constitutional text. According to this premise, the “new fiscal regime” would clash with that implicit unamendable clause as long as this policy would evolve in a way that especially those sectors of society more in need would lose in the increasingly competitive share of the now fixed budgetary pie. It is no wonder that scholars have stressed how this amendment will signal a “change in the Brazilian social contract” as it was originally drafted in the 1988 Constitution, a document originated from broad social participation and wherein social rights have best represented the marriage of that constitutional moment with a new democratic impetus after years of dictatorship.[1445] Drawing from the Brazilian experience, Richard Albert, for example, also interprets this amendment as a violation of the social core of the Constitution, qualifying it to what he calls “constitutional dismemberment”, that is, a change that “seeks deliberately to alter the fundamental rights, structure, or identity of the constitution with recourse to the ordinary rules of constitutional amendment.”[1446] The very argument that such a modification could affect the identity of the Constitution connects to something more structural than simply the explicit unamendable clauses set out in the Brazilian constitutional text: it would radically alter the foundations of the Brazilian Constitution:
The impact of this Public Spending Cap Amendment on the next generation’s enjoyment of social rights in Brazil, combined with how directly it undermines the Constitution’s founding and continuing commitment to social rights, suggests that it may be more than a simple amendment. Its purposes and effect suggest that it should instead be called a constitutional dismemberment.[1447]
As seen, the debate over the unamendable clauses in Brazil goes far beyond one could first expect in view of the open, far-reaching, and vague contents of the four so-called “petrous clauses” of Article 60, §4 of the 1988 Brazilian Constitution. The simple fact that the Constitution has embraced a large set of hypotheses in order to protect the Constitution from changes has not provided a much greater consensus in the constitutional literature. The arguments range from those who defend the so-called “double revision thesis” and even sustain that the 1988 Constitution is nothing other than a simple reform to the previous authoritarian 1967/1969 Constitution to those who extend unamendability to the very social core of the 1988 Constitution or interpret such changes as a clear “dismemberment” of the Constitution. Naturally, constitutional designers should be aware that enshrining principles as unamendable in the constitutional text is just that the tip of the iceberg of a much more complex array of strategies political actors can undertake to transform the constitutional order. The question thus lies in how institutions can better cope with such strategies and how, even in the context of open, vague and far-reaching explicit unamendable clauses, they should behave in view of the many possible interpretations for such clauses. Those explicit unamendable clauses may probably help, for instance, Supreme Courts by providing them with an immediate argument in the circumstance of striking down a constitutional amendment, but it would be naive to ignore the fact that the text itself is one of the many sources feeding constitutional interpretation. In constitutional democracies, it is expected that Supreme Courts undertake this role of protecting the constitution. Yet, like the argument itself of unamendable provisions—which, regardless whether they are explicit or implicit, raise serious disagreements—the judicial review of constitutional amendments is also controversial.
The next session will discuss how the Brazilian Supreme Court has managed such arguments and this particular role amid its rising presence in Brazilian democracy. Of particular interest is how the Supreme Court has interpreted the extension of the concept of “individual rights and guarantees” (Art. 60, §4, IV). Even though it has long ruled that its role of exerting the judicial review of constitutional amendments derives naturally from its role as guardian of the Constitution, it is worth noticing that it has gradually expanded the scope of this protection to reach a broader dimension of constitutional basic rights.
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