An Unconstitutional Constitutional Amendment? The Strange Case of the Postponement of the 2020 Brazilian Election

—Jairo Lima, Universidade Estadual do Norte do Paraná

Among the many impacts the COVID-19 epidemic has had on political and constitutional activity worldwide, the postponement or cancellation of elections has been one of the key issues. According to data from the Institute for Democracy and Electoral Assistance, an institution that monitors electoral processes in the world, between February 2 and July 5, 67 countries and territories decided to postpone elections that were planned at the national or subnational level.[1] In Latin America, for instance, Chile, which is facing a constituent process for a new Constitution, postponed the plebiscite that was supposed to be held on April 26 of this year.

In Brazil, municipal elections were scheduled to take place next October. However, because election campaigns necessarily involve crowding and personal contact, the Brazilian National Parliament decided on July 3 to postpone the elections until November 15, 2020 by means of a constitutional amendment (nº 107). The amendment was necessary because the dates of the elections are set by the Constitution: art. 29, II: “election of Mayor and Vice-Mayor must be held on the first Sunday of October of the year prior to the end of the term of those who must succeed”.

The major constitutional problem in the postponement of the elections by means of a constitutional amendment lies in the potential conflict with another constitutional provision that expressly prohibits changes in the electoral process without the law being passed at least within one year prior to the election date (art. 16).

Does this provision represent a substantive limit to the amending power in Brazil?

The Brazilian Constitution expressly lists several substantive limits to the amending power (art. 60, § 4º).[2] Among these, the prohibition of art. 16 is not specifically stated.  However, on March 8, 2006, constitutional amendment n. 52 was approved, which changed the form of party coalitions. Due to the absence of a 1-year gap between the amendment (March) and the elections (October), the Brazilian Supreme Court was called to decide on the constitutionality of that constitutional amendment[3] and it ruled that the amendment could not apply to the October 2006 elections.  According to the decision, because art. 16 is placed within Title II – of fundamental rights and guarantees, it represents an unamendable clause, since art. 60, § 4º, IV, includes individual rights and guarantees as unamendable clauses.

If we were to follow this precedent, we should conclude that postponing the 2020 elections to November was unconstitutional. Thus, we would be confronting an unconstitutional election. However, the adequate constitutional interpretation of this amendment is not limited to the 2006 precedent, but must also consider the degree of interference of the amending power over the unamendable clauses.

Unlike other jurisdictions that assume the absolute intangibility of such clauses,[4] in Brazil, the Constitution itself sets up a specific form of relationship between amendment and unamendable clause (art. 60, § 4º), as it says: “It will not be subject to deliberation the amendment proposal which tends to abolish (…)”. According to this statement, the ban on constitutional reform only targets attempts to eliminate an unamendable clause. It does not prohibit alteration, readjustment, targeting, increase and delimitation.

The STF has already accepted this point by holding that the protection that must be given to unamendable clauses only concerns its essential core, that is, a space smaller than the global sphere of the protected right.[5] Like a unicellular organism, between the nucleus and the membrane there is a legitimate space for constitutional amendments. The prohibition of art. 60, § 4º, therefore, concerns the abolition of the nucleus.

Declining to apply art. 16 exclusively for the 2020 elections in the face of the COVID-19 outbreak does not abolish this unamendable clause since the constitutional provision in question is still intact for future elections.  Furthermore, once the amendment is not the result of the self-interest of the ruling political group over the potential candidates, it seems plausible that the core value of art. 16 was not abolished. Thus, there is a guarantee that the 2020 municipal elections will take place without any constitutional defect in their postponement. This fact is particularly important since it is precisely the electoral process that democratically grounds the exercise of the power of elected officials.

Suggested citation: Jairo Lima, An Unconstitutional Constitutional Amendment? The Strange Case of the Postponement of the 2020 Brazilian Election, Int’l J. Const. L. Blog, July 11, 2020, at: http://www.iconnectblog.com/an-unconstitutional-constitutional-amendment-the-strange-case-of-the-postponement-of-the-2020-brazilian-election/

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[1] Global overview of COVID-19: Impact on elections

[2] These limits are: 1) Federative form of state; 2) direct, secret, universal, and periodic voting; 3) the division of Powers; 4) individual rights and guarantees.

[3] Case ADI 3685.

[4] The Constitution of Germany in art. 79 (3), for example, states that constitutional amendments “affecting” unamendable clauses or principles are inadmissible.

[5] Cases: ADI’s 883, 939, 2395 e 4425.