The Brazilian Constitutional Amendment Rate: A Culture of Change?

—Juliano Zaiden Benvindo, University of Brasília

Tom Ginsburg and James Melton, in their fascinating article “Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, raise a powerful argument against the well-worn claim that the number of amendments is directly related to the flexibility of constitutions.[1] Their argument, although methodologically complex, is clear: culture plays a more relevant role in explaining why constitutions formally change than institutional thresholds.[2]

Among the many examples they bring, Brazil stands out as an “ultra flexible”[3] country where “the stakes of amendments are lower and so cultural resistance to amendment is less than in societies where it is infrequent.”[4] Indeed, in July, Brazil passed its ninety-second constitutional amendment. Since the Brazilian constitution dates from October 1988, this gives a rate of more than three a year despite a relatively rigid constitutional framework requiring approval by three-fifths of the members of each chamber.[5]

In a country where formal constitutional changes are so intensive, it is reasonable to conclude that the constitution may not be that central a document.[6] Still, the number of amendments has soared during the most vivid years of democratic life and its target is the most legitimate, pluralist, and venerated constitutional text of Brazilian history. More intriguing, although this rate of amendments may astonish some foreign lawyers, the Brazilian constitution has proven particularly resilient against formal changes to its core framework, that is, to the system of government and the bill of rights. Therefore, ninety-two amendments in less than thirty years may sound like a lot, but it does not necessarily mean that Brazil is deeply unstable when it comes to its constitutional text. In fact, the contrary view seems more accurate.

An empirical analysis of their contents reveals that the vast majority of constitutional amendments cover subjects that are not related to the core of the constitution. In some circumstances, constitutional amendments, especially for a very comprehensive and detail-oriented constitution,[7] tackle questions that seem awkward in a comparative perspective. Examples are the authorization for municipalities to establish a contribution to finance the public lighting service,[8] the allocation of funds destined to irrigation,[9] the exclusion of the monopoly of the union to exploit radioisotopes,[10] or even a monthly pension for rubber tappers.[11] Naturally, some constitutional changes have had a great impact on the system of government, like the possibility of reelection for a single subsequent term for presidents, governors and mayors,[12] a more restricted rule for presidents to adopt provisional measures[13](a type of executive ordinance with the force of law for urgent and necessary matters),[14] or, somewhat indirectly, an administrative reform following the liberal trend of the nineties,[15] but these are rare. Moreover, when it comes to individual rights and guarantees, federalism, universal suffrage, and separation of powers, the constitution forbids any proposal for constitutional amendments, thereby treating those subjects as petrified or unamendable clauses.[16] No formal change has taken place on these subjects, and even social rights – which are not included in this exception and are very broadly provided for in the constitutional text[17] – have not experienced formal substantial changes.

In addition, it has proven to be quite difficult to amend the constitution when the subject is sensitive, and this has been true since democratization. This is not because there has been no interest in radically changing core elements of the constitution. In fact, one of the side-effects of the democratic and pluralistic moment of the Brazilian Constituent Assembly in 1987 and 1988 – a real turning-point in Brazilian history – has been a steady attempt of some members of the political elite to overhaul the constitutional text in order to remove the “excesses” of that democratic moment.[18] Since the so-called “slow, gradual, and safe” political transition ended up being relatively uncontrolled, with distinct and opposing sectors of civil society exerting a significant role in the Constituent Assembly,[19] the constitutional text expressed much of this pluralism, but also its paradoxes and dilemmas.

The indeterminacy of the process of constitution-making[20] paved the way for an inevitable backlash. And, along with strategies to hinder the realization of constitutional promises and avoid reversals of some privileges and benefits of elite groups,[21] this came especially in attempts to create new “fast-track avenues” for constitutional change that would circumvent the rigid rules for constitutional amendment. The so-called “constitutional revisions” would, in many cases, soften those rules, establishing, for example, that instead of a super-majority of three-fifths, an absolute majority would be enough, normally followed by a popular referendum. Needless to say, these movements have raised many theoretical concerns about whether the secondary constituent power could amend the amendment rule by creating an alternative procedure for constitutional amendment.[22] There have been many proposals along these lines,[23] and they could open up space for structural reforms. But all have failed. No proposal for “constitutional revision” has ever succeeded, even when popular opinion seemed to support them.[24]

The resilience of the Brazilian constitution of 1988, despite – or even because of – its ninety-two amendments, is a notable achievement in Brazil’s turbulent history of constitutional replacements and political turmoil. It is certainly a permanent reminder of the struggles and battles to overcome the years of military rule, and it is a sign of the rise of a pluralist society continuously challenged by a “past” that is always there trying to retake the reins of history. Yet, this is still only the tip of the iceberg of a much more complex scenario where constitutionalism takes shape and changes through different means. The ninety-two constitutional amendments offer just a very partial story of how Brazilian constitutionalism has effectively changed, and certainly not the most impactful one.

Beneath words and sentences, although the gap between text and reality has narrowed over the years of democratic living, there is still a culture that stubbornly twists the constitution for its own ends. On the other hand, there is a vibrant culture that aims to make the pluralist and inclusive promise of the constitutional text a reality. If “something obviously changed in Brazil,”[25] and this has led to a rising culture for change over the years,[26] it has little to do with the constitutional text itself, whose core framework has been kept virtually untouched. Instead, Brazilian constitutionalism has deeply changed by virtue of a learning process that has gradually made the constitution a cornerstone of Brazilian democratic life, with back and forth movements typical of any complex interpretative document. This certainly proves that culture matters more than any institutional threshold, but it also shows that the constitution has much more to say than numbers, words and sentences can reveal.

Suggested citation: Juliano Zaiden Benvindo, The Brazilian Constitutional Amendment Rate: A Culture of Change?, Int’l J. Const. L. Blog, Aug. 10, 2016, at: http://www.iconnectblog.com/2016/08/the-brazilian-constitutional-amendment-rate-a-culture-of-change/

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[1] Tom Ginsburg & James Melton, Does the Constitutional Amendment Rule Matter at All? Amendments Cultures and the Challenges of Measuring Amendment Difficulty, 13 Int’l J. Const. L. 686 (2015).

[2] See id. at 687.

[3] See id. at 687.

[4] Id. at  689.

[5] According to Article 60, paragraph 2, of the Brazilian Constitution, “The proposal shall be discussed and voted upon in each house of the national congress, in two readings, and it shall be considered approved if it obtains in both readings, three-fifths of the votes of the respective members.”

[6] See Ginsburg & Melton, Int’l J. Const. L. 686, 700 (2015).

[7] The Brazilian Constitution of 1988 comprises 250 Articles in its main document, and 97 Articles in the Temporary Constitutional Provisions Act.

[8] Constitutional Amendment n. 39 (December 19, 2002).

[9] Constitutional Amendment n. 43 (April 15, 2004).

[10] Constitutional Amendment n. 49 (February 8, 2006).

[11] Constitutional Amendment n. 78 (May 14, 2014).

[12] Constitutional Amendment n. 16 (June 4, 1997).

[13] Constitutional Amendment n. 32 (September 11, 2001).

[14] See Art. 62.

[15] See, for instance, Constitutional Amendment n. 19 (June 4, 1998).

[16] See Art. 60, Paragraph 4.

[17] See Art. 6, 7, 8, 9, 10, 11, 196, 201, 203, 205, 215

[18] See Leonardo Augusto de Andrade Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 252  (Biblioteca Digital da Câmara dos Deputados, 2012).

[19] See Marcos Nobre, Indeterminação e Estabilidade: Os 20 Anos da Constituição Federal e as Tarefas da Pesquisa em Direito, 82 Novos Estudos CEBRAP (2008). Cristiano Paixão, Autonomia, Democracia e Poder Constituinte: Disputas Conceituais na Experiência Constitucional Brasileira (1964-2014), 43 Quaderni Fiorentini (2014). Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 145-251. 2012.

[20] See Cícero Araújo, O Processo Constituinte Brasileiro, a Transição e o Poder Constituinte, Lua Nova: Revista de Cultura e Política, 327, 378 (2013).

[21] See Andrei Koerner & Lígia Barros de Freitas, O Supremo na Constituinte e a Constituinte no Supremo, 88 Lua Nova (2013).

[22] See Yaniv Roznai, The Spectrum of Constitutional Amendment Powers (August 24, 2015). Forthcoming in a peer-review edited collection on ‘Comparative Constitutional Amendments’. Available at SSRN: http://ssrn.com/abstract=2649816

[23] See Proposals for Constitutional Amendment n. 554/1997, 157/2003, 193/2007, 341/2009; 384/2009. Another famous example, although it did not become a formal proposal for constitutional amendment, happened right after the Protests of June 2013, when President Dilma Roussef announced a “constitutional revision” to overhaul the political system, among other subjects. See Juliano Zaiden Benvindo, Brazilian Elections and Demonstrations of June 2013: The Rise of Conservatism?, Int’l J. Const. L. Blog, Nov. 1, 2014, available at: http://www.iconnectblog.com/2014/10/brazilian-elections-and-demonstrations-of-june-2013-the-rise-of-conservatism.

[24] Id.

[25] Ginsburg & Melton, supra, at 700.

[26] Id.