BRAZIL’S NEVER ENDING HUNGER FOR AMENDMENTS
Bruno Rezende Ferreira da Silva1
Abstract: The following article will introduce the constitutional reform process of the
Federative Republic of Brazil. To do so, the viability of reforming the constitutions on
contemporary constitutional law will be contextualized and once defined, Brazil’s
constitutional amendments will be analyzed so that this aspect of constitutional reality in
Brazil can be comprehended.
Key words: Constituent Power, Brazil’s Constitution, Constitutional reform, Constitutional
amendments rates
1. INTRODUCTION
The article’s main purpose is to show constitutional reality of Brazil in regards to the
viability of reformation.
In order to do so, it was necessary to both depict and question the Constitution’s
content in this sense, since the number of constitutional amendments since 1988 is very high.
Therefore, the article starts with a brief approach on Constituent Power, which is vital
to comprehend the process of changing a Constitution. Then, the many possibilities in which a
Constitution can be formally reformed will be explained, as well as its limitations. Again, it’s
essential to point out that the main point will be Brazil’s Constitution, although the assay can
be relevant to others.
Once the process on how Brazil’s Constitution can be reformed (or amended) is
comprehended, it’s possible to question the formal amendment’s high rates, which have been
experienced by the Constitution. Ninety six constitutional amendments (either reform or
revision nature) were accounted until October 2015. At this point, an attempt based on Donald
Lutz’s empirical work frame will be illustrated in order to identify the causes and effects of
this scenario.
1 Law graduate by the Universidade Federal do Estado do Rio de Janeiro – UNIRIO. Postgraduate in Civil
Procedure Law by Universidade Cândido Mendes UCAM. Master’s student in Public Law and Social
Evolution by PPGD-UNESA/RJ. Member of the NÚCLEO DE ESTUDOS SOBRE DIREITO, CIDADANIA,
PROCESSO E DISCURSO.
2. CONSTITUENT POWER – THE GENESIS OF CONSTITUTION AND THE
VIABILITY OF REFORMATION
It’s impossible to fathom a democratic order on the west part of the world without a
Constitution, and that statement also applies to Brazil. In 1988, after a period of over two
decades under military dictatorship, the process of establishing democracy again began with
the constituent assembly, followed by the creation of the Constitution of October 5th 1988.
This assay does not mean to extend on Constituent Power, but some excerpts are necessary to
for its own coherence.
So, the departing point is that the theory of constituent power is also a theory on power
legitimacy. And before 1988, Brazil suffered from lack of that legitimacy.
It’s important to note that the idea of constituent power is different from its theory.
Every society establishes the founding elements of its own organization through its
constituent power, whether or not theorized. In this sense, it’s possible to identify constituent
power in such societies as depicted by Malinowski in “Crime and custom in savage society”,
although there’s no written Constitution made by a theorized and originating Constituent
Power.
Joaquim José Gomes Canotilho affirms based on Sieyès’ theory of constituent Power
that it simultaneously “disrupts and restores constitution” ( CANOTILHO: 2003, 73). It’s
disruptive because it breaks free from what was established before. Brazil wrote off the ruling
military dictatorship in 1964, just as the French revolution cut ties with the absolutist
Monarchy. And it’s also restoring, since once the ruling power is abolished, there’s a need to
rebuild legal and political order.
Invariably, this rebuilding process goes through reinstalling a new political order
through Constitution.
Constituent Power, while rightfully exercised and securitized by the people is what
establishes a Constitution. There’s no space in this article to analyze the many procedure
possibilities in which this can happen. Jon Elster talks about “constitutionalism waves” and is
quoted on saying that he won’t discuss about Latin American for considering himself
uneducated to do so. However, even though 1988’s Constitution was not featured, it could
still be included to fit right in his descriptive logical sequence. From his work, it’s important
to note the excerpt in which he says fitting to both Philadelphia and Paris (regarding the
American and French Revolutions respectively): “Almost by definition the old regime is a
part of the problem the constituent meeting is convened to settle” (ELSTER: 2009, 20).
So, while settling the issue and establishing constitutional order, the action of this
Original Constituent Power is considered as primarily political. This theoretical leap forward
is vital so the present article can be understood within its own space limitations. It’s also
important to point out one more issue before going into Constituent Power in a primarily legal
notion. Although original, the Constituent Power of political nature can’t be exercised in a
historical and cultural gap. Neither did it happen for the United States, nor France, nor Brazil.
There are limits in which it can’t be rightfully prosecuted – as in freedom and equality
(CANOTILHO: 2003, 66). It’s crucial to note that this view is not the same as the one
originally endorsed by Sieyès in “Qu’estceleTiersÉtat?”. So, considering the Original
Constituent Power limitations, it becomes clear that the limits of Constituted Power also need
to be understood.
At this point, the discussion moves towards the possibility of reforming a rightfully
active Constitution as well as what is considered as a condition for its sustenance and proper
functioning throughout the years. The Constitution’s ability to adapt is vital, but a series of
requirements need to be noted when considering reforming it. Besides, the volume of
modifications may have unwanted outcomes, as it will be analyzed later.
As far as this article concerns, the main point in regards Constituent Power is that it is
part of a national legal system placed by the ruling power before the Original Constituent
Power.
And that is how Constituent Power can be perceived as an useful and effective
instrument to both change and adapt the constitutional system in a corrective manner. The
way it finds itself limited by the constitutional dictations placed by Original Constituent
Power. In this article’s next passage, the way in which Constituent Power is depicted on
Brazil’s 1988 Constitution will be analyzed, as well as some other relevant issues.
Finally, it’s important to stress that constitutional immutability is incompatible with
the everyday life. Any society is complex in different levels and mutates so constantly that to
think it could be regulated by laws set in a particular time event would be a paradox. This
article proposes to analyze especially Brazil’s formal Constitution changes, leaving out
informal changes, which depending on the approach given, can be considered more important
than the first (DUARTE e VIEIRA: 2005, 5). But that’s not the case for this article’s purpose.
The idea of assured authenticity remains permanently present and enforced by the possibility
of reform by Constituted Power.
3. BRAZIL’S CONSTITUTION REFORM AS SUPPORTED BY 1988’S CONSTITUTION
The Constitution reform is especially relevant when considering that constitutions
have (or should have) the ability of establishing itself. Its modification process should be
more difficult when compared to just editing a simple law. And so, it’s considered that this
topic should only be featured as constitutional inflexibility is noticed, as it happens in Brazil.
So now, a terminological elucidation is necessary. The term “reform” should be
comprehended as it accommodates two distinct events in Brazil’s reality, which are
“amendment” and “revision”. Both will be enlightened as follows.
3.1 THE FORMAL LIMITATIONS OF REFORMING POWER
In this portion of the article, Title IV, Section VIII, Subsection II of the 1988
Constitution of the Federative Republic of Brazil (henceforth referred as CRFB) will be
approached, addressing “from amendments to Constitution”.
It’s necessary to note article art. 60, I, II, III, §§ 2nd, 3rd e 5th from CRFB in order to
analyze formal or procedural limitations. These items address relevant issues in regards to
reform initiative, to the responsible office and the indispensible formal requirements in order
to achieve final approval of the proposed amendment.
The initiative in order to amend CRFB is private and the above mentioned items are
coexistent. As in if this initiative does not result in any of the three scenarios in which the
CRFB predicts, we’ll be facing a subjective formal flaw which will culminate on the
amendment unconstitutionality. That’s why items I, II and II from art. 60 textually and
respectively foresees that the initiative to reform CRFB should be “constituted by at least 1/3
of the members from the Chamber of Deputies or Federal Senate”; “the President of
Republic” or “more than half of the Federation’s Legislative Chamber, each party expressed
by the majority of it’s members.”
The National Congress is constituted by the Chamber of Deputies and the Federal
Senate, also being the office responsible for prosecuting an amendment to CRFB.
The formal requirements in order to approve a constitutional amendment are
mentioned on CRBF’s art. 60 §2nd, which predicts that it’s discussed and voted by both
Chamber of Deputies and the Federal Senate in two different rounds. Besides, its approval
rate should be 3/5 of each house of the National Congress. That 3/5 rate is based on the total
amount of members and not only accounting the ones present in each of the two rounds2.
Another formal obligation noted in CFRB’s art.60, §3rd addresses on enacting
constitutional amendment. It has to be done by both Chamber of Deputies and the Senate with
its respective number of order. At this point, it’s important to take notice that there’s no way
to predict presidential approval or veto. Then, after voting and approving the constitutional
amendment project by both Congress houses, in two rounds and having at least a 3/5 rate of
voting members, it can forwarded to enacting. Finally, the Congress is officially able to
publish the constitutional amendment.
The last note in regards to legal requirements can be found on CRFB’s art.60, §5th
which predicts a hypothesis for objecting the appraisal of constitutional amendment proposal.
Such objection occurs whenever an amendment proposal is rejected or impaired, in the sense
that its content can’t be introduced or commented in the same legislative session3.
3.2 INCIDENTAL LIMITS OF REFORMING POWER
The incidental limits are addressed on CRFB’s art. 60, §1st and consubstantiate a
prediction made by the Original Constituent in which the Constitution cannot be amended
during circumstances which expresses institutional irregularities. The circumstances that
prevent the Constitution from being altered are: federal intervention, state of defense; and
state of emergency.
Federal intervention in one of the member States or on the Federal District can only
happen in extraordinary circumstances in one of the exhaustively predicted hypothesis on
CRFB’s art. 34, such as to maintain national integrity or to ensure free exercise of any of the 3
Powers in the Federation’s units. What’s interesting to notice about federal intervention is that
the Union serves a certain State in the name of the Federation. Being so, it is the same as to
2
Here, it’s still possible to classify the CRFB as an inflexible Constitution, considering that its modification
process is much more complex in comparison to creating an ordinary legislation. An ordinary Law has a much
broader initiative, as well as being possible to popular initiative, as long as the constitutional requirements are
fulfilled. Also, a law bill is analyzed in one of the National Congress’ houses and reviewed by the other in a
single round for each. Besides, the approval rating for ordinary laws is based on relative majority – the
majority of congressmen in session from each house, as long as the absolute majority is present. Noted in
CRFB articles 47, 59 and 65.
3
The ordinary legislative session is a period of normal activity in the National Congress, taking place yearly on
february 2nd to July 17th and August 1st to december 22nd.
affirm that it’d be like all of the other States collectively intervening to settle a certain
Federation irregularity .
A state of defense is determined by the President in order to preserve or promptly
reestablish public order or social peace in restricted and determined regions endangered by
severe and imminent institutional instability or in locations impacted by natural disasters of
major proportions. State of defense is addressed on CRFB’s art. 136.
A state of emergency is determined by the President when authorized by National
Congress, in case of severe commotion due to situations of national repercussion or when
state of defense is proven ineffective or in cases of declaring war or armed retaliation to
foreign countries. State of emergency is addressed on CRFB’s art. 137.
3.3. REFORMING POWER MATERIAL LIMITATIONS
These limitations addresses issues which the Original Constituent Power found
intangible and so, remained out of the possibility of being reformed by Constituted Power.
These intangible clauses are mentioned on CRFB’s art. 60, §4, which says the
following cannot be deliberating topics for an amendment that aims to dissolve: the Estate’s
federative form; periodical, universal, secret and direct voting system; the separation of the 3
Powers; individual rights and warrants.
It’s interesting to point out that the excerpt mentions “aims to dissolve”. A large part
of authors have noted this as an indicator that – and by option I restrict individual rights
debates – there can be a proposal that restrains determined individual rights, as long as it’s
essential nucleus is preserved. Being so, such right wouldn’t be abrogated, but it could be
restrained. This is a difficult discussion that cannot be fully addressed in this article, mainly
because it would be necessary to consider the thesis of prohibition to social regression.
3.4 REVISION
The previous analysis on CRFB’s art. 60 had the amendment as its main topic. The
analyzed limitations also consider the revision, which is predicted on CRFB’s Transitory
Constitutional Disposition Act and will be now explained. Although, only the description on
how the revision is performed and how it is predicted on Constitution will be addressed,
without going into how it was created or how it should have been done.
CBRF predicts that the constitutional revision in Brazil should happen five years after
the Constitution’s enactment and its approval rating would consist on the majority of the
National Congress in a single session. As one can see, it’s a much simpler procedure when
compared to reforming an amendment. The revision could only be done once and it would be
restricted to the material limitations forementioned for also being expressed by Constituted
Power. The Federal Supreme Court, with reporting by minister Néri da Silveira, has
manifested in that sense on ADI 981-MC.
Six Constitutional Revision Amendments have been approved and that mechanism has
had its effectiveness and applicability exhausted, leaving the Constitutional Amendment
predicted on CRFB’s art 60 as the only resource.
3.6 DOUBLE REFORM THESIS
This thesis aims to question the existence of absolute limitations as presented by the
previous item as “Reforming Power material limitations”. To do so, at first instance, a reform
on the constitutional script that focuses on the reform regulation would have to take place.
Then, once the forementioned limitations are updated, a second reform would be presented
according to the new constitutional reality. That way, having this double reform in check,
there would be the possibility to surpass the regulations that on given time, could be
considered as intangible.
There are both critics and supporters of this thesis. There’s no possibility of defending
it without misrepresenting the synthesis of the founding document of a rightfully national
order established by the Original Constituent Power, an opinion that I share with Canotilho
(2003, 1067-1069). As it’s been presented, Constituted Power is limited by Constituent Power
and to surpass these limitations means to go against Constitution, even if the double reform
strategy is used (or double revision as noted by Canotilho).
3.6 HUMAN RIGHTS INTERNATIONAL ACCORDS
This topic is made present to highlight CRFB’s art. 5, §3rd, which predicts that
“international accords and conventions on human rights, approved by each National Congress
house, in two rounds, by at least a 3/5 rating of the respecting voting members, will be
equivalent to constitutional amendments”.
Many issues that would escape from this article’s main objective could be debated
considering this excerpt, but what’s important to comprehend is that no formal alteration on
the Constitution can come out of it and that is the point relevant to us.
4. THE NUMBER OF AMENDMENTS
Today, the Constitution of 1988 has 97 constitutional amendments, with six approved
revisions included. In order to discuss the issue that’s about to be presented, these six revision
amendments will be left out, and we will only consider the 91 “ordinary” amendments. This is
a methodological choice rather than casual, having in mind that the revision amendments
were edited by a less qualified quorum and its editing possibilities were exhausted as
predicted by the Original Constituent Power.
Having 91 amendments for a Constitution that’s only been around for 28 years is truly
remarkable. But in order to picture or address a determined scenario, certain key information
needs to be extracted.
Based on Donald S. Lutz’ “Toward a Theory of Constitutional Amendment”, we’ll be
able to put the 1988 Constitution under a different light.
Lutz’s work originated from an empiric research on the Constitution of the 50 North
American states to only then, identity the same conclusions on amendment models and the
amendment process particularities. The present article will be based by those implications in
order to analyze Brazilian Constitution.
The author uses 3 basic concepts in order to trace similarities and classify national
constitution trends, which are: the number of amendments made on an yearly basis, the
amount of words in the Constitution and the indexer identified by him through analyzing the
process of constitutional amendments.
In its research, the author analyzed Brazil but his information was obtained
considering a constitutional reality dissolved by the Constitution of 1988. So it’s important to
analyze the reality of the country once again, considering his research.
The amount of constitutional amendments in Brazil reaches 3,25 per year.
The Brazilian Constitution contains around 70.000 words.
The indexer of constitutional amendment process is of 1,754.
Based on these numbers, it’s possible to address some interesting propositions for the
reality of the country that were empirically validated by the author.
4
To reach that number, some points had to be considered. First of all, regarding the initiative, the author did not predict the possibility of an
amendment be proposed by only 1/3 or the members of one of the National Congress’ houses. So, the closest indexer with the lowest score
was elected, which would be of simple majority (0.50). Also, because the Brazilian Constitution predicts the possibility of initiative by
simple majority between the state assemblies altogether. The possibility of initiative by the Excutive Power chief has a 0.25 rating and
could bring the total índex to a figure below 1.75 as proposed by the author’s weighted average. The problem is that the minimum
discrepancy that would be measured by this operation, wouldn’t have the capacity of modifying the classification proposed by the author in
regards to the his final results, considering that the 1.25 indexer of 3/5 rating of the two houses is easily applied here. That’s the reason
why a simplified indexer of 1.75 has been admitted.
It’s seventh proposition takes notion in the sense that the higher the amount of formal
amendments on the Constitution: (a) the lesser is the possibility the constitution is being noted
as a higher order; (b) the lesser the possibility of ordinary legislation; (c) the higher the
possibility the Constitution is being noted as a Code; (d) the higher the possibility of the
formal amendment process is being subdued by Legislature.
It’s evident that the author’s proposition indicates a possible diagnosis or the reality in
Brazil that, nonetheless, needs to be validated by more extensive research, including a
compliance of empiric data. And for the purpose of this article, I restrict this analysis even
more to what the author named legislative supremacy, addressed in last paragraph’ subhead
“d”.
In Lutz’ work, as noted on table 6, Brazil in its actual days adapts in a context of
legislative supremacy, according to its reform general strategy, which can also be noted prior
the Constitution of 1988.
Considering this scenario, the majority amount on Legislative Power does not affect
the amount of amendments, because the legislative supremacy reflects minimum commitment
to what the author calls “American principles”. There’s a total of three principles, and they
can be translated to Brazil’s reality because they are unmistakably (or at least should be) part
of our Democratic State of Law. These principles are: popular sovereignty; deliberative
process; and normal legislation and constitutional matter distinction.
So Lutz, in one of his findings, affirms that an amendment rate between 0.75 and 1.25
indicates constitutional longevity, and that the interaction between the constitution’s extent
and its formal amendment process are able to explain the Constitution amendment rate. And
the reality of Brazil fits right in his previsions.
In this sense, proposition number 4 gains significance when it comes to Brazil, as the
author says as far as the constitutional amendment rate distances from a 0.75 to 1.25 gap, the
higher the possibility of the Constitution being substituted as a whole, and so, the shorter will
be it’s validity.
5. CONCLUSION
Introducing the process of reforming Brazil’s Constitution was the starting point of
this article in order to point out a possible issue: the high rate of constitutional amendments in
Brazil.
Brazil is going through a democratic period that just recently surpassed in length, the
dictatorial age experienced years ago. The Constitution of 1988 allowed Brazil to be
democratic again and it also contains several particularities which can be analyzed in future
academic articles, as some which still lack implementing, due to constitutional programmatic.
What good can come out of these arguments and attempts to materialize the
commandments on the Constitution if its longevity is in jeopardy? This is an issue that can’t
be ignored.
And given its importance, as it addresses the foundation of our Democratic State of
Law, it cannot be left unmentioned. The article ends up asking more questions than answering
them, but its purpose was mainly to investigate. The research begins identifying the issues and
a starting point is set here for future questioning.
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